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Michael Ratner: It’s outrageous to equate people who demand the rule of law with those who break it

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network, today coming from our studio in Toronto. Yesterday morning, President Obama spoke about Guantánamo, transparency, and national security, and here’s what he had to say.

Courtesy: C-SPAN

BARACK OBAMA, US PRESIDENT: We see that above all in the recent debate, how the recent debate has obscured the truth and sent people into opposite and absolutist ends. On the one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism and would almost never put national security over transparency. And on the other end of the spectrum, there are those who embrace a view that can be summarized in two words: anything goes. Their arguments suggest that the ends of fighting terrorism can be used to justify any means and that the president should have blanket authority to do whatever he wants, provided it is a president with whom they agree. And both sides may be sincere in their views, but neither side is right. The American people are not absolutist, and they don’t elect us to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values, nor sacrifice our values for our security, so long as we approach difficult questions with honesty and care and a dose of common sense. That, after all, is the unique genius of America. That’s the challenge laid down by our Constitution.


JAY: To discuss President Obama’s remarks, I’m joined by Michael Ratner. He’s the president of the Center for Constitutional Rights, and he’s also a board member of The Real News Network. Thanks for joining us, Michael.


JAY: Well, if we listen carefully to what President Obama says, one of your other credits might be you’re in the camp of one side of the absolutists, because the Center for Constitutional Rights has been fighting for transparency, release of all the photographs of Abu Ghraib, and you’ve been pushing for prosecution for what you see as criminal deeds over the last eight years. So how do you respond to his charge?

RATNER: It’s pretty remarkable to me that he would have equate on one side the Cheney et al people who advocate torture, continuing people at Guantánamo, continuing military commissions, having preventive detention, all of those types of depredations of the Constitution, and then put us on the other extreme, saying we’re extreme also or absolutist because we actually want the rule of law. It seems to me that that equation is pretty false and outrageous. What we want is the rule of law. We want the constitution obeyed. We want to ensure that there’s not torture, to make sure that people aren’t having held in preventive detention, to make sure there’s not military commissions. In other words, we’re asking not about an opinion or about being weak or strong on security; we’re saying the Constitution requires certain kinds of lawful processes.

JAY: So, now, on the question of military commissions, he spoke quite specifically about it, and he said there’s a tradition of military commissions dealing with people who are captured on the battlefield. There’s nothing unconstitutional about it.

RATNER: Yeah. There’s a tradition. The last one was about 70 years ago. So if 70 years ago counts as a tradition and that was one that took place right during a real shooting war, the Second World War, and even that one from 70 years ago, Ex parte Quirin, has been heavily criticized. That’s just not true, what he was saying. There’s no tradition, particularly no tradition for these kinds of cases, for alleged terrorist acts. We find the idea of military commissions here to really—to be anathema to any concept of freedom, to any concept of a fair trial. What they do is they allow evidence of—that’s coerced.

JAY: Well, he says they won’t. He says that the military commissions under the Obama administration will not allow evidence as a result of torture and that there will be certain safeguards that are similar to the kind of safeguards one would get during a normal judicial proceeding.

RATNER: Yeah, this is all just rhetoric. He says no torture evidence and no evidence of a cruel, inhuman, and degrading treatment, but you’re allowed to use coerced evidence, evidence that falls short of those higher legal standards. You would never allow that evidence in a federal court. That’s one thing. Secondly, they allow hearsay evidence, which is broad hearsay evidence, but you can’t cross-examine the person giving the evidence. Big problem. Third, of course, the judges are not lifetime judges; they’re essentially political appointees. And the stronger position here is that, really, why do they need these things? I mean, what are they doing here? And the reason the military commissions are used is ’cause you can write the rules after the person has allegedly committed a crime. When you write the rules afterwards, what do you do? You write the rules in favor of easy convictions. And that’s very clear. They want to use these because they want easy convictions. They don’t want to give people fundamental federal rights–

JAY: Now he also—.

