PAUL JAY, SENIOR EDITOR: For 600 of the individuals held at Guantanamo Bay have been denied the right to a trial, the right of habeas corpus. A landmark case will come before the U.S. Supreme Court on December 5 to determine if this is constitutional. Joining us is Michael Ratner, the president for the Center for Constitutional Rights, one of the organizations involved in this watershed case. Michael, what is the significance of the case coming up at the Supreme Court on Guantanamo?
MICHAEL RATNER, PRESIDENT, CENTER FOR CONSTITUTIONAL RIGHTS: Well, on December 5 in the Supreme Court, there’s an argument that’s going to happen regarding the Guantanamo detainees. And the question the court is going to look at is whether those detainees have the right to go into a court and challenge their detention, or in other words force the United States to say [to] the Bush administration, “Why are you holding me?” and give them legal reasons why they’re being held. And what’s interesting about this case is it’s been now six years for some of those Guantanamo detainees at that military base located in Cuba, and they have never actually, any of them, had a day in court. And this is the third effort that we at the Center for Constitutional Rights have made, as well as other lawyers, to get them rights to go into a court. And the Supreme Court twice has said they have the right to go into court; twice the United States Congress has said that you can’t do it, and they overrode the Supreme Court’s decision. And now we’re getting to the heart of the entire matter. And the heart is, does the United States Constitution protect what we lawyers call the writ of habeas corpus, the right to go to court and test your detention, for people located at Guantanamo Bay, Cuba, non-citizens? If it does, if the Supreme Court says you can go to court, then the U.S. will be forced to justify those six year old detentions.
JAY: When was the last time Congress overrode the Supreme Court.
RATNER: The last piece of legislation was called the Military Commission Act. It was signed by President Bush October, 2006. It said no habeas corpus for Guantanamo detainees. And now the test is whether our constitution says you can’t deny habeas corpus. Now, habeas corpus, to a lot of people it’s just some Latin words, but it’s really the fundamental right that protects against the police state, because without habeas corpus, tomorrow the government could come by, pick me up by the scruff of the neck, toss me into prison, and I would never get into a court where the government would have to justify why I’m detained. It goes back English Habeas Corpus Act of 1689. It became part of the U.S. Constitution. It’s the fundamental human rights protection in law. If the Guantanamo detainees don’t have it, we have made a serious bend in the road away from really fundamental liberties.
JAY: How might this affect ordinary Americans if this is really just for something outside the U.S.?
RATNER: Well, it’s interesting, Paul. Initially, they tried, actually, to apply this to U.S. citizens in the United States. And the famous case was the Jose Padillo case, the so-called Dirty Bomber picked up at an airport in Chicago. They held him in a prison without the writ of habeas corpus and without any lawyers for a period of time. Eventually, as that case moved toward the Supreme Court, they abandoned that struggle and gave him a lawyer and habeas corpus. So this can affect the people in the United States and U.S. citizens, but it’s really now conceded that U.S. citizens, really, almost anywhere in the world, have a right to habeas. But there is a big fear in the United States: if you can, on the idea that you’re fighting a so-called war on terror, take away people’s rights to go into a court even if they’re non-citizens, why can’t you next take it away from citizens?
JAY: The last time Congress overrode the Supreme Court, there were a lot of Democrats in that Congress. What does one expect from a Democratically controlled Congress now?
RATNER: We have attempted to restore the right of habeas since that Congress has taken power and to override the provisions of the Military Commission Act that stripped it away. We’ve been unable to get the Democrats really to summon the courage to do it, sadly. A number have moved in that direction, we’ve gotten some votes, but really not with the kind of guts it would take to override the prior legislation. The Democrats have not been willing to take on seriously President Bush’s paradigm of the so-called war on terror. They don’t want to be called weak on terrorism; they don’t want to be called weak on national security. And so, sadly, we’re really looking at the Supreme Court now. This court is a very conservative court. The last time we won this case we had five justices or six justicesone of them, five, and another. We’re down to four that we can rely on and, hopefully, one that will swing in our direction. So we’re talking, really, about avoiding what I consider the most serious bend in the road toward a police state by essentially one vote on the Supreme Court.
JAY: What do you say to people that think, on the question of habeas corpus, that sometimes you just need to put somebody and contain them, and that in theory due process may put people on the streets who could then do damage? You know, there needs to be a compromise on habeas corpus to have security. What do you say to them?
RATNER: A compromise on habeas corpus basically means that you’re going to be sending hundreds of innocent people to prison as we have at Guantanamo. What we’re saying here, the minimum that’s required is that the person gets in front of a magistrate, in front of a court, and the government has to say, “Here’s our reason for holding these people.” One of the reasons habeas corpus is so important is: it allows the person to get into court and get a lawyer. And one reason the Bush administration has carried out secret detentions, whether at Guantanamo or Bagram or in other sites, is because secret detentions pretty automatically lead to torture. So if you want to try and stop torture, you have to stop secret detentions, because that’s really the purpose. So habeas, it’s not just a way of getting into court, but it’s a way of ensuring humane treatment, it’s a way of ensuring that a lawyer can talk to the person and the person can say, you know, “They’re torturing me.”