Don’t Pursue War, Pursue War Crimes: Michael Ratner’s Decades-Long Battle to Close Guantánamo

OCTOBER 01, 2021

We look at the life and legacy of the late Michael Ratner, the trailblazing human rights lawyer and former president of the Center for Constitutional Rights, with three people who knew him well: Baher Azmy, legal director of the Center for Constitutional Rights; Vince Warren, the organization’s executive director; and ​​Lizzy Ratner, Ratner’s niece and a senior editor at The Nation magazine. Michael Ratner spent decades opposing government abuse and fought to close the U.S. base at Guantánamo Bay, first in the 1990s when it was used to hold thousands of Haitian asylum seekers and later when the George W. Bush administration opened a military prison there to detain hundreds of people from the so-called war on terror. Ratner died in 2016 at age 72. His posthumous memoir, “Moving the Bar: My Life as a Radical Lawyer,” has just been published.

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.

It’s been nearly 20 years since George W. Bush opened the U.S. military prison at Guantánamo, where 779 men in total have been held, overwhelmingly without ever being charged. They were tortured, held in isolation, stripped of their rights. President Biden is the fourth president to oversee Guantánamo, which is based at the U.S. naval base in Cuba. Today, 39 men remain, including at least 10 who have already been cleared for release but remain locked up.

The military prison is only one part of the history of Guantánamo. In the early 1990s, the U.S. held over 12,000 Haitian asylum seekers at Guantánamo. On part of the base, the U.S. set up the world’s first detention camp for refugees with HIV. Now the Biden administration is considering once again holding Haitians at Guantánamo. NBC recently reported that the Biden administration is advertising for a new contract to operate a migrant detention facility at Guantánamo with a requirement that some of the guards speak Spanish and Haitian Creole.

Today we look at the life and legacy of Michael Ratner, a trailblazing lawyer who worked to shut down the Guantánamo HIV camp in the 1990s, where Haitians were held, then later led the fight to win habeas corpus rights for Muslim prisoners held at Guantánamo after the September 11th attacks. He was also a lifelong critic of war and U.S. imperialism.

Michael Ratner died five years ago, but his influence on the legal community can still be felt. OR Books recently published Michael’s posthumous memoir, Moving the Bar: My Life as a Radical Lawyer. It details his involvement in decades of legal battles while working at the Center for Constitutional Rights.

In a moment, we’ll be joined by three guests who knew Michael well, but first let’s turn to Michael Ratner in his own words. Here he’s speaking in 2007, when he was awarded the Puffin/Nation Prize for Creative Citizenship.

MICHAEL RATNER: Today we’re in the midst of a pitched battle, a pitched battle to put this country back, at least ostensibly, on the page of fundamental rights and moral decency. The battle is difficult, and the road is long and hard. On occasion, I get pessimistic. Sometimes I and my colleagues feel like Sisyphus. Twice — not just once, twice — we pushed the rock up the hill and won rights for Guantánamo detainees in the Supreme Court, and twice the rock was rolled back down by Congress over those rights. So we pushed it back up again. Five days ago, we were in the Supreme Court for the third time. It was difficult, more difficult than before, because the justices have changed. Four are antediluvians, lost forever to humanity.

But before I get us all depressed, we’ve had our victories. We’ve gotten lawyers to Guantánamo, stopped the most overt torture and freed half of the Guantánamo detainees — over 300. We have gotten Maher Arar out of Syria. Canada has apologized for his torture, given him a substantial recovery — in Canadian dollars, which is no embarrassment anymore. They said he was an innocent man, but he remains on the U.S. terror list. We have slowed, but not yet stopped, a remarkable grab for authoritarian power.

I also don’t look hope — I also don’t lose hope, because I think about the early days of Guantánamo. At first, we were few. But now we are many. At first, when CCR began, we were the lonely warriors taking on the Bush administration at Guantánamo. Now we are many. Now we, just on Guantánamo alone, are over 600 lawyers, most from major firms of every political stripe. These lawyers have an understanding of what is at stake: liberty itself. This struggle — this struggle will be seen as one of the great chapters in the legal and political history of the United States.

Today, war, torture, disappearances, murder surround us like plagues. Most in this country go on their way oblivious. Some don’t want to know and are like ostriches. Some want to justify it all. Some want to make compromises. But be warned: We are at a tipping point, a tipping point into lawlessness and medievalism. We have our work to do. For each of us, the time for talking is long, long over. This is no time for compromise, no time for political calculation. As Howard Zinn admonishes us, it is the job of thinking people not to be on the side of the executioners. The Puffin/Nation Prize reminds us all that the job for each of us is not to be on the side of the executioners. Thank you all.