RATNER: And it’s something that should never happen.

JAY: He also is fighting on the other front against the other camp of absolutists, who he characterized as people who say everything goes, and we can assume he means Cheney and Bush in that camp. But he couldn’t get his bill through the Senate to get funded to close Guantánamo. So what do you make of the people he’s fighting, first of all, even in his own party, never mind Cheney?

RATNER: Well, you know, I think he’s waffled for a few months on these issues. He hasn’t come out strongly enough. He didn’t need the money to be able to close Guantánamo. He has the authority to bring people into the United States, you know, to allow the court to bring them in. He’s fought the court verdicts that have said people should come into the United States. He didn’t need to create that fight. That’s the first thing. The second thing is, you know, as far as I’m concerned, the Democrats who’ve been opposing even that and have been appealing to, really, nativism, to, quote, “patriotism,” to issues of safety. You know, they should be ridden out of Senate on a rail. I mean, a guy like Reid, who’s the majority leader in the Senate of the Democrats, made outrageous statements about safety. It’s just not true. Obama took on some of that successfully by saying we have prisons that can keep people, etcetera. At the same time, he’s getting a huge assault on the right wing. And the fact that Cheney was allowed to really give an oppositional speech yesterday is particularly egregious. And that that’s actually the debate right now, between a failed policy of torture in Guantánamo—. And just remember, it’s the Republicans who let 550 people out of Guantánamo, and somehow they’re pinning the whole situation on President Barack Obama, who only has to get 240 people out of there. So the idea that they’ve been able to turn the tables on him does not bode well in terms of Barack Obama’s standing up for something and really pushing back. It should have never gotten to this point. He should have acted more decisively in the beginning.

JAY: Now, I’m not entirely clear from his speech what he’s actually planning next. As you said, he doesn’t need the money to close Guantánamo. He certainly doesn’t need the money to bring people to the US for trial. Is he implying in that speech that he’s going to go ahead with that process anyway?

RATNER: He’s implying a few things in the speech, and somewhat directly. One, he is going to go to Congress at some point for modifications in certain laws that will allow him to do some of the things that we disagree with, the basic two issues in the speech that we disagree with, and then I’ll go to the other way as he plans to close it, or he’s going to set up military commissions, which we discussed. For that he has to go to Congress to get additional law. But in addition to military commissions, he is going to try, he said, as many people as he, quote, “can” in the federal courts of the United States. That’s something that he can do without going to Congress. He can bring people here for federal court trials. You ought to do it quickly. There’s probably 15 or 20 people that need to be tried like that. Ought to be done.

JAY: Did you get any sense that he’s going to? Or is he really more committed to military commissions, military tribunals?

RATNER: I think we can’t tell yet. I think that speech indicated he would prefer more federal trials. But, again, it’s not there yet, so we don’t know on that. We consider, obviously, as I said, military commissions to be completely off the table. It shouldn’t happen. But that’s one thing he’s planning to do. The second, he says, for people that he cannot bring before federal courts or military commissions, he plans to use preventive detention. And he outlined what he thought might be a preventive detention scheme. To the extent that the Center for Constitutional Rights is upset about any part of this speech, it’s that particular aspect. Look what Obama did. He went to the national archives, he wrapped himself in the Constitution, he wrapped himself in the Bill of Rights, and then he essentially violated the provisions of those two documents by saying he would set up a preventive detention scheme, something really that no other country in the West has at all. And I would really call it a perpetual detention scheme. It means that because some someone is, quote, “dangerous,” they can never be let out of jail, and they will never be charged and tried with a crime. If that happens—.

JAY: What is your answer? When he says they have intelligence, a handful of people of a handful, but who have been—I think he gave the criteria they’ve been—they trained with bin Laden, they’ve made public announcements that they would like to kill Americans, and so on. He established a kind of criteria for this. What would you do with people that intelligence fully believes you let them go they’re going to do something to harm Americans, but there isn’t enough evidence to win in a trial? What would you do with them?

