Staying Civil After 9/11

When the order came down in November 2001 giving the U.S. military the power to pick up and detain suspected terrorists anywhere in the world, Michael Ratner, president of the Center for Constitutional Rights (CCR), quickly decided he wanted his organization to represent the first detainees. Convincing the rest of the organization’s leadership, however, was a tough sell.

The Center was born in 1966 out of the Civil Rights movement. Ratner arrived in 1971, not so much to protect legal principles such as free speech, but to defend the people he agreed with and the movements he believed in. After 9/11, however, people labeled “the worst of the worst” by the federal government were being denied the most basic rights guaranteed by the U.S. Constitution. “The principle that was being ripped away from people was so fundamental that we had to say, even if they might be the worst of the worst, we had to take those cases on because we didn’t believe you could take those people and pick them up and detain them forever and deny habeas corpus,” Ratner says. “That was just too big a leap from anything we had seen in this country before.”

First there was debate in the office. People were worried about hate mail and funding and whether they wanted to represent the people responsible for 9/11, if that’s who these detainees were. But the organization ultimately sided with Ratner. During the next six years, so did hundreds of lawyers from different practice areas, who stepped up to represent the detainees at Guantánamo. “It’s not that we’ve moved to the center—the values we’re defending are centrist fundamental values—but it’s because parts of the government have gone so far in denying rights that we feel were imbedded in our Constitution and law, that we pulled a huge sector of the lawyer population to help us defend those rights,” Ratner says.

In the wake of 9/11, the practice of human rights law has changed, starting with the CCR and the first Guantánamo cases but hardly ending there. New York’s most important civil rights lawyers and organizations—including Arthur Eisenberg of the New York Civil Liberties Union and Manuel Vargas at the state’s Immigrant Defense Project—have had to step back from more progressive agendas and defend the core principles of our society.

Michael Ratner
and the Center for Constitutional Rights

Even after taking the Guantánamo cases, the Center still faced a major obstacle: Detainee names were secret, and those prisoners were cut off from any communication with the outside world. But in December 2001, the name of David Hicks, an Australian, appeared in the press. The Center’s resulting habeas action, filed in February 2002 on behalf of Hicks and a few Englishmen, would be the first Guantánamo case and still its most significant. With Ratner as one of the lead attorneys, Rasul v. Bush went to the U.S. Supreme Court, which ruled, in June 2004, that the detainees had a right to habeas corpus.

“We immediately went back to Washington, D.C., federal court and got the right to start seeing our clients,” Ratner says. The Center began building a list of names—clients would let them know who else was being held—and recruiting lawyers to represent them. Initially, in 2002, no human rights organization was willing to work with the Center. By 2004, they were recruiting hundreds of lawyers out of commercial practices, most of whom had no criminal law experience.

Seeing clients was still a challenge. Lawyers had to wait for security clearances, and guards would try to sow discord—telling prisoners, for example, that their lawyers were working for the government. Worse, Congress responded to Rasul with the Detainee Treatment Act, which attempted to strip habeas from the people at Guantánamo. “Because many would argue Rasul was won on a statutory basis, not a constitutional basis, Congress said, ‘OK, we’ll just change the statute.'” Hamdan v. Rumsfeld, which the Center was not involved in, challenged that statute before the U.S. Supreme Court in 2006 and won.

Congress, undeterred, responded with the Military Commissions Act, which set up an alternative procedure outside U.S. courts in which detainees would be tried. They also tried to ban habeas again.

Meanwhile, 11 habeas petitions the Center filed on behalf of more than 70 detainees were consolidated into two cases—Al Odah v. United States and Boumediene v. Bush—which worked their way up to the highest court. Ratner was no longer lead counsel on those cases, but, behind the scenes, he was leading the Center’s larger Guantánamo litigation strategy. In December 2007, both cases were argued before the Supreme Court, and in June 2008, in a 5-4 decision, the court ruled that the provision of the Military Commissions Act that denied habeas corpus was unconstitutional. “The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” wrote Justice Anthony M. Kennedy.

Six years after Ratner filed the first habeas petition on behalf of a Guantánamo detainee, the 270 remaining prisoners may finally see their day in court.

