Taking the Risks – National Law Journal – by Marcia Coyle – PDF

2004 Taking the Risks

In its nearly four decades of existence, the Center for Constitutional Rights has never represented clients whose politics it did not share in one way or another.

Never, that is, until Guantanamo Bay in the post-9/11 era.

In roughly two months, the U.S. Supreme Court will hear arguments in two joined cases, one brought by the center and the other by New York’s Shearman & Sterling, involving the government’s indefinite detention at the Guantanamo Bay Naval Base in Cuba of foreign nationals captured in connection with the U.S. war in Afghanistan and on terrorism. Rasul v. Bush, No. 03-334, and Al Odah v. Bush, No. 03-343.

Representing the detainees marks a clear break with the center’s traditional representation of groups and individuals involved in progressive movements for social change. Although time, law and politics distinguish the detainees from the Chicago 7 and other famous, or infamous, clients of the center, there are two critical links.

First, until the Supreme Court agreed to take the detainees’ challenge, many legal experts and scholars viewed it as unwinnable.

“The center’s role is to take risks, legal and political risks, that other institutions and people are unwilling to take,” said Michael Ratner, president of the center, more popularly known as CCR. “The Guantanamo Bay case was high risk.”

Second, the detention case involved a policy that, if left unchecked, in the view of Ratner and his colleagues, could undermine the core mission and traditional work of CCR itself.

“Our case speaks to the unrestrained and arbitrary exercise of power by the government,” said CCR’s legal director, Jeffrey Fogel. “There was a clear recognition early on that this was so serious that the floodgates had to be held back and we could then return to our original mission.”

Today, CCR, with a staff of seven full-time lawyers, is at the forefront of challenges to the government’s post-9/11 detention policies. It is providing direct representation in four cases, is assisting in others and is shifting much of its resources to those efforts.

In the high court, CCR and Shearman & Sterling have drawn substantial amicus support from a broad range of individuals and groups across the political spectrum, inside and outside of government and the military.

They argue that U.S. courts do have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad and held at Guantanamo Bay.

Although the government and its supporters have not yet filed their final briefs, the detainees’ amicus support indicates a split among conservative groups who usually would be on the government’s side.

And that split, scholars and others say, suggests that CCR-sometimes labeled “radical” in its litigation positions-is far from the fringe and well into the mainstream in this court and in these cases.

Taking chances

Immediately after the 9/11 attacks, it was far from a sure bet that CCR would be involved in any related litigation. Its offices are in downtown New York and its staff, like most New Yorkers, was badly shaken by the World Trade Center attacks.

But after responding to calls for help from Muslim families looking for relatives caught up in the first wave of immigration roundups conducted by the government shortly after the attacks, CCR was soon immersed in what would be its first detention case.

In Turkmen v. Ashcroft, No. 02 CV 2307 (3G) (E.D.N.Y.), CCR sued over the imprisonment and harsh treatment of aliens jailed after the 9/11 attacks.

“The theory was once you pick up a person for deportation and that person says he wants to voluntarily depart, you don’t have the right to hold the person indefinitely,” said Ratner, noting that the case is pending in federal district court.

About the same time, the USA Patriot Act was moving through Congress. CCR joined with 120 liberal and conservative organizations to oppose it–unsuccessfully. CCR also joined with the American Civil Liberties Union and others to challenge post-9/11 closed immigration hearings and to sue the Justice Department for the names of immigrants rounded up after the attacks.

But Ratner calls Nov. 13, 2001, the “watershed” date for CCR. President Bush signed the military order establishing detention (at Guantanamo Bay), military tribunals (“The kind of courts we condemn in Peru,” charged Ratner) and the death penalty for al-Qaeda members and other terrorists.

CCR began discussing a challenge to the order with the NAACP Legal Defense and Educational Fund, veteran death penalty and civil rights litigator Joseph Margulies of Minneapolis’ Margulies & Richman (Margulies would later be lead counsel in the Guantanamo Bay case) and others.

However, those talks took another direction after a phone call from Australian lawyer Steve Kenny, who was representing the family of David Hicks, a detainee at Guantanamo Bay.

“Word was out that the center wanted to challenge the military order,” said Ratner. “Kenny asked us if we would be interested in working on this as a habeas challenge. We were.”

There were some concerns within CCR about representing Hicks and other detainees.

“If you look at the center’s history and my history, we represented people we agreed with,” said Ratner. “It wasn’t like the center came out of a criminal law tradition. It was a pretty big break for us. It was a very unpopular case.”

Breaking tradition

CCR actually comes out of a civil rights tradition. It was founded in 1966 by Morton Stavis, Arthur Kinoy, Ben Smith and William Kunstler, who had represented civil rights activists in Mississippi and who envisioned a legal organization that would bring “impact” litigation on behalf of social justice movements.

