I wrote about Michael Ratner in my New York Review of Books essay – which reprises part of a chapter of Humane, my new book – for a very simple reason. Ratner’s anti-war commitments were deep and unquestionable. They have by no means been so clear and frontal in the human rights community in recent decades. There is material for gripping drama, therefore, in the fact that Ratner played a leading role in our collective tragedy, in which removal of some of the atrocity from American war allowed that war to be to legitimated more easily.
Contrary to some early reactions, my portrait of Ratner is entirely laudatory. And amazingly, Joe Margulies and Baher Azmy – likewise great figures in my estimation – have published a denunciation of me in Just Security that concedes much of my case. Rhetoric aside, everyone agrees about a great deal – except, perhaps, who is allowed to reflect on that tragedy and how publicly.
In part because the headline on my article (which I didn’t write) mentions Ratner’s alleged role in “sanitizing” the war on terror, it set off a number of people. I do apologize contritely to anyone I offended along the way. In spite of my own intentions, there were unintended consequences to the excerpting of the article from the book and some of its framing. The piece was taken almost as if an act of profanation of a holy shrine. (“Blasphemy,” as one Twitter commentator put it.) Religion might have saints demanding nothing but worship, but human rights movements cannot. Even so, I want to begin by repeating that my admiration for Ratner is powerful and real. It was precisely because he epitomizes a tension in my own ideals between opposition to war and revulsion at crimes in it – and because he was forced to choose between these ideals in practice and succeeded in advancing one at the price of the other — that make his career endlessly fascinating.
And fortunately, a closer look suggests that the rhetoric of this episode does not match the real issues that deserve to survive it. Margulies and Azmy’s explosive claims of “fabrication” – though admittedly it is in their headline not their text, in case they didn’t write theirs either – are a case in point. The implication of that word “fabrication” is that I have falsified some facts, but what I see is a misunderstanding. Margulies and Azmy read my book and essay as arguing that Ratner abandoned his anti-war efforts after Sept. 11, 2001. But I was focused, in the main, on his historic litigation against American militarism. I never claimed that Ratner reneged on his core philosophy at any point. Indeed, my article is replete with examples of his anti-war views from the beginning of his career to the end, precisely because they were not universally shared in the human rights community then or now. It was the premise of my argument that Ratner lived a tragedy not because he gave up any ideals, but because he was forced to pursue some rather than others. I do cite my own evidence that Ratner said in an interview that he “gave up” on his historic litigation of American militarism in order to focus on litigating the egregious conduct of the war on terror. Margulies and Azmy agree he did so. Margulies and Azmy, indeed, acknowledge that Ratner is remembered above all for his extraordinary successes on this front. Most important, everyone also agrees that it was necessary and understandable for him to establish that priority: there was no alternative viable choice but to attempt to oppose the emerging war (in court) by striking a blow against its various legal improprieties.
If I do not see any disagreement about facts, is there disagreement about interpretation? I don’t think so. The response that leaving wars brutal is anything but a good alternative to “sanitizing” them is a red herring. I never said it was, no matter how many times David Cole and Ken Roth take the easy out of attributing that belief to me anyway. But since I’ve responded to Ken elsewhere, I won’t belabor the point. I certainly agree with my critics that failing to oppose wrongs within the war on terror would have been a worse decision, and that Ratner made the necessary and right choice in his moment. But it hardly follows that, in other moments, there is never any alternative but horrible war without law to humane war under law.
And even when there is no viable option but to reduce the gross harm in a systemic evil, doing so can help entrench or legitimate it. As Jameel Jaffer remarked at the recent panel co-hosted by Just Security and the Knight First Amendment Institute featuring reflections by senior leaders of U.S. human rights organizations who steered their organizations through the post-9/11 period, good and necessary acts can create potentially undesired consequences. Choice is risky – and you own the risks, especially if they are incurred, even when you had no other choice but the one you made. That is my whole argument in the piece: that Ratner’s victories, which he providentially won when he had no other choice but to pursue the strategy he did, created conditions for a newly legitimated war.
