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irregular times logoOn Freedom, the Rule of Law, and Guantanamo Bay: A Conversation with Michael Ratner

Over the turn to the new year, we kept our eye on the political ball by reading Guantanamo, a fascinating book that cuts to the heart of the current crisis in American identity: Can the rule of law be maintained in a time when the primary source of power in politics is fear?

Written by Michael Ratner, president of Center for Constitutional Rights, and Ellen Ray, director of the Institute for Media Analysis, Guantanamo makes its case plainly and clearly - by referencing the foundations of American law. There's no Michael Moore hype to this book, no stagey devices, and no hyperbole. It's just the facts, but in the case of what's happening in the American prisons at Guantanamo Bay, the facts themselves are so riveting that there is no need for embelishment.

We got the chance to talk with Michael Ratner just two days before the second inauguration of George W. Bush as the President of the United States. His insights build an apt image of America at an historical turning away from the path of freedom through the rule of law, onto a new path forged in the pursuit of security regardless of the law.

Michael Ratner is in a good position to comment on this moment of divergence. He has been at the heart of the effort to return the American federal government to accountability under the law, making the case for the authority of international and domestic law in Guantanamo Bay as a co-counsel for Guantanamo detainees before the United States Supreme Court.

The transcript of our conversation with him is provided below.


Your new book, written with Ellen Ray, is entitled Guantanamo: What the World Should Know. In your opinion, why should the world have the right to know what is going on at Guantanamo Bay? It's a military base, after all. Also, why should Americans care about the fate of the non-American prisoners held there. Aren't they all just a bunch of terrorists?

I think both questions are really good. Let's go to the first one. What the U.S. set up after 9-11 at Guantanamo, which is a military base, was what I would call a world-wide place for an interrogation camp. It's essentially an interrogation camp, and as we have later realized, it has also become a torture camp.

What they did was pick people up from all over the world, particularly in the beginning from Afghanistan and from Pakistan, and some of those people were picked up on the battlefield, some were picked up because of bribes, some were picked up because of disputes. Some may have been Taliban. Some may have been related to Al-Quaida. We don't know because they never had trials or hearings or anything else, but they picked them up and took them to a place, Guantanamo Naval Station in Guantanamo Bay, Cuba, which is owned entirely by the United States. It's on a lease, but the US has complete control of the place, and they decided that that was a place where they could take them, and do whatever they wanted to them, that no law applied, they didn't have to give them any hearings, and no court could say anything about what was going on there.

So, the first thing you think when you hear that is: A place outside the law? A place where you can do whatever you want to people? A place a where you can disappear people? Does this sound like America, or does this sound like Chile during the Pinochet regime, when they disappeared thousands, or Argentina during the dirty war? So, when I looked at that, it caused tremendous concern to me early on, when I heard that they had announced that they were going to take people to a place where there was no law and they could do whatever they wanted.

The second part of your question, which is why should Americans care about it, well, to get people there, you have to go through a huge number of hoops. You first have to decide, particularly with people picked up in a war zone, that the Geneva Conventions do not apply.

Once you do that, you're saying that we're not going to apply the Geneva Conventions, and there was a huge objection to that by Colin Powell, the Secretary of State. He said, if we don't apply the Geneva Conventions, how are we going to protect American troops overseas? American troops, when they're captured, we want to insist that other governments apply Geneva. If we don't apply Geneva, what will happen? In other words, do unto others as you want done unto you.

He also said that there's a hundred year moral history and legal history of the United States, applying first the Hague Conventions that protected prisoners, and then Geneva. We have to be able to do that in order to uphold any legal or moral authority we might have in the world. So, one reason Americans ought to care, apart from what we're doing to human beings, is our own interest in protecting our own soldiers.

A second important point is that, initially, when I first took the case challenging the detentions of people at Guantanamo Bay, I actually believed what Rumsfeld said. He said the prisoners were "the worst of the worst." I thought, well, maybe there really are some really bad people that they've taken down there. It made me nervous, but I felt that the rights that were involved, the right to have a hearing before you're detained indefinitely for the rest of your life, was something pretty fundamental.

It turns out that, as we've litigated these cases and gone along, these are not the worst of the worst. In fact, we have now successfully gotten the release of a couple of hundred people. There are still over 500 there. They were abused. They were tortured. The fact is, it's now admitted by the United States that the majority, the high majority of people, were not terrorists, had nothing to do with terror, and probably should not have been there to begin with.

