Aviva Stahl Interviews Michael Ratner – Transcript – PDF

2012 Aviva Stahl Interviews Michael Ratner

AS: How did you get interested in civil rights law? How did you make it to the CCR?

MR: Well came out of the ’60s. I went to Columbia Law School. Of course the ’60s were a period of vibrant social change in the United States. The major issues were the Vietnam War and the Southern civil rights movement, but everything from gay rights, to women’s rights, was on the table. And so that period radicalized me. I’d taken a year off from law school to work in the Southern civil rights movement on desegregation cases. King was killed in April of ’68, and that just devastated the country, you know all of us. There were urban rebellions in cities throughout the United States. I went back up to Columbia, my friends had taken over the buildings, over issues having to do with Vietnam, with racism, with issues like that. And at some point the authorities decided to clear the campus, and was out there, and big cops came out at night, and it was very unusual to have a northern, well off campus cleared by cops, it actually hadn’t happened in generations. And people were beaten badly, blood everywhere, 700 arrests. The people who defended us were progressive lawyers, left lawyers from the National Lawyers Guild. And really, it was a time in which the state was still killing people in Vietnam, there was still a huge amount of racism in the South, and in the North.

And so I never looked back after that. I went to clerk for the most radical judge I could find, for a year, who was Constance Baker Motley, a very famous pioneering judge who argued nine cases in front of the Supreme Court, an African American. And then I just applied to the center [the CCR], which was the place to be. The center was at that point doing the most important political cases in the country. It was defending the Chicago Eight case, who had been accused of rioting at the democratic convention, it was defending the Black Panthers, it was taking on warrantless wiretapping, it was involved in the Puerto Rican movement, we had a lawyer defending soldiers in Vietnam. It was very small, it was a collective at the time. But it was an incredible place to be at the front lines of social justice.

AS: This week has all been about the 10`h anniversary of Guantanamo Bay. You spoke about this briefly yesterday — that all three branches of government [Obama, the Congress and the courts] — have in some ways, made it impossible to close Guantanamo. Also, as an American, it seems as though Congress also has the support of their constituency, given the widespread Islamophobia in the States. I’m left wondering what you see in the future for the fight to close Guantanamo. What direction should we move in?

MR: It’s interesting. What’s noticeable in the United States is how the branches of government — Obama, the Congress, the courts — seem to be behind at least, backward, from the editorial pages in the country, most of which think Guantanamo ought to be closed. They may not think it for the same reason I think, they think, “Oh, it’d bad for the image of the United States” and all that sort of stuff. But even when we won the case early in 2004, we had the support of 72 editorial pages. So something is amiss, and I think it is Islamophobia, is what it is. And I think since 9/11, probably before it was just not noticeable, but since 9/11, there’s a huge amount of Islamophobia. And they’re all of one piece. Whether it’s having an FBI agent or a CIA agent in every single mosque in the country, they divided up the whole country, they decided they’re going to be in every mosque, interview all kinds of Muslims everywhere, from doctors, to lawyers, to everybody else, and essentially track down and have a database on, I don’t know – there must be 4 million Muslims in the United States — but they certainly have a database on a lot of people. And as long as that is out there, it’s going to be very hard to get our Congress and everybody else to move on changing it.

And so my view is always in these cases, it’s to do what made change when I was younger, what makes change today, what Occupy Wall St is. Is you have to really get people into protest, and into the streets. And we saw that beginning pretty heavily on the 10th [anniversary of Guantanamo], on the 10th anniversary on the 11th of January. We had hundreds of people in orange jumpsuits in Washington, we had 350 different demonstrations across the United States. And you can say this, and it is a victory of sorts, that at one time, everybody justified Guantanamo. I couldn’t even go on a TV show without getting death threats for it. Whereas, at least today, there is a lot of understanding that this is a bad idea. But it is true that Obama’s weakness and failure when he came in, has really opened up a very dark side of America, and allowed the Congress to go forward, and now we’re coming up to an election year, and it’s chances are low.

