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Attack on Michael Ratner

We knew and worked closely with the great human rights attorney Michael Ratner for nearly a century, combined. Samuel Moyn’s recent attack on him in the New York Review of Books for winning habeas corpus rights for Muslim prisoners in Guantánamo is totally misplaced and perverse. The article is adapted by the author from his just published book Humane: How theUnited States Abandoned Peace and Reinvented War.

Moyn claims that, in winning habeas corpus for people detained at Guantanamo, “no one, perhaps, has done more” than Michael Ratner “to enable a novel, sanitized version of permanent war.” He goes on to explain: “By legalizing the manner of the conflict, Ratner paradoxically laundered the inhumanity from what began as a brutal enterprise by helping recodify a war that thus became, endless, legal, and humane.” According to Moyn, Michael legitimized endless war.

Huh?

How does defending habeas corpus for Guantánamo prisoners, who had been imprisoned with no charges, no lawyer, and no prospect of a trial, make war legal or more humane?

Since when have so-called humanitarian interventions by the United States and its proxies ceased to be brutal, as Moyn claims? And how does defending habeas corpus for Guantánamo prisoners, who had been imprisoned with no charges, no lawyer, and no prospect of a trial, make war legal or more humane?

Habeas corpus protects against unlawful and indefinite imprisonment. An ancient writ, inscribed in the Magna Carta (1215), it is guaranteed by the U.S. Constitution. The Latin translation of habeas corpus is "show me the body." Historically, habeas corpus has been an important instrument for safeguarding individual freedom against arbitrary executive power.

In his chapter in The United States and Torture: Interrogation, Incarceration, and Abuse, edited by law professor emerita and former president of the National Lawyers Guild Marjorie Cohn, Michael wrote that “preventive detention is a line that should never be crossed. A central aspect of human liberty that has taken centuries to win is that no person shall be imprisoned unless he or she is charged and tried.” He went on to say that “If you can take away those rights and simply grab someone by the scruff of the neck and throw them into some offshore penal colony because they are non-citizen Muslims [a common practice within the U.S., as well, after 9/11], those deprivations of rights will be employed against all…That is the power of a police state, not a democracy.”

For Michael, defending habeas corpus was a related, if still a separate issue from challenging the legality of U.S. imperialist wars. Moyn faults Michael for not suing to stop the Bush-Cheney administration’s attacks on Afghanistan and Iraq in order to bolster his argument that, in his defense of habeas corpus, Michael promoted forever wars. This is an outrageous claim.

Michael’s passionate opposition to imperialist U.S. wars goes back to Vietnam. In the 1980s he attempted, albeit unsuccessfully, to challenge U.S. wars against the revolutionary governments of El Salvador and Nicaragua. In a 2008 Indypendent interview, Michael made clear his and the

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Center for Constitutional Rights’ (CCR) opposition to war: “We have been involved in cases regarding the roundups, warrantless wiretapping and torture. We are firmly against the war in Iraq, and [opposed] the war against Iraq three months before it started. It is a made-up war, an illegal war. We are anxious to [litigate] the Blackwater case because it will deal with the war. The war is hard to get at legally.” For this reason he attacked it from as many angles as possible, while always insisting on the outrageousness of wars.

Moyn’s animus toward Michael is transparent. Why else would he cleverly choose to use snarky words like “desperate,” “apocalyptic,” “glum,” and “gloomy” to characterize Michael’s countenance or legal challenges? Why does he describe William Kunstler, a colleague and friend of Michael’s, as someone who defended “unpopular agitators, from the rioters at the Democratic Convention in Chicago in 1968, to draft card burners the same year, to Black Panthers and Weathermen later?” (ital. ours) Does informing his readers that Michael’s brother is a “real estate magnate” and his sister, who is progressive, a “Fox News commentator” have any relevance whatsoever to his wrongheaded thesis?

Given the venue of Moyn’s article, it seems odd that the title of Michael Ratner’s recently published memoir, which Moyn mentions in passing, is omitted. “Moving the Bar: My Life as a Radical Lawyer” has been out since early this year. The absence of the title is, at best, sloppy, at worst intentional. Michael’s memoir movingly exemplifies the four principles that guided his life and career as a radical lawyer. They were taped to the wall next to his desk at the Center for Constitutional Rights:

  • Do not refuse to take a case because it has long odds of winning in court.
  • Use cases to publicize a radical critique of U.S. policy and to promote revolutionary transformation.
  • Combine legal work with political advocacy.
  • Love people. 

As we learned from a critique in Chronicle of Higher Education, Moyn’s approach to Michael Ratner’s historically significant work is his modus operandi. The author of the article, Jon Baskin, describes Moyn’s approach as a “reliable recipe for scholarly bounty hunting,” adding that his “deflationary approach focused less on developing an argument than on letting the air out of others’.” The sub header of Baskin’s critique ends with the question “But what’s he for?”

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As Katherine Franke, Professor of Law at Columbia University, commented upon reading Moyn’s piece: “Tragically, we have come to expect this kind of facile analysis from Professor Moyn. He has distinguished himself as a scholar who privileges cleverness over rigor, and who has no appreciation for what it means to work under conditions of great complexity, as did Michael.”

Nina Felshin and Michael Steven Smith