In memoriam

Michael Ratner, RIP

By Jack Goldsmith
Thursday, May 12, 2016, 7:16 AM

I am a perhaps-improbable admirer of Michael Ratner, whom I was sad to learn passed away yesterday.  I interviewed Ratner six years ago for my book Power and Constraint and thought him such a significant figure in the story of post-9/11 accountability that I built a chapter around him (called “The GTMO Bar”).  Here is the extraordinary story of his reaction to 9/11 that I patched together from interviews and other sources:

Reading the New York Times in his Greenwich Village apartment on the morning of November 14, 2001, Ratner learned that President Bush had issued “Military Order Number 1.”  He was stunned to read that the Commander in Chief had unilaterally created military commissions and asserted the power to detain any noncitizen deemed a terrorist. But what outraged him most was an obscure provision near the end of the order providing that a detainee “shall not be privileged to seek any remedy or maintain any proceeding [in] any court of the United States.” Ratner thought this provision illegally abolished habeas corpus, the ancient writ protected in the Constitution that allows a prisoner to challenge the legality of his detention before a court. “I felt as if there had just been a coup d’etat in America,” Ratner thought at the time. “It was a watershed moment for a country that I still thought had some semblance of a democracy and some adherence to the principle that Presidential authority was under law.”

Ratner had made a career out of representing unpopular clients, and he immediately thought that the CCR must represent the first person detained under the order. But when he and his staff met later that morning at CCR headquarters just twenty blocks from the still-smoldering 9/ 11 ruins, they hesitated. “We were all extremely concerned that we might be representing the conspirators who were involved in 9/ 11,” Ratner later recounted.  Some in the CCR worried about the effect on fund-raising. Some worried how representing terrorists would serve the CCR’s aims of using law to promote progressive social change. And some worried that it might be personally dangerous to represent the terrorists. After a week of intense deliberation, the organization decided to go forward and seek clients. “The issue of denying habeas corpus was so fundamental that no matter what, we had to do the case,” Ratner later explained. The CCR president had bucked himself up and rallied his troops by reminding everyone of the organization’s refusal to represent Yusef Salaam, one of five young black men arrested in 1989 for raping Trisha Meili, the white Central Park jogger. CCR had declined Salaam as a client because the case was too controversial, but it was later embarrassed when DNA evidence exonerated all five men. “Look at what happened in Salaam’s case,” Ratner told the CCR lawyers. “You just don’t know. You just have to have these cases tested in the courts because you just can’t trust the executive.”

But getting the cases tested in court was easier said than done. “Zero, absolute zero” was how Ratner rated his chances of convincing the courts to review the detentions of the GTMO clients that the CCR began to gather in the winter of 2001– 2002.  … “Never in American history had the [Supreme] Court tried in any way to interfere with a war in progress,” noted Arthur Schlesinger Jr. in 1973.  Ratner knew firsthand about this tradition. In the 1980s and 1990s, he and his CCR colleagues, deeply involved in the antiwar movement, filed lawsuits challenging the legality of U.S. military and paramilitary action in Cambodia, El Salvador, Nicaragua, Grenada, Iraq, and Kosovo.   They lost every one. Ratner also had a bitter personal experience with Guantanamo Bay.  For a decade before 9/ 11, presidents had used the island as a detention facility for “undesirables” precisely because it was outside of U.S. sovereignty and thus beyond judicial review.   In the early 1990s, Ratner and the CCR represented a group of HIV-positive Haitians that President George H. W. Bush and then President Clinton had ordered detained on the island naval base after they were intercepted trying to come to the United States. They secured the Haitians’ release after a legal battle with the government.  But they suffered many defeats along the way that heightened Ratner’s pessimism about his chances with the 9/ 11 detainees. “I had learned that the United States could win some legal arguments that Guantanamo, because it was offshore, was a law-free zone; that the refugees we represented were not protected by the Constitution; and no court could hear their cases or protect their rights,” he later said.

In spite of these obstacles, on February 19, 2002, the CCR filed its first GTMO lawsuit on behalf of Shafiq Rasul, a British citizen picked up in Afghanistan.  It was one month after the detention facility at GTMO first opened, and just two weeks after the Bush administration declared that none of the prisoners there would receive legal rights under the Geneva Conventions or access to any court. Almost no one noticed Ratner’s lawsuit. “Few people or reporters seemed concerned with efforts to gain a hearing or winning any rights for the Guantanamo detainees,” Ratner later said. “The mood in the country was such that CCR could not even find a cooperating attorney in D.C. to help file the papers— even progressives were afraid of the case.”  Ratner’s pessimism about his chances were confirmed five months later when a respected federal judge, Colleen Kollar-Kotelly, dismissed the case. The writ of habeas corpus does not extend to “the military base at Guantanamo Bay, Cuba,” she reasoned, because it was “outside the sovereign territory of the United States.”  The following year, respected judges on the court of appeals unanimously agreed. The legal precedents, looked at dispassionately, did not permit Ratner’s clients to go to court.

On June 28, 2004, however, the Supreme Court set off on a very different course. It reversed the lower courts and ruled that despite the Eisentrager decision, Ratner’s client and every other detainee at GTMO could challenge in court “the legality of the Executive’s potentially indefinite detention.”

The rest, as they say, is history.  The GTMO Bar formed around Ratner’s CCR and won numerous significant legal victories about presidential accountability to law and courts in wartime—in Hamdi, Rasul, Hamdan, and Boumediene most notably.  These and related cases had a huge impact—in guiding and restraining the Executive, on the hundreds of men released from GTMO as a result, on the treatment of detainees, on targeting practices, and in rebutting the idea that courts don’t get involved in constraining the President during wartime.  Ratner and his colleagues also, in his words, took “what I consider the most egregious aspects of what I call the national security state since 9/ 11, and made them public debating issues” and therefore better enabled courts and Congress and the American people to engage in the issues, and to address them. 

Ratner was disappointed when President Obama continued some of the Bush era policies, especially military detention.  “We really thought that Obama wouldn’t fight us in court on the rights of the detainees, that he would get the detainees either to another country or he would charge and try them,” Ratner once said.  But Obama did of course fight them in court, and, on the issues remaining in 2009, largely won.  These administration victories discouraged Ratner.  He said: “We lost on the enemy combatant issue, and the definition. We lost on the preventive detention issue, more or less. We lost on the military commission issue, more or less.”  He perhaps lost in his ultimate goal to eliminate these practices, but he succeeded wildly, and improbably, in bringing the rule of law to the post-9/11 wars. 

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