On the other hand, the contradictions are so great. The idea that they may make a deal now, release three acknowledged Taliban people and put them into Qatar… it makes the policy so crazy and absurd, that I can’t believe it can continue to sustain itself. But of course when we talk about Guantanamo, we have to really talk about the fact that Guantanamo physically is one thing, the practices that underlie it are another. Even if we were to close Guantanamo, and the way they [Obama] were thinking of closing it, was, let’s get the 89 people cleared out of there [89 people currently detained in Guantanamo have been cleared for release], but then let’s put the rest of the people in prisons in the United States. To me, that’s not closing it. Closing it is releasing everybody, and the one’s you’re not going to release, trying them, and if they get convicted, they go to jail, and if they don’t get convicted, they don’t. Of course, at this point, it’s ten years after the fact for any trial. But in any case, that’s closing it. And closing it is getting rid of the indefinite detention policy, and they’re not very close to that, considering that our government has just passed a new law that allows indefinite detention. We have gotten 700 people out of Guantanamo, we should acknowledge that, we have made it a national symbol of shame, those are all very positive. But there’s still obviously a huge amount of work to do, and how much do people care about it, when the economy is tanking, when we’re still killing people in Afghanistan. You know, it’s something that is a moral symbol of the degradation of the United States, but it’s a hard one to close.

AS: I listened to your commentary on the NDAA on the Law and Disorder radio show — and I appreciated your point that the law in some ways puts into print practices that we’ve been engaging in anyway. I also appreciated your emphasis that it’s wrong to focus on the fact that Americans can be detained indefinitely, because it promotes the notion of American exceptionalism. I’m curious what you think about the language toted by some human and civil rights organizations in opposing the NDAA — from the insinuation that it doesn’t matter whether non-citizens face military detention, to the notion that our civilian court system is “not broken, so why fix it” — that accused terrorists can even get fair trials in US courts. Where do we draw the line between fighting strategic battles, and using strategic rhetoric, and upholding human and civil rights for all?

MR: I’ve been thinking about this a lot, because I’m so angry about this issue that a lot of human rights organizations are saying that it’s great that Obama is not going to indefinitely detain American citizens, and we’ve won that victory. And other people arguing, the statute doesn’t say that, which of course, I think it clearly does. It says it can be done, it even has an exception in another section saying, this will not apply to Americans, by implication, that means that the earlier one does. But it is true Obama said flatly he’s not going to indefinitely detain Americans. So thinking about it today, I think the best thing the statute could have done was been explicit about detaining Americans. I actually disagreed with the fight. I think the best way to get rid of indefinite detention, it to apply it to Americans. Reminds me of the draft in Vietnam. If there’d been no draft in Vietnam, we would have had a longer Vietnam War, because there wouldn’t have been the protest. How are we going to engage protest in the United States if people think, “Well I’m safe, and who cares about the Muslims who are arrested?” I actually think if I were back in this fight, and I’ll probably say something outrageous like this soon, that I would advocate that the law apply to all, because that’s the only way in which we’re going to be able to see that what we’re doing to others, we shouldn’t be doing to ourselves. I found it lousy what a lot of other human rights organizations were doing.

And I also think that what I would have wanted to see in the advocacy… It should have been not all about whether it applies to Americans or not. It should have been, this should apply to nobody. What’s outrageous about this NDAA statute is it should not apply to anybody. Americans are a side issue. And of course Obama’s statement, that he made, that it doesn’t comport with our values as Americans, to detain Americans indefinitely, is really crazy! That’s saying our American values are values we don’t think other people have. You can’t be more explicitly outrageous.

The strategic argument that underlies your question — and I’ve never been one for the strategic argument. And the center has very little presence in Washington for that reason. We actually will go to the meetings, we’ll yell and scream and jump around. But essentially we don’t do lobbying. Because what happens to people who live in Washington too long, is everything becomes strategic, and they all think that everything happens inside the Beltway, and you have to convince the Congress of this and that, and we don’t believe that at all. We believe you stand on principle and that’s what you do, you don’t make compromises like that.

AS: I think something else that really frustrated me was the way the federal court system was described. I think it was the ACLU that issued a press release saying, with regards to the federal courts, “If it ain’t broken, why fix it”. In the context of the NDAA — why automatically try non-citizen terrorist suspects in military commissions. Or even in the broader sense, of closing Guantanamo Bay or using military courts of military commissions. Because from my perspective, the federal courts aren’t working for Muslims in America, the system is broken.

