It was one of those unseasonably warm winter days that makes you fear for the future of the planet. Three lawyers were sitting at a conference table in the lower Manhattan offices of the Center for Constitutional Rights (CCR): Joe Margulies, then a Minneapolis civil rights lawyer and now a Cornell professor (and co-author of this essay); Michael Ratner, CCR’s longtime president; and Steven Watt, a young staff attorney with CCR who now works with the ACLU Human Rights Program. They were on the phone with Stephen Kenney, a lawyer in Adelaide, Australia. It was mid-January 2002.
The United States had just begun to populate the prison at Guantanamo Bay. President George Bush had already declared that the United States would not comply with the Geneva Conventions unless it felt like it. The prison was strictly off-limits, as were the prisoners. When the first group arrived, a small knot of journalists, including the indefatigable Carol Rosenberg, was allowed to watch the prisoners as they were paraded by, like a war on terror perp walk.
The journalists couldn’t speak with the prisoners or take pictures. The iconic first picture of 20 shackled prisoners kneeling on the gravel in a long, narrow pen surrounded by chain-link fencing topped with razor wire was taken by a soldier and released by the Pentagon a week later.
In exchange for this “access,” the journalists sent a pool account to the Pentagon press corps. Here’s a bit of what they saw:
2:55: First prisoner comes off. He is wearing a fluorescent orange jumpsuit, a shiny turquoise face mask, goggles, similar colored orange socks over white footwear, a brighter orange head cover that appeared to be a knit cap. His hands were manacled in front of him, and he limped. He was frisked and led, by at least two Marines, to the awaiting bus.
As soon as the prisoners arrived, the fear and hyperbole machine kicked into high gear. Defense Secretary Donald Rumsfeld said they were “among the most dangerous, best trained, vicious killers on the face of the earth.” Vice President Dick Cheney called them “bad people,” and “the worst of a very bad lot.” The award for the most extravagant claim goes to General Richard Myers, then the Chairman of the Joint Chiefs of Staff, who described the prisoners as “very dangerous people who would gnaw hydraulic lines in the back of a C-17 to bring it down.”
Backed by this hyperbole, everyone knew what would come next. As Cheney said, “They may well have information about future terrorist attacks against the United States. We need that information.” Guantanamo was built to be the perfect interrogation chamber.
We now know that the great majority of prisoners at Guantanamo had no connection to terrorism. But in early 2002, all we knew was that the government had seized a number of people under unknown circumstances, transferred them to an offshore prison, renounced the Geneva Conventions, and vowed it would do whatever it took to get the information it thought the prisoners had.
One of the first prisoners to arrive was Australian David Hicks. At the time, the government wasn’t disclosing prisoners’ names, but as a favor to the Australian government, the administration had confirmed that Hicks was at Guantanamo. David’s father, Terry, was worried sick about his son and desperate for news. He had hired Stephen Kenney to see what could be done. Kenney had learned that CCR was planning litigation and on that January afternoon, we were on the phone to discuss next steps.
Kenney wanted us to be in court as soon as possible. The world didn’t know what was happening to David and the other prisoners at the base, but we certainly knew enough to be concerned for their welfare. But there was a problem. We had originally planned to challenge the U.S. military commission system, and no one had been charged. We explained that to Kenney, who was incredulous.
“Don’t you get it?” he asked, his voice rising in frustration. “They’ll never charge David. If they can keep him without charges and do whatever they want to him, why on earth would they prosecute him?”
Ratner and Margulies looked at each other as though a light went off in their heads at the same time. Of course. The problem was not the legality of some process that may never arrive. The problem was indefinite detention without process at all. That was the illegality.
The litigation that would reach the Supreme Court in Rasul v. Bush was born on that phone call. Margulies left New York that afternoon, returned to his office, and wrote the petition that would become Rasul v. Bush, which they brought in February 2002 on behalf of Brits Shafiq Rasul and Asif Iqbal, and Australians David Hicks and Mamdouh Habib. Like the immortal cells of Henrietta Lacks, that petition would eventually form the basis for all the Guantanamo litigation over the years that challenged the lawfulness of a prisoner’s detention, including the Supreme Court’s decision in Boumediene v. Bush.