Habeas corpus wasn’t the only issue to come out of Ratner’s Guantánamo cases. In 1980, the Center handled a Supreme Court case that found torture illegal and the torturer culpable. “We sued dictators from all over the world who came into the United States,” Ratner says. “And then you get to 9/11.

“At first, when our clients were at Guantánamo, I was a little naïve,” Ratner says. “I didn’t really take in that they might be tortured or abused.” Before Rasul was decided, for example, the government released the English prisoners and in February 2004 Ratner flew to London to interview them. When his clients told him they’d been tortured, he was skeptical. “[Then] I come back and all of a sudden you have Abu Ghraib photos and the [former Secretary of Defense Donald] Rumsfeld technique,” he recalls, “and you realize that what my clients were telling me was exactly what the Rumsfeld techniques authorized: chaining to the floor, stripped of clothing, sexual humiliation, dogs. … So then you realize this is a massive torture program going on. Even though the U.S. is trying to say it’s a few bad apples, in fact, it goes right to the top. And that gets confirmed day by day, even more than I ever thought.”

At the same time that the Center was attempting to communicate with its alleged terrorist clients and their families, the government had been using a secret program to spy on American citizens who were believed to be in contact with alleged terrorists. Ratner became aware of the NSA warrantless wiretap program with the rest of the country when The New York Times exposed it in late 2005. It was particularly poignant for him. The first Supreme Court case he ever worked on was a brief that led to the 1972 finding, in United States v. U.S. District Court, that Richard Nixon couldn’t warrantlessly wiretap Americans.

The Center responded by suing the government in 2006 on its own behalf. That case is now pending—along with the cases of dozens of groups who did the same thing, including the American Civil Liberties Union.

Arthur Eisenberg and the
New York Civil Liberties Union

As a young man, Arthur Eisenberg was torn between law and history. He was a history graduate student at Columbia University—law degree in pocket—when he was involved in a protest against the bombing of Cambodia that shut down the university. An NYCLU staff person spoke at the rally, and afterwards Eisenberg asked if he could volunteer for the organization. His first cases were the Black Panther trials.

He never did finish that graduate history degree.

Eisenberg has been with the NYCLU for the past 35 years, its legal director for the last 20. He likes how, historically, the organization’s lawyers have been generalists, moving from one issue to the next. That’s been true for him, too.

He fought housing discrimination in St. Louis, the racial segregation of teachers in New York City schools, and a Long Island school board’s decision to ban nine books deemed “anti-American, anti-Christian, anti-[Semitic], and just plain filthy,” including Kurt Vonnegut’s Slaughterhouse-Five and Richard Wright’s Black Boy. He’s been involved in more than 20 cases before the U.S. Supreme Court, including voting rights cases in which he challenged the constitutionality of a state ban on write-in ballots and whether the New York City Board of Estimate’s electoral structure violated the one-person, one-vote doctrine. Voting rights cases became Eisenberg’s bread and butter—until after 9/11 when he found himself for the first time involved in a number of national security cases.

Like any historian, Eisenberg puts things in perspective, and, to him, a central issue at the heart of post-9/11 civil liberty controversies is the presidential assertion of unilateral executive authority. He first saw it in the case of Jose Padilla.

By the time Padilla’s lawyers contacted the NYCLU, Padilla—a U.S. citizen and alleged terrorist—had already been arrested at O’Hare Airport on a material witness subpoena, held for a month in a New York federal prison without being called to testify and then transferred to a military brig in South Carolina on an executive order from the president. The government said Padilla was an enemy combatant who had been plotting to detonate a radioactive bomb.

From that point on, Eisenberg, as the principal lawyer representing the NYCLU and ACLU, worked closely with Padilla’s lawyers. The first of many amicus briefs he wrote in the case insisted upon the supremacy of civilian over military authority and the obligation of the president to respect congressional limitations. When judge Michael Mukasey decided the court should hold a hearing to determine whether Padilla was an enemy combatant, he ordered that Padilla be allowed to meet with his lawyers to prepare. Instead, for about six weeks, the government kept him in solitary confinement.

Eventually an affidavit was submitted to the court from the Department of Defense saying Padilla’s lawyers could not meet with him because Padilla’s interrogators were trying to establish a relationship of “trust and dependency.” This happened before Abu Ghraib broke. Looking at the language, Eisenberg got a chill. He thought: “We know how you try to establish trust. How do you try to establish dependency?”