We're also talking about a system that is arbitrary. When we won the case in the Supreme Court in June of this year, 2004, the Supreme Court said that executive detentions, the idea that the President can simply detain people if he wants to detain someone, and they never go into a court, and the United States or the Bush Administration never has to justify why a person goes to court, is anathema to the American people. It's anathema to the legal system. It means that the President can simply detain anyone - non-citizens in this case, but there were citizens as well - and pick them up anywhere in the world and hold them without a court.

The Court went back to the year 1215 of the Magna Carta, and it said that since King John at Runnymede signed the Magna Carta, which guaranteed that every single person deserves some kind of a trial before they are put in jail, executive detentions have been outlawed. So, that's all that Guantanamo is. That's what it represents. It represents a real departure by our country from the fundamental moral and legal values that we have assumed are part of what made us a great democracy.

So, you're talking about abuse that's going on at Guantanamo Bay. You use the word "torture". But, the Bush Administration says that the prisoners at Guantanamo Bay are not subject to the Geneva Conventions because they are unlawful combatants. So, how can you continue to claim that the prisoners at Guantanamo Bay are protected by the Geneva Conventions?

I think this is a good question. It's the heart of what goes on here.

The first thing I want to say is that whether or not they're protected by Geneva, every human being in the world is protected against what we call cruel, inhuman and degrading treatment and torture. Torture is obviously the worst. Cruel, inhuman and degrading treatment is slightly less pain and less severe pain. But, every human being is protected against those kinds of abuses, under the Convention Against Torture, which is a treaty that the United States has signed, and actually makes it a serious criminal violation to torture people. So, even if Geneva didn't apply, the Convention Against Torture would apply, as would other kinds of laws that prohibit this kind of behavior.

Of course, there has been much dispute about it, but even the President, at the end, has admitted that the Geneva Convention applied to anyone who was picked up who was in the Taliban. There were some people down there from the Taliban. He said that, but then they denied any part of Geneva that applied to them. Geneva would say that they were prisoners of war, but the President said that even though Geneva applied, I am ruling that they are not prisoners of war. You can't just do that.

So, Geneva is important in the respect that, if these people are prisoners of war, they have to be treated in a certain way. But, no matter what, whether Geneva applies, you can't torture people. That's the bottom line in this world. Unfortunately, the evidence has been revealed, hour after hour, day after day, month after month, by the Red Cross and others, that we, the United States, the Bush Administration, in my name and in other people's names, is torturing people.

So, the government, the Bush Administration, George W. Bush himself has admitted to what amounts to an illegal activity. What's preventing him and other people in the Bush Administration from being held accountable, legally?

Well, the evidence right now reminds me of the story of The Emperor's New Clothes. The emperor is nude, but he thinks that he has on the most beautiful suit in the world. I think that the rest of the world knows very well that the highest levels of our administration have authorized a major departure from the Geneva Conventions, which is a war crime itself, and have authorized cruel, inhuman and degrading treatment and torture, which are war crimes as well. We all know that.

The series of memos that have come out, written by Alberto Gonzales, the President's counsel, who amazingly is about to become the Attorney General of the United States, written by him as well as acceded to by him, also had definitions of torture that essentially authorized torture, and says that the President, in the name of national security, could carry out torture. There's memo after memo coming out of the Justice Department. There's memos handwritten by Rumsfeld. There's memos where he says that you can use dogs, that you can strip people, all kinds of behavior. So, I think that the evidence is actually very clear as to what the U.S. is doing.

The question that you asked, how come they're not accountable, well, it's a really important question. Slowly, over the last few months, there's a growing movement in the country, particularly among human rights organizations, newspapers, military people, who say that they must be held accountable. The government says now that we're only going to hold accountable seven men in Iraq who did the abuses we saw in those famous April 28, 2004 photographs, but there is actually evidence in these memos that they were certainly authorized, not to do those specific types of abuse and torture, but to do other types, from using dogs to breaking people's will.

The accountability mechanisms are very few in our country. On is that there are congressional investigations. Those have gone nowhere. Senator John Warner was head of the committee. He's a Republican. He wanted to go somewhere. He apparently got told by the Republicans that, if you want to run for office again, you had better not go far with this investigation.

So, the Republicans control both houses of our Congress. They're not about to bring any serious investigation that goes up the chain of command.

There's been nine investigations so far. We've gotten the results of at least five of those. None of them, none of them go up the chain of command in any real way. All of them try and limit this to the seven bad guys, or maybe twenty bad guys if you throw in Afghanistan and Guantanamo. None of them go up to Donald Rumsfeld, our Secretary of Defense. None of them go up to General Sanchez, the general in charge of Iraq. None of them, or very few of them, say anything about the colonel who was in charge of the military intelligence brigade. So, the investigations have gone nowhere.

