Michael Ratner is president of the Center for Constitutional Rights (CCR) and is adjunct professor of law at Columbia University Law School. Ratner has also been a lecturer of international human rights litigation at the Yale Law School and the Columbia School of Law, president of the National Lawyers Guild, legal director of the Center for Constitutional Rights, and radio co-host for the civil rights show Law and Disorder. Ratner serves on the board of The Culture Project in New York City and is vice-president of the board of Voices of a PeopleÂs History of the United States. He spoke to Anthony Arnove, a member of the ISR [International Socialist Review] editorial board and author of the book Iraq: The Logic of Withdrawal.
LETÂS START with the Obama administrationÂs policies on habeas corpus and on torture. As a presidential candidate, Obama said he would close GuantÃ¡namo, said he believed in habeas corpus rights, and was critical of President Bush. WhatÂs been his practice since he came to office?
MY OFFICE, CCR, is one of the legal groups that represents many of the GuantÃ¡namo detainees and brings these writs of habeas corpus. That is a fancy way of saying, ÂLetÂs go to court, and see if thereÂs any evidence to hold the person.Â The expectations of the team of lawyers representing the detainees was very high that GuantÃ¡namo would actually close, that Obama would do it. There were probably a little over 300 people in GuantÃ¡namo when he took office. ItÂs down to maybe 200-some now. But we expected betterÂand now it may go on for years. We really thought that Obama wouldnÂt fight us in court on the rights of the detainees, that he would get the detainees either to another country or he would charge and try them. And of course, it hasnÂt worked out that way at all, and itÂs a deep disappointment. In fact a lot of the habeas lawyers signed a letter supporting Obama saying his election would actually be good for our clients. ObamaÂs effort to close it seemingly got off to a somewhat quick start. Obama, within two days of being in office, signed an executive order, which is essentially a presidential order, which said that GuantÃ¡namo would be closed in a year. Of course, as we speak now, itÂs more than a year and a half after that order, and it is not near closed. ObamaÂs commitment has been abandoned. And he made a number of other promises that have not been met about secret detention sites, military commissions, and the like.
Obama has put new clothes on the Bush doctrine toward Âenemy combatants,Â but the underlying lawlessness of the doctrine is the same. In particular, imagine this: you go to court on behalf of someone in GuantÃ¡namo, and the judge has to decide whether there is sufficient evidence to hold him. What Bush said was they can be held as Âenemy combatants,Â and he gave the term a vague definition, such as that the person was hostile to the United States or picked up arms against the United States or belonged to a group that was hostile to the United States. If there was ÂevidenceÂ those detainees could be held in prison indefinitely, essentially a form of preventive detention. We had hoped Obama would get rid of that entire preventive detention scheme. CCRÂs view is there should not be a preventive detention schemeÂitÂs illegal and immoral. What you must do, and what is legally necessary, is to charge someone with a crime, and hold them only if theyÂre convicted. The rule is simple: charge and try people with crimes, or release them. There are not any other valid legal choices.
I considered this preventive detention scheme to be one of the worst hallmarks of the Bush administration. Sadly, this intolerable preventive detention scheme has continued, and you could say continued with a vengeance, under Obama. He has repeatedly stated that he is continuing the preventive detention scheme. He said that at his major speech on GuantÃ¡namo in May 2009. He has repeated it again and again. We expect at least fifty of the GuantÃ¡namo people to be held under a scheme in which theyÂre preventively detained, which is to say they are never charged with a crime. TheyÂre held in a prison right now in GuantÃ¡namo, or perhaps could be taken somewhere else. Now the somewhere else could be this prison the U.S. government is trying to buy in Illinois. For now, Congress is stopping that, as Congress, including many Democrats, wants to keep GuantÃ¡namo opened. It passed legislation prohibiting the spending of any money to buy or refurbish a prison in the United States for this purpose. Our view is that moving GuantÃ¡namo from an offshore location to a U.S. continental location makes no difference to our clients. In fact, it could be worse if the process is exactly the same, if theyÂre still held in preventive detention and if the administration then considers the problem solved. The effort to repackage GuantÃ¡namo in Illinois is a transparent attempt to close GuantÃ¡namo while keeping it open in Illinois. So whatÂs the difference? TheyÂre just moving the Bush scheme from an island to the continent.
So as to closing GuantÃ¡namo, and particularly on this issue of habeas corpus and preventive detention, Obama has been a disaster. And Obama has followed the Bush policy on its limitations as to the power of judges to release GuantÃ¡namo detainees. When you win a habeas corpus case in the court, the court says, ÂWell, even under the Obama definition,Â which is roughly the same as a Bush definition of enemy combatant, ÂthereÂs no evidence that your client was hostile to the United States in the way in which the U.S. claims. The evidence is fallacious. ItÂs no good. And therefore, I order your client released.Â The Bush administration took the position that, yes, the judge could find that a detainee shouldnÂt be held, but the judge had no right to release him because that was a foreign policy matter up to the president. So you had a system of law that had no power. No matter what the court decided, the president could decide differently. You might ask, ÂWhat happened to checks and balances under our Constitution and what happened to the independence of the judiciary?Â Well, the president made himself the boss.
