By David Cole, The New York Review of Books, May 15, 2016
As Barack Obama looks to the end of his tenure as president and commander-in-chief, the prison camp he inherited at Guantánamo Bay remains one of his most frustrating challenges. He promised to close it on his second day in office. He has transferred out two-thirds of the prisoners left there when he became president. And in February he issued a comprehensive plan to complete the closure. Yet the camp remains open, and Congress remains adamant about keeping it that way.
Still, Guantánamo is, thankfully, a shadow of its former self. President George W. Bush brought 779 men to the camp, held them in secret, denied them hearings or lawyers, and had them tortured. Today, there are only eighty prisoners left, torture has long ceased, everyone who wants a lawyer has one, and many of those still there have been cleared for release once a country can be found to take them. Obama deserves credit for some of the improvement, but much of it had occurred even before he assumed office. Bush himself released more than five hundred detainees, for example. The real credit lies with neither president, but with the hundreds of lawyers and thousands of activists who have stepped forward to advocate for Guantánamo inmates. And many of these lawyers and activists in turn owe much of their inspiration to one man: the human rights attorney Michael Ratner.
Ratner, who died on May 11 at seventy-two and led the Center for Constitutional Rights (CCR) for much of his career, will be most remembered for filing Rasul v. Bush, the first lawsuit challenging President Bush’s wartime detentions. The suit, filed in 2002, was dismissed out of hand by the trial court and the court of appeals, as most observers, and for that matter, Ratner himself, expected. Yet to everyone’s surprise, in 2004 the Supreme Court ruled for the detainees. It was the first time in history that the Court had ruled against the president on behalf of alleged enemy fighters in wartime. And it was the first of four Supreme Court decisions between 2004 and 2008 that rejected President Bush’s assertion of unchecked executive power in the “war on terror.” By rejecting Bush’s attempt to make Guantánamo a “law-free zone,” the case set a pathway to freedom for hundreds of wrongly imprisoned men, and reunited countless divided families.
But equally important, Rasul and other seemingly hopeless cases that Ratner took up during his forty-five-year career nurtured an army of like-minded activists and lawyers, whose own lives and careers were forever changed by their work alongside him. Ratner’s legacy lies not just in the precedents he set, or the men he helped free, but in the countless young men and women who were transformed by working with him into forceful advocates for human rights. If and when Guantánamo is closed, it will be because of these men and women.
In fact, Rasul was Ratner’s second unlikely Guantánamo victory. The first came a decade earlier, when President Bill Clinton used the naval base there to warehouse HIV-positive Haitian refugees who the administration was unwilling to bring ashore. Ratner took up the refugees’ case with a Yale Law School clinic he was then co-teaching with Harold Koh. In that case, just as a decade later, the US argued that the Constitution did not apply because the detainees were foreigners held outside US borders. But in the end, the Clinton administration was compelled to bring the Haitians to the mainland.
Both cases were Ratner’s idea (although he would not hesitate to credit his principal initial colleagues, Koh on the Haitian case, and Joe Margulies, Clive Stafford Smith, and Steven Watt on Rasul). But in both cases he needed, and recruited, hundreds to help him achieve the result. In the process, these cases did more than change law; they changed lawyers. Many of those who worked with Ratner continue to fight to this day for the remaining Guantánamo prisoners, as well as for many other causes.
Over one hundred Yale law students worked with Ratner and Koh on the Haitian litigation. A striking number of them have gone on, shaped by that experience, to pursue social justice. Sarah Cleveland now teaches human rights at Columbia Law School, and serves as the US representative to the UN Human Rights Committee. As she told me, “Michael showed all of us vividly how law can and must be used to constrain power—regardless of whether you succeed in a particular case.“
Another Haitian case alumnus, Mike Wishnie, now runs a clinic at Yale Law School that represents immigrants, low-wage workers, and disabled veterans, and inspires still more students to take up the cause. He recalled, “I came to law school skeptical that the slow, resource-intensive, blunt force of litigation could ever be useful in addressing complex social problems like poverty or racism. Michael showed me that one could be a lawyer for social justice in the courtroom and in the street and in the public debate, and that one could do so with craft and integrity and joy, even in the hardest cases.”
Countless other Yale graduates followed Michael’s lead. Lisa Dauggard directs the Public Defender Assocation in Seattle. Margo Schlanger founded and heads the Civil Rights Litigation Clearinghouse at University of Michigan Law School. Paul Sonn is General Counsel of the National Employment Law Project. Catherine Powell teaches human rights at Fordham Law School. Cecillia Wang heads the ACLU Immigrants’ Rights Project. Tory Clawson has spent her career with Save The Children, much of it living and working in Asia. Graham Boyd leads the ACLU’s drug legalization project. Van Jones founded Dream Corps, a nonprofit devoted to environmental and social justice. Michelle Anderson is the dean of the CUNY-Queens Law School, the nation’s only law school committed to training public interest lawyers. And the list goes on.
