Michael Ratner: Obama continues model of Presidential fiat, Congressional fiat, no due process, no trials, and indefinite detention.
MICHAEL RATNER, PRESIDENT EMERITUS, CENTER FOR CONSTITUTIONAL RIGHTS: It’s always good to be with you. And happy new year to you and all your viewers.
JAY: Thank you. And what are you following now?
RATNER: You know, it’s unfortunately, it’s more of the same, which is the war-on-terror excesses, first of the Bush administration, and now the Obama administration. We’re going into, really, the middle of the 11thÂ year of what I consider to be a lawless way of carrying out the so-called war on terror. The model that has been used is essentially presidential fiat, congressional fiat, no due process, no trials, indefinite detention.
And just this week the president signed and it’s into law the National Defense Authorization Act, which comes up every year. It’s a 620-page bill. It funds all our military adventures all over the world. But for my purposes, on the so-called war on terror what it does is continue what I call the BushâObama policies.
The first of those policies is indefinite detention, that you can pick up people anywhere in the worldâand what’s interesting: including American citizensâand hold them indefinitely without trial, and even hold them offshore. We expected this last Congress to try and put in legislation that would at least prohibit the holding of U.S. citizens. They didn’t, so it’s still authorized by the law. And, of course, that’s the lawsuit that Chris Hedges and Daniel Ellsberg had gone to court to try and declare that section of the old law, now of the new law, unconstitutional.
So you have an NDAA that first allows indefinite detention of anyone in the world, including U.S. citizens. Secondly, it really destroys any chance of closing Guantanamo.
JAY: Before you get into that, Michael, wasn’t there some amendment that came out of the Senate that ensures or at least is supposed to ensure habeas rights for U.S. citizens?
RATNER: Well, they have a habeas right, but they can still be held indefinitely in detention.
JAY: So explain what that means, a habeas right.
RATNER: Okay. Everyone can now, because of the cases we won at the Center over the last ten years, has a right to go to court and say to the court, which will say to the jailor, the United States, are you holding me legally. The problem with it is is legally is now defined by the NDAA as holding someone in indefinite detention for their, quote, associational interests, or association with al-Qaeda or related forces. And so all that the government has to come into court and prove is that somehow this person has some relationship to al-Qaeda or whatever related forces means, which could be almost anything. And that’s the way it’s been used. So the U.S. picks up people, whether it’s in Afghanistan or Pakistan, or Yemen,â
JAY: Or Pittsburgh.
RATNER: Pittsburgh, or Somalia, or anywhere, or England, or anywhere, and says, well, that person’s associated with al-Qaeda or associated forces. And then you have a right, yes, to go to court and challenge that.
But the court has been completely unwilling to hear those challenges. The lowest court has heard them, and in some cases even said, well, the government’s not holding with a good reason; it goes to the court of appeals, and they have never actually let anyone out of Guantanamo or any other type of this indefinite detention.
My problem, of course, is not that they give habeas rights. Sure, that’s good. But the problem is they use a indefinite detention model and not a law enforcement model. My view is no one should be held in indefinite detention. Every human being who’s picked up anywhere in the world should be charged with a crime if they’re going to be kept, and tried for the crime. Instead, you have these masses of people being held without being charged. And if we look at Guantanamo, it’s the perfect example.
And that gets to the second part of the NDAA legislation. There’s 166 people left in Guantanamo. Eighty-six of those people have been cleared for release. That means they shouldn’t be there at all. The rest of themâwhatever, 80 or soâhave not been charged, with exceptions of a few, such as the so-called, you know, people who were allegedly involved in the conspiracy of the World Trade Center, which is a half a dozen people or so. So most of those people have never been charged. And, in fact, more than half have been cleared for release.
So what does the NDAA do to those people? It says two things, which it said consistently year after year, that the president can’t transfer anybody to the United States, even those cleared for release. So that means: how do you get those people out of Guantanamo? And secondly, it puts very heavy restrictions on transferring any of those people to foreign countries. They have to notify the Senate, they have to approve it in certain ways. And, in fact, because of those restrictions, no one’s been transferred to a foreign country, or to the United States, obviously, in the last two years.
Now, so that’s what you have. You have heavy restrictions. So that means you’re going to have trouble closing Guantanamo altogether. Now, Obama made all kinds of noises last year, and he made all kinds of noises this year, that he was going to veto the NDAA because of what he considers these restrictions on his presidential power to, one, transfer people out of Guantanamo to the United States, or transfer them to foreign countries. But last year he didn’t veto it, and this year he didn’t veto it. So what he does is he does a bunch of saber-rattling. But what he did was do a signing statement.
Now, signing statements, I want to explain, have no legal efficacy. In the United States, you either have to approve legislation as the president or veto it. Obama, by approving it, basically says this is the law. He then signs something that says, well, I don’t like this law, I don’t think it’s constitutional, I don’t think this, I don’t think that, but that it has no legal efficacy. The law is the law, and he’s not about to necessarily disobey the lawâhe didn’t last year, and he didn’t this year.