We had hoped Obama would do better, but thatÂs not the case. WeÂve won a number of habeas cases before federal judges in Washington, D.C. TheyÂve said, ÂAs to your client, thereÂs no evidence to hold him.Â The Uighurs, Muslims from Western China, are the classic example of that. They canÂt be sent back to China because it is likely they will be tortured in China. Therefore, the judge says, ÂIÂm going to release them.Â Fine, they should be released to the United States. And of course, the Obama administration then asserts that a federal court has no right to release the detainees into the United States even if they are utterly innocent. So our clients, even though many of them have been found to not fit any definition of an enemy combatant are still sitting in GuantÃ¡namo.
So Obama is the same as Bush regarding the use of preventive detention. HeÂs the same regarding his refusal to accept that a federal judge has the authority to release a detainee who is innocent. Now think about that. If a federal judge doesnÂt have the right to release someone from custody, what kind of a state are we talking about? Is that a democratic state with protections for the individual? Or is it essentially a police state where the executive overrides a court decision and says, ÂIÂm going to keep you in prison?Â So to say IÂm disappointed, disappointed would not be the right word for me. I didnÂt have high expectations. I never have for the executive. But after eight and a half years of litigation, win after win in the courts, and after ObamaÂs promises, his actions regarding GuantÃ¡namo are repugnant: repugnant for those wrongly tortured and jailedÂand repugnant to fundamental precepts of liberty that have taken a thousand years to establish.
The fight continues. The lawyers, and sadly the clients, are deep in the trenches and no one seems to give a damn about it. In fact, you could almost say Obama is one thing, but of course the Congress is, I wouldnÂt say another thing, but it is so right wing on these issues, so nasty and draconian, that the slightest effort to bring a GuantÃ¡namo detainee to the United States brings out the nativism and antediluvian Republicans and Democrats, which constitute a majority. The Democratic Congress actually passed a law saying no GuantÃ¡namo detainee could be brought to the United States, even if the detainee was jailed, much less released.
Some people say, well, ÂObama is caught by the right-wingers in Congress. And what can you do about it?Â But of course, many Democrats, obviously a majority of them, go along with these punitive policies. The Democrats apparently donÂt want to appear weak on national security or perhaps they really believe in preventive detention or that a Uighur is a danger in America. They think if they appear weak on what they consider national security that somehow theyÂre going to lose the next election. And so they almost outdo the Republicans on these issues with GuantÃ¡namo and the like.
We now have the spectacle of a Democratic president selling out the Constitution and with it the lives of innocents at GuantÃ¡namo and the freedom of future generations as these special laws become the laws for all of us.
WHAT IS your take on Bagram air base in Afghanistan, which Obama has expanded?
THE SITUATION at Bagram is worrisome because it is a secret prisonÂwe canÂt get access. Significantly, after we got access to GuantÃ¡namo, almost no one was sent to GuantÃ¡namo. The reason is because it was no longer a secret prison. We have attorneys going to GuantÃ¡namo. How are you going to torture someone if I can walk in the next day and ask the person, ÂWhat happened to you?Â Neither Bush nor Obama want lawyers involved and finding out about torture. So after we won the 2004 Supreme Court case giving us access to GuantÃ¡namo, no one, literally, no one was transferred to GuantÃ¡namo, with the exception of those transferred from secret sites the Bush administration was forced to close. Those people, Abu Zubaydah and others, had already been tortured to heck. They were sent to GuantÃ¡namo because they had already been tortured and there was nothing more to do to them. Some of those guys were waterboarded eighty times or a hundred and eighty times and then were sent to GuantÃ¡namo. So to maintain a secret prison, or at least one where the detainees could not see lawyers, Bagram began filling up.
What is happening at Bagram now, of course, is unknown to most of us because we donÂt have access, at least to the part of Bagram where they hold people. Even the Red Cross was denied access to certain sections of Bagram. So my suspicion is that, if and when we begin to get access to Bagram, or get people out of Bagram, weÂre going to hear horrendous reports of abuse. We have tried to win habeas rights, or the right to go to court, on behalf of people in Bagram, and a couple of lawyers actually won the right for non-Afghans held in Bagram. (Bagram is in Afghanistan.) But, the Obama administration appealed those cases, arguing, ÂYou have no right to represent anybody at Bagram, even if theyÂre non-Afghans, much less Afghans.Â The Obama position prevailed in the court. So the Obama administration, again, has been consistent with the Bush administration.
As IÂve indicated, often ObamaÂs policies are squarely consistent with Bush policiesÂthey are the same. Sometimes, if you look at the Miranda and presentment issues, ObamaÂs actually going beyond Bush.
If I had to summarize this part of our discussion, I would say weÂre in a very dark period.
COULD YOU talk about the question of the right the government is asserting to carry out what they call targeted killings, assassinations of people, including people who are U.S. citizens? What that policy is, what authority theyÂre claiming to do that?
