Staying Civil After 9/11 – New York Super Lawyers – by Jessica Centers – PDF

2008 Staying Civil After 9/11

When the order came down in November 2001 giving the U.S. military the power to pick up and detain suspected terrorists anywhere in the world, Michael Ratner, president of the Center for Constitutional Rights (CCR), quickly decided he wanted his organiza­tion to represent the first detainees. Convincing the rest of the organization’s leadership, how­ever, was a tough sell.

The Center was born in 1966 out of the Civil Rights movement. Ratner arrived in 1971, not so much to protect legal principles such as free speech, but to defend the people he agreed with and the movements he believed in. After 9/11, however, people labeled “the worst of the worst” by the federal government were being denied the most basic rights guaranteed by the US. Constitution. “The principle that was being ripped away from people was so fundamental that we had to say, even if they might be the worst of the worst, we had to take those cases on because we didn’t believe you could take those people and pick them up and detain them forever and deny habeas corpus,” Ratner says. “That was just too big a leap from anything we had seen in this country before.”

First there was debate in the office. People were worried about hate mail and funding and whether they wanted to represent the people responsible for 9/ II, if that’s who these detain­ees were. But the organization ultimately sided with Ratner. During the next six years, so did hundreds of lawyers from different practice areas, who stepped up to represent the detainees at Guantanamo. “It’s not that we’ve moved to

the center—the values we’re defending are centrist fundamental values—but it’s because parts of the government have gone so far in denying rights that we feel were embedded in our Constitution and law, that we pulled a huge sector of the lawyer population to help us defend those rights,” Ratner says.

In the wake of 9/11, the practice of human rights law has changed, starting with the CCR and the first Guantanamo cases but hardly ending there. New York’s most important civil rights lawyers and organizations—including Arthur Eisenberg of the New York Civil Liberties Union and Manuel Vargas at the state’s Immigrant Defense Project—have had to step back from more progressive agendas and defend the core principles of our society.


Even after taking the Guantanamo cases, the Center still faced a major obstacle.: Detainee names were secret, and those prisoners were cut off from any communication with the outside world. But in December 2001, the name of David Hicks, an Australian, appeared in the press. The Center’s resulting habeas action, filed in February 2002 on behalf of Hicks and a few Englishmen, would be the first Guantanamo case and still its most signifi­cant. With Ratner as one of the lead attorneys, Rand u Bush went to the US. Supreme Court, which ruled, in June 2004, that the detainees had a tight to habeas corpus.

“We immediately went back to Washington, D.C., federal court and got the right to start seeing our clients,” Ratner says. The Center began building a list of names—clients would let them know who else was being held—and recruiting lawyers to represent them. Initially, in 2002, no human rights orga­nization was willing to work with the Center. By 2004, they were recruiting hundreds of lawyers out of commercial practices, most of whom had no criminal law experience.

Seeing clients was still a challenge. Lawyers had to wait for security clear­ances, and guards would try to sow discord—telling prisoners, for example, that their lawyers were working for the government. Worse, Congress responded to Rand with the Detainee Treatment Act, which attempted to strip habeas from the people at Guantanamo. “Because many would argue Rasul was won on a statutory basis, not a constitutional basis, Congress said, ‘OK, we’ll just change the statute.'” Hamden v. Rumsfeld, which the Center was not involved in, challenged that statute before the U.S. Supreme Court in 2006 and won.

Congress, undeterred, responded with the Military Commissions Act, which set up an alternative procedure outside US courts in which detainees would be tried. They also tried to ban habeas again.

Meanwhile, 11 habeas petitions the Center filed on behalf of more than 70 detainees were consolidated into two cases—Al Odah v. United States and Boumediene a Bush—which worked their way up to the highest court. Ratner was no longer lead counsel on those cases, but, behind the scenes, he was leading the Center’s larger Guantanamo litigation strategy. In December 2007, both cases were argued before the Supreme Court, and in June 2008, in a 5-4 decision, the court ruled that the provision of the Military Commissions Act that denied habeas corpus was unconstitutional.” The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” wrote Justice Anthony M. Kennedy.

Six years after Ratner filed the first habeas petition on behalf of a Guantanamo detainee the 270 remaining prisoners may finally see their day in court.

Habeas corpus wasn’t the only issue to come out of Ratner’s Guantanamo cases. In 1980, the Center handled a Supreme Court case that found torture illegal and the torturer culpable. “We sued dictators from all over the world who came into the United States,” Ratner says. “And then you get to 9/11.

“At first, when our clients were at Guantanamo, I was a little naïve,” Ratner says. “I didn’t really take in that they might be tortured or abused.” Before Rasul was decided, for example, the government released the English prisoners and in February 2004 Ratner flew to London to interview them. When his clients told him they’d been tortured, he was skeptical. “[Then] I come back and all of a sudden you have Abu Ghraib photos and the [former Secretary of Defense Donald] Rumsfeld technique,” he recalls, “and you realize that what my clients were telling me was exactly what the Rumsfeld techniques authorized: chaining to the floor, stripped of clothing, sexual humiliation, dogs. … So then you realize this is a massive torture program going on. Even though the US is trying to say it’s a few bad apples, in fact, it goes right to the top. And that gets confirmed day by day even more than ever thought.”

At the same time that the Center was attempting to communicate with its alleged terrorist clients and their families, the government had been using a secret program to spy on American citizens who were believed to be in contact with alleged terrorists. Ratner became aware of the NSA war­rantless wiretap program with the rest of the country when The New York Times exposed it in late 2005. It was particularly poignant for him. The first Supreme Court case he ever worked on was a brief that led to the 1972 find­ing, in United States v. U.S. District Court, that Richard Nixon couldn’t warrantlessly wiretap Americans.

The Center responded by suing the government in 2006 on its own behalf. That case is now pending—along with the cases of dozens of groups who did the same thing, including the American Civil Liberties Union.