Because of its ties to progressive political movements of the times, said former CCR attorney David Cole of Georgetown University Law Center, its priorities shift with the priorities of those movements.

“It’s not like the ACLU, which always has been doing certain kinds of cases,” explained Cole, who still assists CCR. “When CCR was founded, it was the civil rights era. In the ’70s, it was very active on women’s rights issues. In the early ’80s, it was a lot of anti-intervention in Central America.”

There have been some constants in CCR’s work: human rights litigation in U.S. courts and defense of political dissidents.

“Many of the cases CCR has done were cases where likelihood of success in the courts was slim,” said Cole, who joined CCR as a new lawyer in the early 1980s when everyone–lawyers and support staff–was paid the same and decisions were made by consensus of the entire group.

“It understood these cases had to be part of a broader struggle,” Cole said. “You couldn’t expect courts to end intervention in Central America, but lawsuits could raise serious issues about the legality of what we were doing there, and if that became a focal point of organizing, then it was a useful tactic or tool.”

To some of its critics and philosophical opponents, CCR has “matured” in its litigation efforts in recent years.

“I think CCR has had a reputation in the past as being somewhat kooky in the cases it has brought,” said Richard Samp of the Washington Legal Foundation, which filed a brief on behalf of the government. “So long as they were closely associated with William Kunstler, they always had a fringe reputation and the ACLU was a much more mainstream group.” Samp credits the influence of Ratner and Cole for making CCR a “much more respectable and mainstream left-wing organization.”

Leveraging resources

With its small staff and an annual budget of $2.5 million, CCR is accustomed to leveraging limited resources into major work, said CCR’s Fogel. The detention cases, he added, are extraordinary in presenting novel issues and practical litigating problems.

In the Turkmen case, for example, every one of CCR’s clients has been deported.

“We have to go abroad to meet with them; there are issues of identifying who assaulted them, which is one part of the case,” said Fogel. “It presents extraordinary problems–how to present depositions, courtroom testimony, how to stay in touch with them.”

The Rasul case, besides its jurisdictional issue, represents the first time CCR has litigated a case all the way to the Supreme Court without ever communicating with its clients, he added.

In its third detention case, CCR has filed a human rights suit against U.S. officials who arrested Canadian citizen Maher Arar in 2002 because they believed he knew an al-Qaeda member. They then summarily sent him to Syria, fully aware, charges CCR, that he would be interrogated under torture. Arar was released by Syria after nearly a year. Canada recently announced a public inquiry into Arar’s case. Arar v. Ashcroft, No. CV-00249-DGT (E.D.N.Y.)

And in Humanitarian Law Project v. Ashcroft, No. CV03-6107 (C.D. Calif.), Cole, on behalf of CCR, is challenging a Patriot Act provision that included “expert advice and assistance” in the definition of the crime of providing material support to designated foreign terrorist organizations. CCR’s clients are organizations and individuals who wish to provide legal, medical and technical assistance to two designated groups.

A federal judge in January found the Patriot Act provision unconstitutionally vague.

Moving forward

As they prepare for the Guantanamo Bay argument, CCR’s Ratner and Shearman’s Thomas Wilner, who represents a group of Kuwaiti detainees and their families, say they will not be surprised if the government finds little broad support for its position.

“I’ve always said this should not be a liberal or conservative or Democratic or Republican issue,” said Wilner. “From the beginning, some of our strongest supporters were right wing or libertarian.”

Robert Levy of the self-styled libertarian Cato Institute said conservative groups’ active opposition to the Patriot Act runs deep and extends to the government’s position on detentions.

“There’s a good deal of discomfort,” he said, particularly with the detention of American citizens labeled by the White House as “enemy combatants.”

Besides the Washington Legal Foundation, Pat Robertson’s American Center for Law and Justice intends to file in support of the government. Robertson is formerly the head of the Christian Coalition.

Law as well as politics can make strange bedfellows. And in the Rasul and Al Odah cases, there is, at first blush, something strange about the global corporate firm of Shearman strategizing with the global human rights activists of CCR.

What is striking, though, is the unity of their focus, said Douglas Cassel, director of the Center for International Human Rights at Northwestern University School of Law. Cassel is coordinating amicus briefs in the case.

Familiar with CCR’s work for decades, Cassel said, it is an organization “which has a vision and a philosophy, and yet when it comes to hard-nosed litigation tactics and decision-making, they don’t have their heads in the clouds. These guys are good tough experienced lawyers.

“One needs to have a dream but one also needs to get the job done and they’re doing both,” Cassel noted.