Criminal cases, well, you can't bring criminal cases unless you're a prosecutor in the United States. So, in the United States, there's no way to bring a criminal case. What we did at the Center for Constitutional Rights is decide to go to Germany to bring a criminal case. Germany has a law where individuals and victims, and we represent a number of Guantanamo and Iraqi victims, are allowed to bring criminal cases, and the courts have to take them seriously. They're not just like writing a letter to the prosecutor. So, we brought those cases November 30, December 1, 2004. They're still pending in Germany. We're asking for an investigation in Germany, of Donald Rumsfeld and on down the line, including General Sanchez. We're hoping that case will put pressure on United States officials, or some officials somewhere, to begin some serious investigation of what's happened with torture.

The world knows about it, and the fact that the United States is doing it is not only harmful to the individuals who are tortured, and obviously extremely harmful, but in my view, it's taken the rule of law, the idea of authority under law, the prohibition against torture, it's taken us back hundreds of years. We might as well be in the Inquisition now, because the most powerful country on Earth, that should be upholding the law, carries out torture. We're talking about a really serious situation.

In terms of that German case, one of the important things is to get support for that, and at the Center's web site (Center for Constitutional Rights) you can send a letter to the German prosecutor urging him to investigate U.S. officials.

President Bush justifies these detentions and the extremely harsh treatment of prisoners by saying that we're at war. I'm a little confused by this, because there's been no formal declaration of war, we haven't been given any clear criteria for knowing when the war will be over, and we haven't even gotten any clear definition from the the government of who the enemy is, other than simply calling them "the evildoers" or "the terrorists". Given this extreme ambiguity, what is the legal status of the war, and is it legitimate?

Well, I want to say that whether there's a war or no war, legal or illegal, you can never torture people. Never. Never. Never. It's just not permitted. You can never abuse people. Never. Never. Never. It's not permitted. So, in that sense, from a human rights point of view, you just don't torture.

What is this war? That's a serious question, because the Bush Administration now asserts that it can hold people until the end of the war on terror, and hold them without any kind of trial. When does that end? Well, if you listen to Donald Rumsfeld, the end of the war on terror could take 50 years. That means that someone picked up who is 22 years old can be held in some prison at Guantanamo or in some other country that the U.S. has built a prison in, whether Afghanistan or Iraq, and can be held until their seventies or their eighties or forever. If you really think about it, the war on terror, in some way, will never be over as long as there is one person in the world who wants to commit acts of terror.

The question is a good one because the administration has simply taken this rather loose definition, and called it a war on terror. It makes up when it began, it makes up when it ends, and it makes up how it can hold people pursuant to that war on terror.

The fact is, of course, that you're right. The only declarations of war that there have been, well, there have been two that are not declarations of war, but they're the equivalent in terms of many legal issues, are the authority to go to war with Afghanistan and the authority to go to war with Iraq. There is no general war on terror that has been authorized by Congress.

The wars in Afghanistan and Iraq are supposed to have a beginning and an end. In fact, when one of our cases went to the Supreme Court, the enemy combatant case with Mr. Yasser Hamdi, the Court was very clear that he could only be held until the end of the war in Afghanistan. He could not be held indefinitely while some war on terror is going on.

Because wars generally give administrations more power, they allow you to hold people who are soldiers, captured enemies until the end of the war, so the Administration thinks, oh, well, we'll just call it a war. Call it a war on terror and we can hold people forever.

Of course I don't think that's the case. I don't think that the courts, even though they're very moderate, will uphold that. We've been winning pretty steadily in the courts, which is a real relief. So, I'm convinced that we're inching our way up the hill, but inching is the right way to talk about it.

So we're inching our way up the hill. What are your impressions of the confirmation hearings of Alberto Gonzales?

It was the most disgusting moment I've lived through in a number of years. I was appalled by it. It was a shock.

First, it's a shock that he was nominated. Second, it's a shock that he wrote what he did, I mean, there were two major memos that he talked about. One was the January 25, 2002 memo where he says that Geneva should not apply to the Taliban or Al Quaida, and he says that for a specific reason. He says that it shouldn't apply because there are restrictions upon interrogation that say that people have to be treated humanely, and because we have a criminal law in the United States for anyone that violates the Geneva Conventions, he says, if we apply Geneva, some of us may get prosecuted criminally, and this is what's left unsaid, because we're going to be treating people inhumanely. That's what this first memo is about. It's about avoiding Geneva so that you don't have criminal prosecutions for treating people inhumanely. In January 2002, they're already thinking and doing this kind of stuff.