It was not, of course, a matter of Ratner’s intentions that this legitimation happened. How the war was delegitimated by activists and journalists working against President George W. Bush nonetheless proved utterly crucial to how its evolving forms were legitimated under President Barack Obama, whose genius was to seize the opportunity that prior years allowed. In his major defenses in public of what Spencer Ackerman has dubbed the “sustainable war on terror,” Obama unerringly pointed to the fact that it had now been legalized and rendered “humane.” It may not have been within the legal framework that Ratner pushed to establish, but – like the impossibility of challenging the war paradigm at the start – that is what makes the outcome a tragedy.
This legitimation through the rule of law occurred for a number of reasons. As Margulies and Azmy accurately observe, a constellation of powerful forces conspired to lead to a very different result than Ratner strove to achieve. I have genuinely wondered – since I didn’t find any evidence in the public record – how Ratner thought about those in what Cole called his “army” or associates who, as soon as days after Obama’s election, began musing about the propriety of preventive detention, or crossed into administration service to justify new wars or formalize rules for targeted killings. The truth is, I don’t know how Ratner felt about such allies, though I haven’t seen public rebuke of such choices comparable to that of my attempt to dramatize Ratner’s tragedy. But from my perspective, the fact that coalitions do not take one’s cause in the direction first planned raises a further dimension of the tragedy, for the legal challenge to the most noxious features of the war on terror splintered thereafter about the meaning of the achievement. Was the goal a kinder, gentler war on terror under law, or something better and different? Ratner’s own righteous fury toward the continuation of America’s endless wars, of course, was clear. But he did not win every battle, even among friends.
Most strikingly, my central argument about how Ratner’s victory on one front helped set up the conditions for defeat on another is consistent with a proposition Margulies and Azmy readily admit – to the point of calling it banal. They concede “that litigation has unintended, and sometimes tragic consequences,” which is all I contended. To say that your act had unintended consequences is to acknowledge that it helped make possible the acts of others – whether you like them or not. The primary disagreement I can detect in Margulies and Azmy’s essay, then, is their estimation of how interesting it is to dwell on the paradoxes and perversity even of good and necessary choices, as well as how far one man and one case in particular (which my essay clearly treated as symbolic of a general strategy of response to the early war on terror) set the terms for the future.
I invite readers to examine the chapter of Humane, and the book as a whole, to consider whether pondering Ratner’s tragedy bears any lessons worth learning about our choices outside the unforgiving situation he faced. In the mainstream, human rights enjoyed a stronger relationship to the ideal of peace in the 1940s and 1980s than since, particularly because organizations have considered opposing wars too “political” or even supported some. At stake is whether, beyond Ratner’s own counterexample, humanitarianism and peace will continue to have strained relations. Activists across the country are moving to “abolition” across a wide range of areas, anxious that “harm reduction,” though necessary, could interfere with their higher aims. At the moment, however, President Joe Biden has promised to continue counterterrorism while withdrawing from counterinsurgency – though we don’t know the shape of his counterterrorist policies, and the continuities and discontinuities between them and the approaches of his two predecessors. When is the time for activists to mount a concerted challenge to the war paradigm Ratner conceded he lost – if not now?
The question remains concerning who is allowed to raise the concerns I did. Scholarship is also political. I am under no illusions, of course, that it is politically effective, let alone engaged in the heroic way Ratner was. I sympathize with Ratner’s own disdain, reported in his autobiography, when he visited my own school and found so few deigning to strike blows for justice themselves. But the flip side of the credit that activists deserve for improving the world is reflection on and responsibility for the collateral effects of their choices.
Even then, the point is not blame or criticism. It is for the sake of next steps. At the Just Security and Knight First Amendment Institute event I mentioned, Elisa Massimino, former president and CEO of Human Rights First, explained the human rights community should “not shy away from questioning our own decision-making back then and thinking about whether we may have inadvertently strengthened a narrative that makes the longer-range change more difficult.” She added: “I’m not a fan of folks who are not in the arena lobbing those critiques.” I respect Massimino’s perspective, though obviously I don’t share it. But Massimino was entirely correct to call for pondering what happened. As she noted: “I do think that we have an obligation to each other inside the community to be asking those questions.” I hope they survive for others than me to pose more cautiously and discreetly – after earning the right to do so – in the future.
Image: The courtroom of the U.S. Supreme Court is seen September 30, 2016 (Photo by Alex Wong/Getty Images)