YouTube video

Michael Ratner: 10 years after the Center for Constitutional Rights won a major civil rights case that ended or limited torture of Guantanamo detainees, 149 people remain in detention though 88 detainees have been cleared for release

Story Transcript

ANTON WORONCZUK, TRNN PRODUCER: Welcome to The Real News Network. I’m Anton Woronczuk in Baltimore. And welcome to another edition of The Ratner Report.

Now joining us is Michael Ratner. He’s the president emeritus of the Center for Constitutional Rights in New York City, and he’s also a board member of The Real News Network.

Thanks for joining us, Michael.


WORONCZUK: So what do you have for us this week?

RATNER: Well, I want to talk about a case that the Center for Constitutional Rights and I was deeply involved in, and it has to do, of course, with Guantanamo–not of course, but that’s what it does, and which, of course, still has 149 people at Guantanamo. Eighty-eight have been cleared for release, not released yet. And I’m talking about it today in particular because we’re coming up on the tenth anniversary. On June 28, 2014, is the tenth anniversary of the Supreme Court case that the Center for Constitutional Rights brought in an effort to give some rights to Guantanamo detainees. People may recall when Guantanamo was opened George Bush said they have no right to test their detention, no right to habeas corpus, they can be held incommunicado. The Center thought that was offensive, unconstitutional, immoral, inhuman, etc.

We went to court, and the case that we won on June 28 was called Rasul v. Bush. It was named after an English Muslim who was in Guantanamo along with some other plaintiffs that we had. And it was a significant case. It said that the people at Guantanamo had the right to test their detention in a court.

Ten years have now passed since that victory, 12 years since Guantanamo was opened. And despite our winning this right of habeas corpus for the people at Guantanamo, as I just said, it remains open with 149 people there.

What the case did for us, of course: we got hundreds of people out in the last ten years, not all because of litigation, but I think the threat of litigation is what did it. What it also gave us was the right for attorneys, who started to visit Guantanamo in September 2004, to go to Guantanamo, find out about the torture that was occurring there routinely, what we call the Donald Rumsfeld techniques, everything from stress positions, sleep deprivation, sexual humiliation, dogs, the whole gamut of stuff that we’ve seen in torture under the Bush administration. So we were able to at least limit that, if not stop it, because we got attorneys in under that litigation.

When we won the case in 2004, The New York Times called it the most important civil rights victory in 50 years. Really, that’s going back to Brown v. Board, the case of the Supreme Court that desegregated the U.S. school system.

Many of the attorneys I was working with–and there were the work that many in the early days. A lot started after that. Half a dozen of us, a dozen of us, some of those attorneys thought that winning that Rasul v. Bush case would be the end of Guantanamo, the administration couldn’t sustain Guantanamo if we could get into courts, etc. Unfortunately, those people who predicted that were wrong. I was never that optimistic. My political experience tells me in this country that the government never gives up, that it fights for its draconian measures relentlessly.

And what happened in this case is that all three branches essentially have conspired together, if you want to call it that, to keep Guantanamo open.

After 2004, Congress kept passing laws to try and reverse that decision. Finally, in 2008, the Supreme Court again struck down Congress and said, what you’re doing is unconstitutional, people have a right to test their detention in court. It goes back to the Magna Carta, of which we’re coming up on, actually, the 800th anniversary, from the year 1215, the English charter of our liberties. So they struck down Congress. Despite that, Congress has continued to try and cut off funds, and I’ll talk about that as we get to the end of this piece. So Congress tried to stymie the decision, and did successfully for a number of years.

The courts have done nothing since 2008 to remedy Guantanamo, and they have allowed the lower courts to simply keep people there, despite our winning victories in the courts releasing people. So the courts have been terrible. Supreme Court hasn’t touched it for the last five years.

And the presidents. Of course, Bush did let some people out, but of course again fought us all the way on getting the place closed. President Obama, despite many words, you know, written in many speeches and many orders, has failed to carry out the will that he claimed he would have. He’s been basically a person of clay feet and you’d have to say spineless.

So all three branches of our government have come together to make sure that the decision we won ten years ago in Rasul would never, never be implemented in full.