When Mukasey stood his ground, the government appealed. The case went all the way to the Supreme Court, then all the way back down again when the court ruled it a habeas matter that should have been filed in South Carolina. The case was working its way back up again when, Eisenberg remembers, “On the eve of the date when the government’s opposition to the cert petition was due, the government decides to move Padilla from the military facility to a civilian jail in Florida, and announces that it’s going to prosecute him for crimes in the state of Florida. And they drop any claim about threatening to detonate a radioactive bomb.”

Eisenberg thought the government’s backing down was an acknowledgement of their poor legal position. It had violated a fundamental constitutional principle, the supremacy of civilian authority over the military, which dates back to the Declaration of Independence as one of the grievances identified by the colonists against George III. “We have civilian courts,” Eisenberg says. “That’s how we punish bad actors in this country. We don’t throw them in military facilities and keep them in solitary confinement indefinitely, which was what the president was asserting authority to do.”

As the president continued to assert executive authority, Eisenberg continued to challenge it. He was co-counsel in Doe v. Gonzales, filed by the ACLU in response to the FBI’s use of National Security Letters, which compel entities like Internet providers and phone companies to produce customers’ private records secretly and without court supervision. A New York District Court judge found the NSL program unconstitutional in 2004. While the government’s appeal was pending in the Court of Appeals, Congress amended the law, and the appellate court sent the case back to the district court. There, in 2007, the court ruled that the amended law was unconstitutional. The case is on appeal again.

On the issue of warrantless wiretaps, the NYCLU stepped in where the CCR left off. Lawsuits like the CCR’s and ACLU’s were getting stuck on standing grounds: These groups suspected they were the subjects of surveillance but had no proof. “When the controversy with respect to the NSA wiretaps was first revealed,” Eisenberg says, “a reporter from The New York Times approached the administration and said, ‘This is quite controversial. Is this NSA program useful at all?’ And the spokesman for the administration says that it’s the basis for a prosecution they’re pursuing up in Albany.”

The NYCLU subsequently contacted the defense lawyers on that case, United States v. Aref, and asked the judge for permission to file a friend-of-the-court brief in support of a defense motion challenging the legality of the surveillance. But before the court could answer, the government filed a secret affidavit in response to the defense motion that the defense lawyers weren’t allowed to see. “And then the judge responds almost immediately with a decision denying the motion to dismiss the case, which the judge files as a secret opinion,” Eisenberg says.

So Eisenberg went to the appeals court seeking to compel Judge Thomas J. McAvoy to file his opinion publicly, arguing that the legitimacy of the court process depends on reasoned, open decision making.

The appeals court sent Eisenberg’s claim back to McAvoy, who didn’t respond until after the trial ended and the defendants were convicted. At that point he said the issue was moot. In July, the Court of Appeals held that, under the circumstances, the judge did not commit a legal error in filing the secret opinion. However, the court did observe that district courts should seal judicial documents “only in the rarest of circumstances” and that any sealing should be “no broader than necessary.”

Manny Vargas and the Immigrant Defense Project

Manny Vargas, the son of an immigrant from Colombia, grew up knowing the obstacles facing immigrants in this country, and he went to law school hoping to help defend their rights. “I didn’t have a particular interest in dealing with issues faced by immigrants who had had encounters with the criminal justice system,” he says. “Those issues came to my attention only after I started working at the Legal Aid Society in 1988.”

Vargas’ work changed after the U.S. Congress amended immigration law in 1996. Previously, when immigrants were placed in deportation proceedings based on past criminal conduct, they could apply to waive deportation. “There was a safety valve in immigration law,” Vargas says, “to account for those cases where an immigration judge was persuaded it wasn’t in the interest of the U.S. to deport that individual—because they lived here for a long time, they had citizen family members who depended on them or U.S. citizen employees who depended on them. Or the immigrant had served in the U.S. military. Factors like that could be considered before the government would go ahead and deport somebody.

“Unfortunately, Congress, in their zeal to tighten immigration laws in 1996, largely eliminated those safety valves,” Vargas says.