Now, what’s interesting about Obama’s signing statements is two things. One, he criticized them when Bush used them, saying, Bush shouldn’t be doing these signing statements; he should either veto the law or approve the law, but not say, I approve it, butâyou can’t do that. And secondly, last year when he made a signing statement on the NDAA, he said, I will challenge this law as unconstitutional in these respects, etc., etc. This time, because it’s past the election, he didn’t even say that. And so we now have an NDAA that ostensibly allows the indefinite detention of American citizens, makes it impossible to close Guantanamo, and a president who is unwilling to challenge Congress about the law.
JAY: And what’s the status of that lawsuit that Chris Hedges and his colleagues launched?
RATNER: Well, Judge Forrest, who is a very good judge in the District of Columbia, actually ruled in favor of Hedges and Ellsberg that the law was unconstitutional because Ellsberg, Hedges, and others who challenge the law could actually be held in indefinite detention for the words that they spoke or what they wrote. And the government refused to say initially that they couldn’t be held like that. And so Judge Forrest, who is the judge, said, well, I’m ruling it’s unconstitutional.
The government then, in the most aggressive way they could, Obama appealed that to the circuit court. The circuit court stayed the decision, which means they said, we’re not going to hold this unconstitutional; we’re going to stay it until we hear the entire argument again. So right now the NDAA is still good law, because the circuit court went against the district court, the lower court, and basically said, we’re going to allow the law to continue. So it’s still being heavily, heavily litigated.
Now, it seems to me that two things are apparent to me. One is, of course, I don’t think it’s good to hold anyone in indefinite detention, citizens or not. Of course, Hedges attacked the most pernicious aspect and the most constitutionally protected aspect, which is holding an American citizen. And secondly, we’re still left with Guantanamo. Now, it brings me to so we have an NDAA out there.
Now, it brings me to a second issue that I want to get to in this short piece, which is Obama’s drone policy. Again, it comes up in the context of the murder of, killing of American citizens Anwar al-Aulaqi, his son, Rahman al-Aulaqi, and another American citizen, all in Yemen. The Center for Constitutional Rights challenged those killings initially. We lost. They were killed by drones after our lawsuit.
We now have another challenge, challenging them in terms of trying to get damages for them. But an extraordinary decision was written this week by a judge about targeted assassinations by Obama and his administration. It was a case in which the ACLU and The New York Times went to court to try and get the legal basis under which Obama said he could designate people for death, American citizens and otherwise. And the judge said that they weren’t entitled, in the end, to the document that was written by the Department of Justice laying out the legal reasoning about why you could kill American citizens or others utterly outside a war zone, whether in Yemen or in Somalia or in the United Kingdom or here in the United States. The judge said because it was classified, while the judge didn’t like giving the decision she did, she’d said, I can’t do anything about it, my hands are tied, I’m in a catch-22. And what she said about it was extraordinary. She said, look it, when we had torture in the United States, it was critical to get out the memos regarding the legal reasoning about why the U.S. could torture people, so that it could be fully, fully debated. Here my hands are tied.
And what we should have is, like torture, we should get out the legal memos about why the president should be able to assassinate people outside a war zone so we can have a serious debate about it.
JAY: Well, does the president have to show these memos to anybody?
RATNER: Not really, no.
JAY: There’s no congressional oversight? Not given the history of whatever oversight there’s been would mean that much, but is there? I mean, I don’t understand. The president could create any memo he wants ?
RATNER: Well, the Justice Department creates the memo, they give it to the president. He could technically withhold it from Congress. I don’t know whether Congress has asked him for it or whether he has withheld it, or whether Congress is entitled to find out much about the policy, because while the Congress is entitled to find out about, particularly, CIA covert operations, whether this falls within that is hard to say. And secondly, this isn’t only done by the CIA, but targeted assassination is done by Joint Special Operation Command, or JSOC, the military. Congress has no ability to really or no law that requires the president to report to Congress on the murders or assassinations by JSOC.
So you have this policy of the president on his own deciding who can be murdered or assassinated, even if they’re American citizens. And what was incredible about the judges’ decision, the judge said or implied that the president could actually be criminally prosecuted for killing of a U.S. citizen overseas and said the president is not exempt from the law that prohibits people or citizens in the United States or people anywhere in the world from killing U.S. citizens overseas. So she made an implication that it may be that the president could actually be prosecuted for these targeted assassinations around the world. So while she denied, ultimately, the memo, it’s just this opinion, which is some 75 pages long, just drips with anger and really, I think, what you would have to say is deep unease at the president saying on his own, without providing the American people with a legal basis, for assassinating American citizens anywhere in the world.
Taken together, what you have here, you have the NDAA law which allows the indefinite detention of American citizens, you have the al-Aluaqi decisions, and this recent one which allows the targeted assassination of American citizens, both detention and killing, at the behest of one man. And what the judge says: this is supposed to beâsupposed to be a democracy, a constitutional democracy based on the rule of law and not on the rule of men. And I guess she’s questioning whether that’s what we have any longer.
JAY: Thanks for joining us, Michael.
RATNER: Thanks for having me, Paul.
JAY: And thank you for joining us on The Real News Network.