I want to give people some sense of what it took to bring that first case, the odds and the mood. And I want to recall I spent 12 years on Guantanamo, along with a handful of other lawyers who began. I was in my late 50s when I started. You can do the math. I’m much older right now. And I think in that 12 years how hard the struggle has been for all of us, but at the same time I’ve had a life to live. I’ve seen my children grow up. I’ve seen them go to college. I’ve seen them choose careers. I’ve seen them choose partners. Other attorneys that I work with have done the same. Think about the people who’ve been through Guantanamo or remain there. They spent the 12 years not being able to hug their children, not being able to see them grow up, not being able to hug their partners, not being able to participate in their families as fathers, as brothers, as children. So whatever we’ve done the 12 years, you know, it’s nothing compared to the suffering that this country and these three branches of our government have inflicted on hundreds of people at Guantanamo and continue to inflict on the 149 who remain there.

Yesterday, in honor of the anniversary, I actually–we came together with some 70 of our attorneys who now work with us–there was actually 600 altogether, or there were at the height–and it was an incredibly moving meeting to see these attorneys from the, you know, biggest law firms, you know, Jewish, Christian, Muslim, all over the place politically, willing to understand that it’s a fundamental right to go to court and test your detention. It’s been a remarkable, a remarkable experience in terms of building that lawyers movement to try and close that prison. They even formed what’s called the Guantanamo Bay Bar Association, and they have this hat, which I think you can see here. It says Guantanamo Bay Bar Association. And the people who were involved in this are part of that really heroic page in legal history, a movement of lawyers to actually shut the place down.

I want to give a brief history of how we began. I remember like yesterday, November 13, 2001, President Bush issues an executive or military order saying that he was taking to himself the right to pick up any person anywhere in the world, take them anywhere he wanted, not give out their names, give them no right to go to court, and hold them incommunicado. What I didn’t realize the time of the order, of course: incommunicado detention is basically saying, we’re going to torture you, which is of course what happened.

We looked at that order at the center and we said, this is outrageous. Even if it says, or Rumsfeld, these are the worst of the worst, you can’t just take away those kind of rights from people. Everybody has a right to be free from the anathema of executive detention, which is what this was and what it remains. We were shocked and outraged. We were determined at the Center for Constitutional Rights to represent the first of the Guantanamo detainees.

We reached out to find other human rights allies. Amazingly and shockingly, we found no other human rights organization, litigation human rights organization, that was willing to join us–remember the time, two months after 9/11–willing to join us in taking on these cases. We were out there completely alone. And, you know, when I think about, yes, those organizations have come back now and they’re all helping and representing people, but, you know, the time that counts is the time of crisis. The time that counts is when you think, when you take this yes, we may lose our funding, yes, people in the country going to hate us, yes, we may not win this case at all, but there’s hundreds of people sitting in a prison incommunicado, tortured, etc., and we have no choice but to take it, despite the risks to our own organization, reputation, etc. And that’s the moment that it counts.

So, yes, am I thankful that other human rights groups have joined us now? Sure I am. But am I disappointed and dismayed for what happened two months after 9/11? Sure I am. We did get some individual lawyers to join us–Joseph Margulies, Clive Stafford Smith, two people who were death penalty lawyers, who played a very important role as wentt forward. We also had a big law firm, surprisingly: Shearman & Sterling and a man named Tom Wilner represented the Kuwaitis and joined the few case a few months later. I was quite amazed by that. Quite remarkable that they were willing to do that.

In any case, jumping forward, January 11, 2002, a few months after 9/11, the first plane goes to Guantanamo. We’ve all seen the pictures, the people chained down in the plane, you know, the masks, their hoods, put into Camp X-Ray, etc., incommunicado. We eventually, because some lawyers from various countries said they had been told by their countries that some of their citizens were at Guantanamo, they wound up getting David Hicks, an Australian, three people from the U.K., the Tipton Three, and we went to court with them.

What was interesting is we couldn’t–it was such a scary time. When we went to court, the District of Columbia, we had to get another lawyer who was admitted into the district to sign the papers. And actually the lawyers were too scared to even sign our legal papers that we were going to file in the District of Columbia. Finally we got lawyers to do that. Some courageous lawyers did that. But at the beginning, that’s what it was like.