RATNER: You know, my view is you have to charge them and try them for a crime. You do not have a choice in this society of just arresting people because they want to say they want to cause harm to America, ’cause, you know, if you did that, you’d be arresting demonstrations, tens of thousands of people all over the world. We do not have a system where thinking bad thoughts, even training in a training camp, although that is a violation of the law if you’re training in a terrorist training camp, you can charge people. Many of those things you can charge people. You can’t charge people, at least overseas, for saying they want to cause harm to America. Or even here I can say that.

JAY: But they’re saying that these are, in theory, some people who were caught on a battlefield, in theory.

RATNER: Well, what’s that theory? What is their battlefield? I mean, if you’re picked up on a battlefield in a shooting war, you can be charged with a crime if you’re a terrorist. There’s no issue about that. Or, if it’s a real war, you can be held in detention under the laws of that country. So they could hold people to the extent they have those laws in Afghanistan, under the laws of Afghanistan, if they’re picked up on the battlefield. But that’s not who we are talking about here. These are not—the Guantánamo people, almost none were picked up on the battlefield.

JAY: Something that President Obama and Dick Cheney seem to agree on, which is going back and litigating the last eight years is not a very good thing to do. Cheney says it’s criminalizing policy differences, and President Obama says something similar, that there’s enough due process in place. But he obviously does not seem eager to litigate. He makes a comment how going into litigating the past eight years just opens up a lot of useless debate in Washington. What do you make of this?

RATNER: I never understood that torture was a policy issue. We have a criminal law against it. We’ve signed a treaty against it. You torture, you commit a crime; you commit a crime, you should be investigated; if you’re found guilty, you go to jail. It’s pretty straightforward. That’s not a policy issue.

JAY: And what about the question of the war itself? It’s not even being discussed, the whole issue of an illegal war that may have killed a million people.

RATNER: There’s no issue. That’s—the penultimate crime coming out of Nuremberg in Germany is an aggressive war. There’s no doubt we made an aggressive war on the country of Iraq. There’s no doubt that that’s the major war crime, because of course it embodies every other war crime—torture, murder, bombing, the whole business. So, of course, that should be, except that law, there’s no real law in US law for making an aggressive war. There’s perjury and there’s impeachment and that kind of stuff. So that’s not really a crime that we can get at under our domestic laws. Torture we can definitely get at. And the whole idea that Obama thinks that somehow we’ll let bygones be bygones and I’m going to change the policy of not torturing going forward, which I give him credit, mostly 90 percent credit for doing and saying we are not going to do that, the problem is you have a guy like Cheney saying, “I did it, I water boarded, and I’ll do it again,” for all Obama says, “I’ve changed the policy,” the next president in there could simply agree with Cheney, and again we’ll be a nation of torture. So without prosecutions, without a public statement that this is wrong and that people will pay a price for it, the next administration, the next Cheney of the world, will again put us on a torture program. If that’s what Obama wants, he’s going to get it.

JAY: Thanks very much for joining us, Michael.

RATNER: Thank you, Paul.

JAY: And thank you for joining us on The Real News Network.


Please note that TRNN transcripts are typed from a recording of the program; The Real News Network cannot guarantee their complete accuracy.

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Michael Ratner is President Emeritus of the Center for Constitutional Rights (CCR) in New York and Chair of the European Center for Constitutional and Human Rights in Berlin. He is currently a legal adviser to Wikileaks and Julian Assange. He and CCR brought the first case challenging the Guantanamo detentions and continue in their efforts to close Guantanamo. He taught at Yale Law School, and Columbia Law School, and was President of the National Lawyers Guild. His current books include Hell No: Your Right to Dissent in the Twenty-First Century America, and Who Killed Che? How the CIA Got Away With Murder.

NOTE: Mr. Ratner speaks on his own behalf and not for any organization with which he is affiliated.