Much the same thing happened a decade later. After Ratner and his colleagues won Rasul, more than five hundred private attorneys from across the country volunteered to represent them. Most had little or no experience in the obscure law of habeas corpus; none had ever represented an “enemy combatant.” Under Ratner’s leadership, CCR coordinated their efforts, trained them, and managed a listserve on which attorneys shared strategy and research.
In 2006, Wells Dixon was a young lawyer at the New York corporate law firm Kramer Levin doing corporate securities and white collar criminal defense when his firm loaned him to CCR for six months to help out on the Guantánamo litigation. He never returned, and is now a senior staff attorney at CCR, still working on some of the hardest and longest-running Guantánamo cases.
Steven Watt, a young Scottish lawyer who had never practiced in the US, showed up at CCR in November 2001, just days after President Bush had issued an executive order establishing military tribunals to try terrorists. He remembers Ratner predicting that Bush would bring the men he captured to Guantánamo. They started planning a lawsuit then, before the first prisoners even arrived. Steven worked on the Guantánamo cases at CCR for several years, much of it without pay. Today, he is a human rights lawyer at the ACLU, where he is suing the psychologists who devised the CIA’s torture tactics for interrogation.
Seema Ahmad worked as a liaison with Guantánamo clients and their families. She says she learned from Ratner “that one of the most spiritually fulfilling experiences is to stand with someone that has no one and to see them as human and to learn their story.” She is a public defender today.
Joe Margulies had been a capital punishment and civil rights lawyer in Minneapolis, with no experience in international law. But Ratner asked him to serve as co-counsel in Rasul. To this day, he represents Abu Zubaydah, a Saudi man mistakenly thought to be a high-level Al Qaeda official, and repeatedly subjected to waterboarding and other torture because he couldn’t tell the CIA what he didn’t know. In 2014, Abu Zubaydah was awarded 100,000 euros in damages by the European Court of Human Rights against Poland for its part in allowing him to be held in a CIA secret prison there. But he remains imprisoned at Guantánamo.
David Remes was a partner at the prestigious Washington firm of Covington and Burling when he volunteered in 2004. Four years later, he resigned from the firm to work full-time on freeing the detainees. He is still at it.
Tom Sullivan was a seventy-two-year-old former US Attorney and partner at the corporate law firm of Jenner and Block when he read about Rasul in the paper and saw that CCR was looking for volunteers. He picked up the phone and offered his firm’s services. For more than a decade, Sullivan and several other lawyers at the firm have represented about twenty men at Guantánamo. All but one client have been released. The firm has devoted thousands of hours to the work, all without compensation.
Sabin Willett was a partner specializing in bankruptcy when he volunteered in 2005. For six years, he and a team of lawyers at his firm, Morgan Lewis, represented twenty-three Uighur detainees at Guantánamo, until the final one was released in 2011. He spent as many as one thousand hours a year on the work. As he told me, “it left me firmly believing that one can—and should, when the country goes wrong—get into the arena oneself. And that even I can do this—which means anyone can.”
The volunteers didn’t always have large corporate firms to support them. Ellen Lubell and Doris Tennant run a two-person office outside Boston, specializing in family law, nonprofit advising, and copyright. They had never done anything remotely like habeas corpus litigation. But they spent four and a half years representing an Algerian man, for which they traveled to Guantánamo six or seven times. He is now back in Algeria. Dicky Grigg, a personal injury lawyer in Austin, Texas, who said his practice focuses principally on “which car entered the intersection first,” also volunteered. “It was the most meaningful thing I’ve done in my legal career,” he says.
Lawyers tend to measure success in how their cases affect their clients first, and the state of the law second. Some, of course, also look to their own bottom line. But when one fights for social justice, as Michael Ratner did, these measures are inadequate. Ratner was a one-man force multiplier. By involving so many in his work, he inspired others to follow in his footsteps. I know. He took me under his wing when I was just a law student, pretty sure that I did not want to practice law at all. He gave me lead roles in bold and ambitious cases, and guided me with wise and supportive advice. I ended up working with him for my first formative decade as a lawyer.
Ratner was deeply disappointed that he did not live to see Guantánamo closed. But it says much about his legacy that so many of the nearly eight hundred prisoners once housed there have been released, and that those remaining have forceful and dedicated advocates working on their behalf. It is now up to Obama, and Congress, to complete.