We lost the first two cases. We lost the district court, we lost the court of appeals. We never expected the Supreme Court to take it. In late 2003, the
Supreme Court takes the case. Even at that point, we have a handful of lawyers, half a dozen of us. We have only one bar association joining us in the Supreme Court, the New York City Association of the Bar. Very slim chance, we thought. In fact, we won the case in the Supreme Court, June 28, 2004. We won it six to three. Shocked all of us. In part we won it because it was the time of the revelations about torture, and the very week we had the arguments, Abu Ghraib torture came up, and the government kept saying, trust us, we’re treating people well. But the court wasn’t willing to say, we’re never going to look at what’s going on at Guantanamo; we’re going to look at it. And so they said, yes, you have a right to habeas corpus–a fancy word for saying you have a right to go to court and test your detention.

At that point, 2004, we put out a call to lawyers. Hundreds of lawyers joined us. Eventually, 600 lawyers came to work on the Guantanamo cases, perhaps at that point, I would say, the bars’ or the attorneys’ finest hour that we probably ever had in this country. And it remains so.

So where are we today? As I said, 149 people remain there. Eighty-eight–I want to stress that–more than half have been cleared for release by the United States government, cleared for release, and they’re still at Guantanamo. Why is that? I gave some of the reasons–a week-kneed Obama, Congress, the courts, etc.

But, of course, and I as I once said on this program a few weeks ago, the trade of the, quote, Taliban, of the Taliban for Bergdahl, the U.S. soldier in Afghanistan, had this huge backlash among, you know, all kinds of people who simply want to, you know, make points and be political in a negative way, not really that they probably cared very much. And as a result of that, our wonderful House of Representatives (of course, it’s Republican, but Democrats went along, some of them) passed two pieces of legislation–not legislation yet, but so far in the House they’ve passed–prohibiting transfers from Guantanamo to Yemen. The majority of people of the 149 are from Yemen and there’s been no transfers to Yemen. And then they also in the House prohibited all transfers from Guantanamo for a period of a year. Whether that will be put into the final legislation I can’t say, but it doesn’t look promising to me that we’ll beat all of that back, because the Senate then voted to prohibit Guantanamo detainees’ transfers to the United States and put restrictions also on sending Guantanamo detainees to foreign countries. They have to reconcile these bills, etc. And the president has threatened to veto, but Obama always has threatened to veto these, quote, restrictions on his ability to close Guantanamo. He never has. He always says, despite what you do, I can do it anyway. And, of course, that’s what he did with the Taliban Bergdahl transfers. He didn’t care what the legislation says. I just wish you would say that for the 149 who are there, either get them out of there, the cleared ones to other countries, the ones he doesn’t think he can release. Then he should just get them tried, charged and tried. Hasn’t done it. Think about it: ten to 12 years. I’m pessimistic, particularly before the November elections. We’ll see what happens after that.

At the same time, as this group of lawyers who I met with yesterday at this reception to sort of honor the people who made such strides in fighting for the Guantanamo rights, they’re fighting on. And I remember when I spoke to them yesterday, I recall I talked about the myth of Sisyphus. We all know that. You take a big rock, you get it up the hill and you get near the top; the rock rolls back down on you. And I said, in some way it’s like the myth of Sisyphus, the struggle to close Guantanamo, but with this difference: each time we push the rock up the hill a bit, get a release, we make a gain, some releases, and we move forward, and we begin the next phase of our struggle closer to the top of the hill, and our goal of course to get the last 149 out of there and to close Guantanamo.

So I feel that we’re still fighting in a very strong way. It’s been years of fights. But as I said, think about the people at Guantanamo, think about one of the people who I know about, Shaker Aamer. He’s a U.K. civilian–a U.K. resident. And he’s been there now almost 12 years. He has kids he’s never been able to see grow up, a wife he’s never been able to hug for that period. So when you think about closing Guantanamo and you think about the struggle we’ve all put in, think about Shaker Aamer and the others who have been put into this–you would call it utter legal limbo, in which certainly no one in our government seems to care about them. But we fight on.

So we hope by next year that Guantanamo will no longer be really the immoral, illegal, and completely unconstitutional hellhole that it remains.

WORONCZUK: Okay. Michael Ratner, thank you so much for that report.

RATNER: Thank you for having me on The Real News.

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


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

Creative Commons License

Republish our articles for free, online or in print, under a Creative Commons license.

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.