But it began with the desperate terror that gripped a father over the welfare of his son, and the certainty of an Australian lawyer that we had to go to court to challenge what the government was doing.
For Michael Ratner, this was familiar territory, and he never doubted it was the right course. Ratner knew from a lifetime fighting U.S. militarism, racism, and torture that Guantanamo, if unchecked, would become a centerpiece of American authoritarianism, where lawlessness and violence would redound across American democratic institutions. At the time, Guantanamo was the crown jewel of the Bush administration’s war on terror, and habeas was a fundamental challenge to that war-making authority.
But if Yale law professor Sam Moyn had been in that conference room, he apparently would’ve tried to stop Margulies and Ratner from going forward. “No, no. You can’t challenge the detentions at Guantanamo,” he might’ve said. “You have to challenge the war itself. Yes, that means David Hicks and all the other prisoners will be left to the mercy of the US government, but that’s the point. The detention is inhumane, but so is the whole enterprise. Your litigation will only humanize the war, and that would be a terrible tragedy.” Or so Moyn’s writing suggests in the pages of the New York Review of Books.
The idea is that by challenging detentions rather than the war itself, Margulies, Ratner, Watt, and the fourth lawyer on the initial team, Clive Stafford Smith (and presumably, the hundreds of lawyers who followed in their footsteps), validated the war on terror. And by smoothing down the roughest edges of the detention policy—providing detainees with a largely symbolic right of access to the courts, for instance—they gave a patina of legitimacy to what is at its core an illegal, immoral war, and in that way enabled our current quagmire of endless, boundless conflict.
In fact, writing Margulies and the rest of the Rasul team out of history, Moyn makes the remarkable claim that Ratner, one of the most consistently ferocious anti-war advocates of this or any generation, bears singular responsibility for our current, metastasized war:
In the years after September 11, 2001, Michael Ratner set aside the why, whether, and how long of America’s global wars and concentrated instead on legally battling for controls on how they proceeded. In the annals of recent history, no one, perhaps, has done more than this leader of the Center for Constitutional Rights to enable a novel, sanitized version of permanent war. By legalizing the manner of the conflict, Ratner paradoxically laundered the inhumanity from what began as a brutal enterprise by helping to recodify a war that thus became endless, legal, and humane.
Moyn’s book, from which his NYRB essay is adapted, contains similar claims that Ratner gave up his anti-war efforts after 9/11 in favor of trying to make the war “humane.”
Moyn is fantastically wrong. One of us was lead counsel in Rasul. The other is the Legal Director of the Center for Constitutional Rights. We have both challenged various aspects of the war on terror for its entire existence, a journey that now includes five cases in the Supreme Court and countless cases in the lower courts and international tribunals. Whether intentionally or not, Moyn has slandered the memory of a great man and misrepresented what he believed.
We write to set the record straight.
To begin with, Moyn agrees—as he must—that a challenge to the lawfulness of the congressionally authorized war in Afghanistan would have been bounced out of court before the ink on the filing stamp had dried. But he still thinks the Rasul team should have traveled down that road, if only to speak truth to power. Only someone who has never represented a client in his life would suggest it would’ve been better to file litigation that had no remote chance of success instead of trying to prevent a prisoner’s lawless and inhumane detention. The very suggestion is insulting, and Michael understood that better than anyone.
We won Rasul, but even if we had lost, filing it still would’ve been the right thing to do; lending our voice to men whose voices had been silenced, and demanding that the law protect them when the state would not, is a lawyer’s highest calling. No one embodied that belief better than Michael Ratner.
