New York civil-rights lawyer Michael Ratner was in the U.S. Supreme Court yesterday, flanked by the mother of one of the Guantánamo detainees he has represented for the past two years, unsure what to expect. After an hour, he was pleasantly surprised. First, Sandra Day O’Connor, and then Justices Souter, Breyer, Kennedy and even Scalia, indicated through their questions that they were skeptical of the government’s argument that the men Defense Secretary Donald Rumsfeld calls “the worst of the worst” have no legal right to file habeas corpus petitions in U.S. courts.
The justices seemed so receptive to arguments that Mr. Ratner and his lawyers have been making for nearly two years that Mr. Ratner left the courtroom saying, “I am really upbeat, really optimistic. The government’s argument to close the courthouse door was skeptically received.” For Mr. Ratner, the mere receptiveness of the justices on the nation’s highest court is a personal vindication. Since taking the first Gitmo case back in late 2001, he’s been besieged with e-mailed vitriol. He’s saved these mementos of lawyering in interesting times. Here’s a sample:
“Mr. Ratner–just caught you on MSNBC. You define the term ‘a pencil-necked liberal geek.’”
“If you were my neighbor I’d kick your ass nonstop…. If you love Iraqis so much why don’t you pack up your little jew outfit and move there permanently.”
“You should be charged with treason against this country and thrown in jail for the rest of your life.”
Mr. Ratner began attracting the abuse of his fellow citizens when he decided, with the W.T.C. ruins still smoking, to file habeas corpus petitions for some of the “enemy combatants” imprisoned at Guantánamo Naval Base-when, he points out, no one else would take them on as clients.
A Columbia Law grad who heads the New York–based Center for Constitutional Rights, Mr. Ratner is no stranger to representing non-Americans. He helped win the release of the Haitian refugees locked up in the Gitmo AIDS camps in the 1980’s, and has also worked on behalf of brutalized Nicaraguans. Under his direction, the center filed suit against the NYPD on behalf of Amadou Diallo, the African immigrant shot to death in a police blunder in 1999.
He was, however, a bit leery of the men in Gitmo. He’d never worked for a group as universally loathed as the Gitmo detainees. Mr. Ratner’s first Guantánamo client, David Hicks, an Australian high-school dropout who found his calling as a Taliban warrior, was no Diallo. Mr. Ratner has yet to meet Mr. Hicks, but he’s familiar with his clients’ views. In one letter home from Afghanistan, Hicks wrote about “Washington-Jewish domination” and the “Jewish propaganda war machine.”
Mr. Ratner was downtown, jogging along the Hudson on Sept. 11, 2001. One of his kids’ soccer coaches was killed in the World Trade Center that morning. Like all New Yorkers, he went through a period of grief and shocked mourning. Quite soon, however, the C.C.R.-founded in 1966 by civil-rights lawyers including William Kunstler-became involved in trying to help New York–area Muslim immigrants who were being rounded up willy-nilly by immigration officials in the weeks following the attacks.
Two months after the attacks–Nov. 13, 2001–to be precise, Mr. Ratner turned on the radio to hear that the President had ordered unlimited detention and military tribunals for a certain class of non-citizens.
“You wake up one morning and there’s a military order coming out of the President,” he said. “Here we have this guy, George Bush, who I consider to be a boob, acting as Commander in Chief, not just in Afghanistan, but with domestic detentions. It came as a total shock. No precedent for it. The parallel would be the Japanese camps, and the Civil War when Lincoln suspended the writ of habeas corpus. The idea that under his order you could simply detain people, and the President would designate who should be detained, was shocking. It goes back to 1215, the Magna Carta. At that point, I decided we ought to represent people before the tribunal.”
Mr. Ratner’s first hurdle was to find a client. Since the men being transported to Guantánamo weren’t allowed to contact their families, let alone call their lawyers, this took some doing. Eventually, the C.C.R. filed suit on behalf of Mr. Hicks and a pair of young Muslim British citizens.
In those first months, no other organizations or law firms jumped to represent the detainees, despite the general alarm among civil-rights lawyers. Mr. Ratner quickly realized the unpopularity of the Gitmo cause. After he appeared on various television shows, the abusive mail and e-mail was addressed to him personally.
“We put together a group of death-penalty lawyers first, because they were the only people I could get to work with us. They were used to representing utterly unpopular clients in terrible situations.