MR: This question that you’re asking, strategically, is a big debate, a big discussion. Because what people say is, don’t try people before these junk military commissions, try them in courts that really have lots of due process, that really work, try them in the federal system. And again, that is a strategically bad argument. And they use the argument, “Well, we’ve convicted 415 people, or whatever the number is, in the federal courts, and see, they they work”. Well yeah, they work essentially to convict everybody they put in front of them, because people are so Islamophobic in the United States they’re not going to acquit any single Muslim that sits in front of a jury! They’re just not going to acquit them. So it is a bad argument.

On the other hand, you do have to say that military commissions are just these rump trials that don’t have whatever the window dressing is that federal trials have, to give people more fair trials. But that’s not saying that Muslims get fair trials in the United States. On the other hand, and this is an interesting point, we have counsel who represent Guantanamo detainees, who prefer being in front of a military commission. They’re all guilty pleas, basically, and they believe that they can actually get a better guilty plea out of a military commission than they can out of a federal court. So even within our Guantanamo Bar, there’s the human rights organizations, who don’t represent clients, will be saying, the abstract. Get rid of military commissions, try everybody in federal court. For people who represent clients, on a very individual basis, some will say, I’d rather be in Guantanamo, in front of a military commission… The answer is how do you fix your system in the United States. How do you fix the federal court system… I don’t know the answer.

AS: In the past year we’ve seen the conviction and sentencing of several cases involving informants and agent provocateurs, most notably the Newburgh Four. We can see from cases like Fazaqa v. FBI, just how widespread and commonplace it is for informants to gather information on Americans purely on the basis of their religious practices. Of course, the CCR’s own history is embedded in the Southern civil rights movement, and the civil rights movement itself was profoundly affected by FBI infiltration during COINTELPRO. Firstly, how do you think Muslim communities — and the people who stand in solidarity with them —can best resist and fight back against informants and agent provocateurs? I was hoping you could speak to the impact this government strategy is having on Muslim communities, both on their cohesion, and of course, also their ability to organize and defend their rights?

MR: Part of the issue is of course, in the beginning, after 9/11, Muslim communities were terrified. If you stepped out of your house, you’d be stopped by an FBI agent. Community members were very frightened, going out, both because of FBI, as well as the way in which the media and others, turned on those communities. There were instances of people being killed, there were instances of people being punched who were Muslim… that was a big problem. And there are still people in the Muslim community, that they should always talk to the FBI, that they’ll be better off like that. And of course it’s an individual case. I think the best thing is for there to be Muslims who work in the community, and there are, there’s a really great group in New York called DRUM [http://www.drumnyc.org/]. And they advise people of their rights, they have meetings, they talk to them about that, and build solidarity around both their community as well as around individual cases that come up. And of course it’s hard, because Muslims don’t necessarily want to be associated with the more radical factions of Muslim groups. But by doing that, they’re cutting off part of their own community. It’s really a divide and conquer tactic of the FBI. So I think there has to be tremendous solidarity, especially around these informant cases and these entrapment cases. I mean the idea that they send informants into mosques… who then start talking to young Muslims, really boys, and they hear some rhetoric no different than my own probably, about what the US is doing in Afghanistan or Palestine, and they begin to push those people along, well, why don’t you do something about it, why don’t you do this or this. And of course they don’t record those conversations, and so we never know what really happened. Those are cases when the Muslim community ought to be screaming, about having FBI in the mosques. In the old days this would have been completely unacceptable, to put people in religious institutions.

AS: You mentioned the divide and conquer strategy that the FBI is using. I don’t know whether you wanted to speak more broadly about the impact that informants are having on Muslim communities.

MR: I know that it’s obviously scary, because you don’t know who you’re talking to, because they send in people that are just like people in the community, to be informants. And when I give a speech, here or somewhere else, I’m not a Muslim. So I can say, I can actually ask the question of, “Why was the world trade center attacked?” Was it because the Muslims — “they” — hate our freedoms? Or maybe we want to look at what our policies are in Saudi Arabia, in Israel, or in other places? I can say that. You’re a Muslim and you say that, first you’re going to be a target almost immediately by the FBI, and even within the Muslim community, people are going to say, “You’re going to bring authorities down on us”. So it’s a difficult problem. But I do think that people ought to have a full right to be able to express those views without the FBI and CIA getting involved.