The next memo, of course, is the one that they talk about the most. It's from August, 2002. That's the famous memo where Gonzales asks for a memo to protect the CIA and what it's doing with regard to torture. That's the one where it has these two infamous statements in it: One, that the President can torture in the name of national security, which to me is like Pinochet's argument in Chile, that the national security of Chile depended upon me killing and torturing and up to four thousand victims; and the second one is to redefine torture so that it doesn't mean what it actually says in our law books and in our statutes, but actually only means only the most severe pain that is the equivalent of organ failure, like heart failure and liver failure or something like that, and it doesn't include, in their definition, the growling dog biting your leg, which of course, everybody knows would be considered torture.

So there's that memo, which he then testifies at the hearing that he agreed with the conclusions of that memo with regards to the narrow definition of torture, and in answer to the question of whether the President can in the name of national security carry out torture, he says, well, that's academic, the President says that he's not going to torture. Then he gets asked the one or two good questions that were asked of him. One of them was: What if a foreign country said that they could torture people? Would that be okay? Then, Gonzales gives this answer in which he says that it would depend upon the local laws of that country. Well, that's completely ridiculous and absurd, and either he's an ignorant fool or he just purposefully believes that there's no international law or treaty against torture. Of course, there is.

So, his answers were terrible. Most of the senators were disaster, just praising the guy, hugging him, essentially saying, "I'm going to vote for you, but here's some questions I have." This confirmation hearing, to me, is one of the shames of America.

I was surprised to see that John Kerry did not even bring up the illegal detentions and torture as a campaign issue last year, in 2004. What is there about these abuses at Guantanamo Bay and elsewhere that makes even the Democratic Party so reluctant to discuss them?

Well, you know, the Democratic Party went into that campaign, and has taken this position all along, that they don't want to seem weak in the national security issues and the war on terror. As a result, certainly the majority, by a longshot, went along with the war in Iraq when it started. They were very hesitant, and the worst answer that Kerry gave, the one I thought lost him the election, was when he was asked, "Knowing what you know now, Mr. Kerry, that there were no weapons of mass destruction, would you have still voted for authorization to attack Iraq?" And he says yes!

Well, to me that's the end of the election. Why don't you just vote for the guy who did it instead of the guy who is just his shadow?

On the torture issue, it's really interesting to me, because, you're right, it didn't come up in the campaign once, not even once. It's gotten no traction in the Democrats. Kennedy was fairly strong at the hearings, but other than him it's been really weak. Schumer, our New York State senator, initially said he was going to support Gonzales. Now he's asking a few questions, but I still don't think it's all in on him or Mrs. Clinton, as to what they're planning to do with Mr. Gonzales.

Why? I think, for one, it's national security. They don't want to look weak on national security. Second, I think that a lot of the people in the United States, and it's really sad to say this, as long as these things are going on against non-citizens that are not them, and the people are Muslims, the people say well, they're probably guilty of something. Why else would the government be doing this unless they did something wrong? And, Americans add into that that they want to be safe, and what is the best way to make us safe? As Gonzales said, this is a war of information. How do you get information? You torture people. I think that there's some sort of consensus in this country, among both Republicans and Democrats, that the the gloves are off, and not just that the gloves are off, but that the President can go beyond the law. People are certainly willing not to challenge the President publicly.

It seems that we learn disturbing new details about the detentions of foreigners by the United States every few weeks, with new memos coming out through the Freedom of Information Act. What resources would you recommend to Americans who do care about this, and want to keep track of what's happening at Guantanamo Bay and other American-run prisons?

First of all, there's a few web sites out there. There's the Center for Constitutional Rights, that has a lot on Guantanamo, a lot on the torture memos, a lot on the German prosecutions, a huge amount on this whole set of issues that we're doing. So, that's an important place to get information.

There's Human Rights Watch, which has a very good web site, and Human Rights First. They give you really good information, and they give you good things to do. So, for example, the Center has a letter that you can send to your member of Congress or senator to oppose Gonzales.

It's a very important thing to do. We should not get up in five years and say, "What did I do to stop this? What did I do to protest?" Everybody should do something, whether it's sending a letter to an editor or making a meeting with your member of Congress about the upcoming vote on Gonzales's confirmation. Whatever it is, people should do something. People should stand for something. The United States used to stand for some kind of moral and legal authority. It really doesn't any more. It stands for the opposite.


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