Then there is the idea that by bringing the detention litigation, Michael somehow accepted the legitimacy of the war. This is simply muddle-headed; a person can obviously oppose war and torture at the same time, and Michael did both. But far worse, the image of Michael conjured by Moyn is factually untrue if not downright dishonest. Michael, who lived and worked within sight of Ground Zero, publicly opposed the war before it even began. On September 23, he wrote an article with Jules Lobel that outlined why Bush’s plan for war violated international law. Ten days later, in a speech to the New York City chapter of the National Lawyers Guild, he said, “The attack on September 11 should not have been called and treated as acts of war by the government. The attack was a criminal act, a crime against humanity under international law — the mass killing of a civilian population. Crimes Against Humanity are what we tried the Nazis for at Nuremberg.”
In November 2001, at the height of American popular support for the intervention in Afghanistan, Democracy Now hosted a debate, “Is It Possible for The U.S. to Wage a Just War?” with Ratner arguing that even a “limited” war in Afghanistan could not be justified because of the carnage and chaos it would unleash in the region. In a subsequent speech, “Building Post 9/11 Security: Permanent War Abroad and Permanent War At Home,” Michael warned of the human devastation and blowback from what he presciently predicted would become “permanent war.” In his book, Moyn calls upon advocates of humane treatment in war to pursue their efforts “in tandem with an impassioned commitment to controlling the use of force,” a line important enough to be highlighted in the New York Times’ review of the book. That Moyn would make this call while attacking the man who best represented the ideal is more than bad scholarship. It is shameful.
To his dying breath, Michael fought against war in every forum he could access – courtroom, classroom and media. Yes, he is remembered for the Guantanamo litigation. But that was hardly his only anti-war campaign. He pressed for Donald Rumsfeld to be charged with war crimes in Germany under a radical theory of universal jurisdiction. He sued private military contractors for war crimes because he saw the connection between capitalism and war. He represented Muslim men rounded up after 9/11 and beaten in jail. He was a consistent critic of Israel for its military occupation of Palestinian territory.
Michael continued to attack the endless, global war on terror long after Bush left office, criticizing President Obama in 2013 for failing to “end continuous warfare” and for not recognizing the many grievances that propel it, including concerns about “U.S. hegemony, domination, control, oil, Iraq, Palestine.” His New York Times obituary ends with a prescient quote of what Michael told the Times in 2002: “A permanent war abroad means permanent anger against the United States by those countries and people that will be devastated by U.S. military actions.” And Michael opposed war in all its disguises; he thought the very idea of a humanitarian military intervention was a contradiction in terms. Suggesting that a person with such lifelong commitments unintentionally “sanitized” war, an argument advanced to fit some heuristic about the failure of liberals in the post 9/11 era, is just arrogance clothed in academic jargon.
As much to the point, the idea that the detention litigation in general, or Rasul in particular, is somehow the reason the war on terror has become an endless, lawless monster is just silly. As a result of the war in Afghanistan, the first phase of the war on terror was largely fought on the ground, which predictably led U.S. forces to capture and interrogate a great many prisoners. Hence the detention litigation. But that phase of the war has long since been supplanted by an entirely different war, one that is expressed by the NSA’s aspiration to “information dominance.” More than anything, the war on terror is now a war of continuous, global surveillance followed episodically by drone strikes. It is a war about signals more than soldiers. Nothing in Rasul, or any of the detention litigation, has the slightest effect on this new phase. It doesn’t humanize it, as Moyn suggests, nor does it rationalize or legalize it. To put it differently, even if we had never filed, fought, and won Rasul, the country would still be in the exact same, endless war, but without having exposed the lies, torture and incompetence undergirding the military’s Guantanamo project.
Finally, Moyn tries to make his point by unfairly diminishing what the detention litigation accomplished. The rhetorical move is simple enough: if the litigation achieved nothing of value, while giving the war on terror an undeserved fig leaf, then it was a tragic mistake. Granted, Margulies and Ratner both came to regret that Rasul did not accomplish what they had hoped, which was to end indefinite detention without meaningful process. But though it did not reach its ultimate goal, it nonetheless achieved other important outcomes, for which Ratner was justly proud.