AS: One thing I keep wondering about is why American intelligence agencies and the police are so keen to use informants and agent provocateurs. Especially looking at cases like the Newburgh Four or the Miami Seven, cases that involve poor men of color — men that, even according to judges involved in the case, would never have committed a crime if the informant hadn’t been involved. It seems difficult for me to believe that FBI agents actually believe they’re identifying individuals that threaten our national security, when actually the use of informants has caused so much tension within the Muslim community about whether to trust or engage with law enforcement. Do you have any insight onto how the FBI justifies their practices to themselves?

MR: The theory that they put forward, which I think it not very valid, is that they’re now going to try and find people who are disposed to commit crimes, and prevent those crimes from happening. Now that’s a completely illegal theory in my view. We don’t have — what’s that movie about pre-crime [Minority Report] — we don’t have that idea in the United States, that people are somehow dangerous and then you can entrap them and move them, and get them arrested, and take them off the streets. But it does seem underlying it, is the theory that radical Muslims, or Muslims with ideas that are antithetical to the government in the United States, are disposable, and therefore what’s the difference if these 50 young men between 18 and 23 are in jail or not, they don’t care. That’s my guess, because they’re saying, “We don’t’ care”. What they’re really saying is, “We’d rather put 100 people in jail, most of whom would never commit a crime in their life, if we have one of them who might commit a crime”. And I think that’s the theory, I think there’s a wide net in which they’re netting and putting all those people in jail, on the theory that one of them may one day commit a crime. And it’s obviously an illegal and unconstitutional theory, let’s say you know that out of a population in prison, of the people that you let out, 5% are going to go back to be recidivists, it doesn’t mean you don’t let anyone out of prison. It’s crazy!

AS: And two, it’s important to look at the tension that informants and agent provocateurs have caused in the Muslim community, about whether even to engage with law enforcement. From their perspective, there seems to be less and less rationale to engage with law enforcement, and to me that’s another reason why it seems so counter-productive.

MR: It does seem counter-productive, it does. And that’s always the argument, why should we cooperate with you guys, when you guys are just in here trying to infiltrate our community and arrest our young people. What you also find is, the estimates that you look at — the article in Mother Jones — there’s, 15,000 paid FBI informants, and six times that number that are unpaid, that’s 100,000. And the majority of those are in the Muslim community. I think there’s about 4 million Muslims. You know, we have cases where they’ll go to somebody who makes a phone call to his mother in Pakistan or something. And they go to that person, and they say. “You have a job, you can either talk to us or we’ll go tell them something”… people inform through fear.

AS: Something else that really interested me — when I spoke to the women involved in the CAIR case, I actually read through a lot of the lawsuit that they submitted. This is just a personal interest of mine. And to hear about the Orientalist tropes that the FBI uses… sort of telling the informant it was okay to have sexual liaisons with the women he was introduced to, and using the tapes of these sexual liaisons to pressure women to inform. Or having the informant pick out the potentially gay members of the mosque and threatening to rat him out [to get him to become an informant]…. I’m not sure if you have any thoughts on that.

MR: Well, it’s all outrageous. The FBI should have no business going into the mosques to start with. And then to start using, essentially, blackmail, to get people to be informants, it’s all stuff that we would have been, in the ’60s and ’70s, they would have been called in front of Congress for hearings for that kind of stuff. And it just shows how far we’ve gotten away from, what was a fundamental understanding of the role of the FBI as well as the role of civil rights. That people can do this and there’s basically no outcry. And it’s all about Muslims and fear, that’s what it is.

AS: I think the past year has pointed towards some new trends in civil liberties with respect to the War on Terror, on both sides of the ocean. As already discussed, the use of informants in Muslim communities in the States-has become widespread, and just a few weeks ago there was the first case of a conviction the UK where an informant was used. Similarly, just last month we saw the conviction of Tarek Mehanna, for engaging in practices that are arguably protected by the freedom of speech. And here in the UK, Ahmad Faraz was convicted under several statues for distributing books, including Syed Qutb’s Milestones. Not to mention the burqa bans that have been instituted in France and elsewhere. It all seems to point to the criminalization of being Muslim in itself. I’m wondering, as someone with an anti-racist background, as a white person, how can we engage with that?… How do you oppose something that seems so rooted in the way we think now?