AMY GOODMAN: The pioneering radical attorney Michael Ratner, speaking in 2007, when he was awarded the Puffin/Nation Prize for Creative Citizenship for his work heading up the Center for Constitutional Rights. Michael Ratner died in 2016, but his memoir, Moving the Bar: My Life as a Radical Lawyer, has just been published by OR Books.

We’re joined right now by three guests who knew Michael well. Vince Warren is the executive director of the Center for Constitutional Rights. Lizzy Ratner is the niece of the late Michael Ratner and a senior editor at The Nation magazine. And Baher Azmy is legal director of the Center for Constitutional Rights.

Baher, I wanted to begin with you. If you can talk about Guantánamo? Because this week, we’ve got a federal court hearing the case of Guantánamo. You write, Michael “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.” Since then, there has been President Obama, there’s been President Trump and now President Biden. But Guantánamo remains open, from 779 prisoners to, at this point, 39 prisoners. But it remains open. Can you talk about both Guantánamo and Michael Ratner’s legacy in trying to get it shut down?

BAHER AZMY: Thank you, Amy. It’s stirring to hear Michael’s words so clearly.

I think he saw, from the very beginning, what everyone else perceived possibly as a necessary compromise. But what he saw is the possibility of creating a prison outside the law that was a marker of lawlessness, and therefore authoritarianism, that would single out, in this case, the most recent enemy — Muslims — not unlike what he saw 10 years before with the demonization and exclusion of Black Haitian refugees. And what he saw is the connection between militarism and war, and domestic forms of authoritarianism and repression.

And that was a key to his intervention in Guantánamo, because bad things happen in dark places, not only bad things to the human beings locked up there, whose families are clamoring for understanding about what happened to them, but bad things happen to our institutions, our democratic institutions, through the arrogation of massive executive power, the dismissal of oversight by courts and the public. And so, that intervention was critical to open up Guantánamo and expose the lies, torture and incompetence that undergirded that project.

And I think — excuse me — one thing he also saw, and that we all recognize now, is the continuity of Guantánamo in the American imperial project. Of course, it was taken in 1908 as part of an imperial project in the Spanish-American War and kept as a military base to undertake military-style missions. And initially we talked about Guantánamo as exceptional, but, as you note, it’s here 20 years later. And I think given the way in which we’ve solidified borders, militarized domestic police forces, and all sorts of entailments from the post-9/11 world, Guantánamo isn’t particularly exceptional. Fighting against it is critical. But fighting against it, recognizing it’s at the sort of core of American forms of repression, is a key understanding that I think he knew well.

AMY GOODMAN: I wanted to bring Lizzy Ratner into the conversation, editor at The Nation magazine, the niece of Michael Ratner. Let’s talk about this latest — there’s this possibility, at least, NBC is reporting, of putting Haitians, refugees, asylum seekers, once again in Guantánamo. And let’s be clear, this is, originally, Guantánamo, the idea of putting them outside the reach of U.S. law. But if you can talk about back in the 1990s, when Haitian refugees fleeing a coup in Haiti are then put by Bush at Guantánamo, up to 12,000 people, and Michael’s role in trying to shut that down?

LIZZY RATNER: Well, first, Amy, thank you so much for having me on. And thank you for having all of us on to talk about Michael. It is always wonderful to talk about him, his work and his legacy.

And the history of Guantánamo and the Haitian history of Guantánamo is crucially important to understanding what we’re seeing now both still with the sort of detention of detainees there, of Muslim detainees from the so-called war on terror, and then also what we’re seeing now with Haitian refugees being sent back to Haiti. So, it’s a crucial moment to understand.

As you pointed out, in 1991, there was a U.S.-backed coup — that’s important to say — when the leftist leader of Haiti was kicked out of the country. And there was horrible, horrible, horrible oppression in Haiti. So, many Haitians, who were working people, average, everyday people, people of the left, fled in desperation. They were being attacked. And the United States, which had for years backed dictators in Haiti, said, “We don’t want Haitians coming here. We don’t want to take these refugees of the coup that we backed. So we’re going to prevent them from arriving in the United States.”

And this is sort of a key part of the law to understand. If someone arrives in the United States, they have a right to make an asylum claim. And the United States has to keep them here while they entertain that claim. So, how do you prevent people from making legitimate asylum claims? You prevent them from coming to the United States.

And so, what the United States did at the time, under Bush initially and then under Clinton, was that they rounded up Haitians, who were coming to the United States on small boats on the high seas — they had the Coast Guard pick them up — and they took them to Guantánamo. And they said, “This isn’t really the United States, so you don’t have actual rights here.” And then they processed people on Guantánamo to determine whether or not they had a credible fear of persecution, which is the standard for asylum in the United States. Anyone they found not to have a credible fear — and there’s probably a lot of debate about how well they made those judgments — but anybody who did not have a credible fear, they sent back to Haiti.