“The center was not used to it. We were used to representing people with whom we were generally in agreement. So this created a bit of tension within the center. Even I asked myself, ‘Am I going to represent someone who actually bombed the World Trade Center?’ Some people were saying, ‘Should we be doing this?’ But by that time, we already had the roundups, the Patriot Act and then this. It just looked to me like the civil-liberties situation was going to get pretty bad out there, and not just for non-citizens.”
Eventually, the C.C.R. was joined by other firms and associations. The Kuwaiti government hired the white-shoe firm Sherman and Sterling to represent the Kuwaiti nationals in Camp X-Ray. Federal courts at the lower and appeals level dismissed the case, agreeing with the government that the Guantánamo non-citizen detainees had no recourse in the American court system.
Then last November, in an unexpected move, the Supreme Court agreed to hear the case. Dozens of organizations and individuals-including retired military officers and the ACLU-filed amicus briefs in support of the C.C.R.’s position.
The Supreme Court surprised both sides by taking the case-and according to Mr. Ratner, the government appears to have changed its course in response. Since the day in November when the court announced that it would hear the case, 58 men have been transferred (making a total of 134 detainees transferred either for release or detention in their native countries). In March, Mr. Rumsfeld announced that the detainees would now be granted annual reviews of their status. Officials recently allowed The New York Times to photograph the inside of the cells, complete with chess boards and Korans suspended in special hangers.
More interestingly, the government released two of the four plaintiffs in the C.C.R.’s original case (Mr. Hicks was transferred to await a tribunal). Some observers suspect this was an effort to moot the case. To guard against that possibility, the C.C.R. added to the Supreme Court filing five more detainees three weeks before the hearing.
Mr. Ratner went to England in March and met his British clients for the first time. “Their story is that they were over there [in Afghanistan] going to a wedding and they got scooped up. These guys were as far from being terrorists as my own kids.”
Mr. Ratner said the young men described a kind of psychological torture in which letters from family members were waved before them during interrogations as bait. They also said they had been offered housing and money in exchange for agreeing to become “listening posts” or informants for the U.S.
The fact that Guantánamo has become an international symbol of American jack-booted-ness is all the more reason for the government to try to get the place more in line with the rule of law, according to Mr. Ratner. Even Mr. Hicks’ government-appointed military lawyer, Maj. Michael Mori, joined a press conference in Britain last month and called the tribunals a “complete throwback to the military commissions of the 1940’s.” While in England, Mr. Ratner was fêted along with other co-consuls by a Tory member of Parliament and invited to speak at an Oxford forum organized by the law firm Freshfields Bruckhaus Deringer.
“One thing that came out at that forum is that Guantánamo has become iconic in the Muslim world for a lot that’s wrong in the U.S.,” Mr. Ratner said. “It is now a place where people can dump a lot of anti-Americanism. That picture with a man kneeling on the ground in a red jumpsuit and a Marine with a crewcut standing over him-that is emblematic of how Muslims in certain parts of the world feel they have been treated by the U.S.”
A spokesman for the Defense Department, J.A.G. attorney Major John Smith, said the recent releases from Guantánamo were not related to the Supreme Court taking the case, nor were they part of a charm offensive. In its brief before the Supreme Court, the government has argued that there was precedent for keeping the detainees out of U.S. jurisdiction, citing a 1950 case brought by some German P.O.W.’s caught in China at the end of World War II. The Supreme Court refused to take jurisdiction then.
“International law allows you to hold people until the end of conflict,” Major Smith said. “The U.S. government has said we don’t want to hold people longer than necessary, and if they don’t have valuable intelligence or have not done something.” He said the recent releases “really are just about us continuing on with our policy.”
Beyond the fact that Guantánamo has been a P.R. disaster for the United States, Mr. Ratner said he’s concerned about the long-term effects on American law, especially if the Supreme Court upholds the government. “I am afraid that the assertion of executive authority is so great here that it has actually changed the way the modern world or the post-Enlightenment world is going to look-which is to say, it’s going back to medieval times.”
Solicitor General Ted Olson-whose wife Barbara died in one of the 9/11 planes-represented the administration, opening his argument with a reference to the war on terror.
Mr. Ratner asked retired federal Judge John Gibbons of the Third Circuit to make the C.C.R.’s argument. His choice of the soft-spoken Republican was no accident. He wanted to drive home to the justices that-contrary to popular belief-suspension of habeas corpus by executive order disturbs rock-ribbed conservatives as well as pencil-necked liberal geeks.