MR: When we look at the anti-slavery moment, or the Jim Crow movement, the Constitution says you have to remove any of the badges of slavery. And all of these issues that we’re raising — the burqa, the Koran, thought crimes — those to me, seem to be badges of racism and discrimination and Islamophobia. So you just have to fight every single one of them. And it’s really important to put them together, and say, look at how this works. It works on this on the level of bums, it works all the way up through informants, it works by having FBI in mosques, and it works in Guantanamo. It’s really all one package, and I don’t know how many people have really put it all together on that level, but each one is really a badge of Islamophobia. We’re still able to fight it with litigation in the United States. Whether you’d be successful starting that fight against Islamphobia in the United States now, I don’t know. Each of these informant cases, and there have been a vast number, have been fought, but we’ve won very few of those. And even when we get acquitted in one, they try and find another way [to convict].

AS: I have a personal interested in some of the controversies that have sprung up around the War on Terror. I know that the CCR had some splits on its board in the past year or so about whether to oppose the assassination of Anwar al-Awlaki, and similarly Cageprisoners has come under fire from some similar players in the human rights world. In some ways these controversies relate to an age-old question that progressive activists have dealt with — how do we stand next to and defend the rights of people we might entirely disagree with, or even people who might not defend our human rights in return? I’m wondering how you’ve thought about this as an activist in your own life.

MR: The centre’s thought about it a fair amount, particularly after what happened with Karima. Karima was really the only one on our board, and she’s no longer on our board. And it was a surprise to us. It would be wrong to say that we had a split on this issue on defending al-Awlaki. That was a case we wanted to do. Because it was a case, we knew in the United States, would have some controversy about it, we brought it to the board. And that’s when Karima then did her thing, and wrote an article, and Victoria and Asim responded in The Guardian… In my career, what’s interesting, the centre generally wanted to take cases of people we agreed with. But it didn’t mean we always agreed with their personal politics. We represented everybody at the Attica prison uprising, but that doesn’t mean that each person was the ideal person who was going to be just like my politics or my world.

When we started with the Guantanamo cases, of course, it was a much… deeper question. Because we didn’t know who we’d be representing. And we’re not normal criminal defence lawyers or death penalty lawyers who represent anyone who walks in to the office, we believe in social causes, in defending social causes. But what we saw with Guantanamo, we were told that these people were the worst of the worst and all of that… But our belief was that it was such a fundamental attack on really the core human rights in the world, what they were going to do to the Guantanamo people, and what they were doing really to Muslims… By the time we got to the order on November 2001, that was going to set up Guantanamo, we already had these huge roundups of non-citizens in the United States… Then we had the whole thing where all the Muslim men from 15 countries had to be fingerprinted… so we’re talking about a context in which there was a direct attack on a community, and we couldn’t sit there, even if some people said, well, we don’t agree with their politics. But the overarching thing was our belief that fundamental democratic rights, essentially, if you’re going to be thrown into a prison, you have to have a trial, it was just an overriding force. And that people were held in incommunicado. Guantanamo was being held incommunicado, we didn’t know our clients, we weren’t even aware of torture, we didn’t suspect the kind of torture that we eventually found.

So on Anwar al-Awlaki, I have no issue with that case, most of us didn’t. The President can’t simply order the death by drone, targeted assassination of whomever they want to kill, anywhere in the world… It was outlandish. And the fact that there’s this much discussion… the Muslim community is not one community, it’s just like any other religion, it has people here, it has people there. And just because there’s this discussion, we don’t agree with this, or we agree with that… why would we get into that? Our object is not to decide who’s a good Muslim or who’s a bad Muslim. Our goal is to say the United States is doing this to a population, and we have to stop it. We focus on what the United States is doing.

AS: Finally, can you give us any hints on what projects the CCR might be working on in the coming year, with respect to the War on Terror?

MR: We still have the broad goal of rolling back the national security state that’s been imposed since 9/11. The first goal is obviously to get our clients out of Guantanamo. We have some we directly represent, and then we have the scores of people who we are co-counsel with. And we just hired another lawyer to help us with that. So that is still a very strong team. The War on Terror is still a critical issue at the CCR.