But they warehoused many people on Guantánamo while they were trying to determine if they had a credible fear. And — this is crucial — they forcibly tested people who had a credible fear, who could have made legitimate asylum claims — they forcibly tested them for HIV. And when they found that several people had HIV, they refused to let them into the United States, despite the fact that people would have had credible claims to asylum, they could have gotten asylum here, they could have begun an asylum case. And that’s because there’s horrible bigotry and racism against Haitians and against people with HIV and AIDS. And so, rather than bringing people to the United States, they kept them on [Guantánamo], because, they said, “Well, at least we’re not sending them back to Haiti.” So they kept Haitians on this — you know, in this prison camp, the world’s first HIV detention center, prison camp — a plague colony. We created it in the United States. And they kept several hundred Haitians there for well over a year.

And Michael, with the lawyer Harold Koh at Yale Law School and a whole bunch of law students at Yale, said, “This is outrageous. The United States is sort of trying to play footsie with the law. It’s saying that people on Guantánamo — that Guantánamo isn’t part of the United States, and therefore the U.S. law doesn’t extend to Guantánamo, the protections of U.S. law don’t exist there.” And so, he was fighting at the most basic level to get people out of horrible, horrible conditions, and then also to say that the United States couldn’t create this kind of sinkhole in which it could do whatever it wants, dispense with the law and just kind of, you know, play all kinds of illegal games.

And so, I think that moment is really crucial to understanding two things — and then I’ll stop talking. But I think it’s crucial to understanding both the later work that Michael and the CCR did on Guantánamo with regard to detainees in the so-called war on terror, and it’s really crucial to understanding what’s happening now with Title 42. The United States is once again seeing people from Haiti who could make asylum claims, and they’re saying, “Uh-uh-uh, we don’t want you to come in. We want to circumvent this whole process, and we’re going to just send you back, or possibly send you to Guantánamo.”

AMY GOODMAN: Vince Warren, if you can talk more about this and this trajectory from the early '90s to what we're seeing today? You started as an Ella Baker fellow at Center for Constitutional Rights. You’re now the executive director of CCR and worked with Michael for decades.

VINCENT WARREN: Yes. Thank you so much for having me, Amy, and it’s wonderful to be on with Baher and Lizzy.

And, you know, picking up on what Lizzy was talking about, Michael — people might misperceive what Michael is about by just focusing on the specter of Guantánamo. So, yes, Michael did decades of work on that particular institution and in that legal — the context of preventing the legal black hole. But people should remember that Guantánamo has become iconic, largely — as a negative icon, largely because of Michael’s work. But what it actually really represents is, number one, that we now have seven presidents, since that time — six or seven presidents, that have used Guantánamo as an offshore prison, where they claim that the law doesn’t apply, to dump all of the people that are causing problems in terms of how they are working the question of border security or national security.

And so, what Michael was able to do, even back in the '90s, when a lot of folks were like, “Well, I don't see what the big deal is,” A, or, B, “I see what the big deal is, but how the heck would you challenge that legally? Doesn’t the government have a right to keep us safe from people that have HIV by putting them in Guantánamo?” Michael saw that conceding the legality of a blackhole structure in the United States would turn into something like Guantánamo, that there would be other people that would be put there. In fact, you know, I think history has shown, if you look at some of the FBI documents that are emerging now, that folks on the left, radicals, people that want a greater society, folks like myself, there were plans to put us and people like us in these types of camps. So Michael was really pushing the framework that if we allow the government to create a law-free zone, it will create a legality around clearly illegal activity.

The other thing that I would want to point out, just to draw it together, is the Haitian HIV situation, the Guantánamo detainees after 9/11 and the proposal to situate refugees and migrants in Guantánamo today by the Biden administration all share a mythology. And the mythology is one of a great and consuming irrational fear on the part of the United States citizenry about feeling safe.

So, in the 1990s, HIV was the thing that made people lose their minds in terms of fear, even though they didn’t understand the disease. I mean, when you read the court papers, you know, Michael and Harold had to explain to the government and to the court that you couldn’t catch HIV by talking to people. Yet and still, there was hysteria around the question of HIV and what it was going to do.

In the context of 9/11, the hysteria was around terrorism. Every Brown, Black, Muslim, South Asian, Arab person, none of those people but with a turban, represented an irrational fear in the United States, and we wanted to keep those people out in any way possible.

And now, with respect to what’s happening at the southern border and, you know, in terms of our work at the Center for Constitutional Rights and the ALCU’s work around asylum seeking, in the Trump administration, the irrational fear was overrunning the border. In the Biden administration, the irrational fear is COVID.

So, in each one of these contexts, it’s fueled by — although not really in response to, it’s fueled by an overarching hysteria that we have in the United States that makes people want to side with incarceration and dehumanization in order to keep themselves feeling safe.