The most significant of these is the least understood by the public. The Bush administration chose Guantanamo because it was isolated, wholly controlled by the U.S. government, and beyond the reach of the federal courts, or so it believed. In this setting, they hoped to create an interrogation regime like no other, one that traded some of the brutality of the CIA black sites for greater proximity, size, and sustainability. Rasul dashed this hope. By bringing the prisoners within the jurisdiction of the federal courts, we forced the government to open the base to a steady stream of lawyers. This destroyed the isolation upon which the interrogation regime depended. As Margulies used to say to the lawyers he and CCR trained to handle habeas cases after Rasul, “if we open it up, they will shut it down.”
But Rasul was not simply about lawyers getting in; it was also about clients getting out. By securing the right to access lawyers, Rasul actually achieved more for clients than did the seemingly path-breaking but ultimately toothless Boumediene. Getting lawyers to the base allowed them to share their clients’ stories with the world. A place like Guantanamo survives only by nourishing the myth that those within its walls are beyond the circle of human concern. That story collapses when someone can expose the lie.
We are reminded of Tariq Ba Odah, another CCR client. Ba Odah withered to 74 pounds from the escalating ravages of starvation brought on by an eight-year hunger strike he refused to give up. Tariq’s CCR lawyer, Omar Farah, filed a petition for his release relying in part on the humanitarian provisions of the Geneva Conventions, precisely the sort of claim Moyn would criticize. Ba Odah had been cleared for release, but like others, the clearance changed nothing and he languished at Guantanamo. The petition argued that, quite apart from his clearance, he was too sick to “fight” and had to be freed. By making this claim, CCR drove a publicly aired wedge between the Department of State and the Department of Defense that ultimately led to Ba Odah’s release. Far from masking the horrors of U.S. militarism, litigation like this reveals it.
Yet perhaps Moyn is not criticizing Margulies, Stafford Smith, and CCR for the detention litigation. Maybe he is simply making the spectacularly banal point that litigation has unintended, and sometimes tragic consequences. Well, yes. Isn’t it a shame that the Justice Department under four presidents has fought so hard to maintain Guantanamo as a prison beyond the law? Isn’t it a shame that the DC Circuit has, at least to date, endorsed the attempt? Isn’t it a shame the Supreme Court let it happen, denying certiorari in one case after another as Boumediene was shredded. As Moyn says, it’s a tragedy.
But as our friend and Yale law professor Hope Metcalf says, “so what?” No experienced civil rights lawyer, and certainly not one as political as Michael Ratner, needs a law professor to explain that the courts are not a reliable friend of the weak. The insight that litigation by itself cannot achieve progressive change was old when Gerald Rosenberg put it in writing 30 years ago. And tying this observation to a larger political lesson—that power adapts to protect its interests—was old when Marx wrote it down nearly two centuries ago.
No one was more cynical about the courts than Michael. He understood that the courts were a place where the battle had to be fought—a battle for the triumph of human dignity—but not where the war would be won. Michael knew what Moyn apparently cannot grasp, which is how great lawyers use litigation strategically to advance a legal argument, but also to expand the circle of allies and influence the public narrative.
When Margulies and Ratner filed Rasul in early 2002, they had trouble finding local counsel in Washington, D.C. Other prominent civil rights organizations were too timid to join them. Yet by 2008, there was a broad, public consensus, backed by countless human rights organizations, current and former military officials, national security experts, journalists, judges, diplomats, lawyers and a wide swath of the American public, that Guantanamo was a failed experiment. By 2008, even President Bush thought Guantanamo should be closed, to say nothing of candidates Barack Obama and John McCain.
We don’t know what Moyn was doing while Ratner was taking on the post-9/11 war machine. But we know he did not help recruit the hundreds of lawyers, activists and organizations into what David Cole dubbed “Michael Ratner’s army.”
Under Ratner’s leadership, CCR transformed Guantanamo into an international symbol of lawlessness and hubris. Around the world, the very word, Guantanamo, ranks with Robben Island as an instantly recognizable mark of authoritarian abuse. That’s the tragic irony in Moyn’s critique. He writes about the detention litigation as though it were a failure. But the only reason he knows about it is because of its success.
And for that we can all thank Michael Ratner.