As a response to the new laws, The Immigrant Defense Project, sponsored by the New York State Defenders Association, was born in 1997. Vargas requested funds to start the project so it could work with the criminal defense community to ensure that immigrants accused of crimes knew their rights. “There’s a lot of pressure in the criminal justice system for people to plead guilty,” Vargas says. In many cases immigrants accused of crimes were being advised to plead guilty—without being advised that such a plea could lead to automatic deportation—and for the past 10 years Vargas has been working to make sure public defenders and courts inform immigrant residents of the consequences of their criminal proceedings.

Since 1996, and accelerated by 9/11, many immigrants have been detained and deported based on long-ago crimes. Even if the infractions weren’t deportable offenses at the time, immigrants don’t have protection from retroactive application of new laws. They don’t even have the right to counsel. “Immigrants and their families who don’t have money to pay for lawyers wind up having to go through this whole process without legal representation,” Vargas says. “Keep in mind here that we’re dealing with a population that often doesn’t speak English that well or isn’t familiar with the legal system in this country. The idea that this process is being afforded in a system where immigrants don’t have lawyers is frankly rather ludicrous.”

The project has tried to narrow what convictions warrant automatic deportation. Under immigration law, for example, anyone convicted of drug trafficking is subject to automatic deportation no matter the circumstances of the case. But the federal government has in many cases interpreted the term “drug trafficking” to include simple possession.

Vargas, watching these cases move through appellate courts, looked for one that would help the IDP challenge that interpretation—and he found it in Lopez v. Gonzales. After the immigrant petitioner’s pro bono lawyers filed a cert petition with the U.S. Supreme Court, Vargas contacted various criminal justice and immigrant rights organizations in order to submit a joint brief urging the court to hear the case. After cert was granted, he continued to coordinate briefings from legal organizations around the country and helped Lopez’s lawyers develop their arguments.

In 2006, the court ruled by an 8-1 vote that the federal government had been reading the deportation laws beyond what Congress intended. “As a result, thousands of immigrants have the right now to seek a waiver of deportation,” Vargas says. “It doesn’t mean that people can’t be placed in an immigration proceeding because of a drug offense, but it means that they have the right to present the whole picture—how long they’ve been here, what family they have here, what service they’ve done for this country—to an immigration judge before a deportation order is automatically entered.”

At the same time, the project has been helping immigrants develop legal arguments to get their cases reopened—particularly for those who say they pleaded guilty only because they’d been told they’d be able to return to their jobs and families once sentences were served. In a key case that went to the New York State Court of Appeals, an immigrant was able to get his guilty plea thrown out and his case reopened after it was found that his attorneys misguided him. He was tried, found innocent of felony charges and convicted of a minor misdemeanor offense.

“We still have a long way to go,” Vargas says. “Sadly, some of the laws have become that much more unforgiving.”

If the laws have become more unforgiving, Eisenberg believes that the courts still reflect the genius of our legal and political systems. Not only do they serve as a vehicle for protecting individual rights against the tyranny of the majority, they also bring about the public discourse that can be even more effective in defending a principle or moving a social agenda.

Take the ACLU’s work on torture. The organization has no big legal victories to speak of, except that, through Freedom of Information Act requests, it was able to obtain documents from Abu Ghraib. “Our seeking out of those and other torture documents had some significant influence on public awareness of the problem and marshaling of public opinion in the opposition to the use of torture,” Eisenberg says.

The same is true of Guantánamo cases. Out of 750 people at Guantánamo, Ratner says, 500 have been released. Litigation played a central role in that, even though no court ever released anyone. “What would have happened if no cases were brought or if the Supreme Court didn’t rule in our favor?” he asks. “We’d be sitting here with a completely closed box at Guantánamo, where the kind of abusive interrogation methods would be continuing. Now people have gotten out. They’ve written books and been unrelenting about what happened to them. It’s bringing wide public attention.”

Even so, Ratner says, the U.S. has a long way to go toward repairing the damage done to civil rights. “I consider this to be a huge setback: that the United States, after a major terror attack, immediately reverted to what states that we have normally condemned use as normal practice,” he says.

“It surprised me,” he adds, “that democracy and the protection of rights was such a thin veneer.”