THE UNITED States government carries out assassinations in many different ways. They have hit teams all over Afghanistan and Iraq assassinating people. And of course, thatÂs reminiscent of the Phoenix Program in Vietnam, when thousand of village leaders and others were murdered. They are killing people out of uniform, people who they suspect might be al-Qaeda or Taliban or hostile. Mere suspicion is probably enough for them to kill. One issue is what level of evidence the United States is using before the trigger is pulled. ItÂs one thing when you see a guy on a battlefield, and you shoot him. ItÂs quite another thing to walk into a house or an apartment in Pakistan or even in Afghanistan, much less Yemen or England, and assassinate somebody. Because the question is, how do you know he or she is an enemy? Are you killing innocent people or not?
If GuantÃ¡namo is an example of the reliability of U.S. evidence, a lot of innocent people are being murdered by the United States. If you look at the people who are at GuantÃ¡namo, the fact is that the great majority were not involved with al-Qaeda or terrorismÂI mean, at least three quarters or more. It makes you seriously question who is getting killed out there. Whether they do it by guns or drones, it seems likely from the data we have from GuantÃ¡namo that the United States is regularly committing murder.
Killing by drones is a special problem. Drones fly over towns, look for suspected targets, and send videos back to some guy sitting in front of a computer at the CIA in Virginia. Then these killers by computer see a guy they want to kill, and release a weapon from a drone that wipes out the person and probably his entire household. ItÂs done remotely. One big problem with remote killing is you donÂt really know whom you are targeting. You donÂt know who is in the house. You donÂt know if you are adhering to the laws of war and the requirement that even a killing allowed by the laws of war cannot kill civilians out of proportion to the value of the target. You also donÂt know whether youÂre really killing someone who can be killed under the laws of war. And Obama, interestingly, has increased the use of drones by, I think, at least double what Bush had used.
So you see how these so-called national security policies, which most Democrats and liberals condemned as unlawful and unnecessary, are now the bread and butter of the Obama administration. These unlawful practices are not just continued by a Democratic administration, but as with the use of drones, increased.
Now what are the legal problems with drones? There are issues that are similar to those that arise in rendition and kidnapping. Using drones, like those practices, may violate sovereignty by crossing borders of other countries without permission. Secondly, there are questions under the Geneva Conventions concerning targeting and disproportional killing. And third, thereÂs an obviously huge issue of what we call international due process. What is the process required before a state can kill? Outside of a war zone, the Obama administration believes it can go it alone and just kill people. So there are a lot of issues, which seem of little concern to the United States.
Now letÂs take a case you are raising implicitly. The Anwar al-Awlaki case concerns a U.S. citizen, a Muslim cleric living in Yemen. The U.S. government has targeted him for death. Afghanistan and parts of Pakistan are arguably war zones. Yemen is not. Yemen is a country where the United States is not at war. The legal handle that Obama is using to justify the murder is the Authorization to Use Military Force (AUMF), which is the Congressional statute that allowed the president to send forces into Afghanistan after 9/11. Here we are eight years later, and of course, it reminds me of the Gulf of Tonkin resolution in Vietnam, which was used to continue fighting in Vietnam and to extend the war into Laos and Cambodia. But it was a bogus argument.
The AUMF, which is narrower than the Tonkin resolution, says you can go after any entity, any state, and any person who was involved in 9/11 or who harbored the 9/11 people. So itÂs really about 9/11. Obama justifies his widening of the war by relying on a broad interpretation of the AUMF. He says this is better than what Bush did because Bush relied on claims of raw presidential power. ÂIÂm just using my authority as the president of the United States to protect the United States in self-defense.Â Obama says, ÂOh, no, IÂm not like Bush. IÂm using the Authorization to Use Military Force.Â So Obama is using that. Obama puts a little dubious law in front of his assertions of power, but itÂs the same policy. ItÂs using a statute that really shouldnÂt apply at all. It should no longer apply to the war in Afghanistan and certainly should not provide authority for the use of drones everywhere in the world.
So letÂs go back to Yemen. ThereÂs al-Awlaki sitting in Yemen. He is a U.S. citizen, and he lived in the United States for a while. HeÂs made some very fiery speeches and, in the newspapers and by U.S. government statements, is linked to various terrorist acts. But is there any evidence that he assisted the so-called Âunderpants bomberÂ? Or is there any evidence that says he put the Fort Hood doctor up to killing people? Or that he aided the SUV bomber in Times Square? The answer is, we donÂt know. But we do know he is a fiery, radical Muslim cleric. Because of that, the United States has almost proudly said he is now targeted for death in Yemen. HeÂs hiding somewhere in YemenÂthe United States apparently does not know whereÂbut theyÂre looking to kill him. Remember this is a U.S. citizen. The United States is not giving him any due process. They are not trying to have him arrested first. TheyÂre just saying, ÂWe have a right to kill him because we suspect he may be involved in these three incidents.Â Yemen is a sovereign country. It is not a war zone. Yet we claim the right to send a drone over there and kill this guy. As a friend asks me the other day, ÂWhat if this guy were living in England? Would we have the same right? What if he was living in the United States? Would we have the same right?Â
One of the important things about this is that this looks like it was intentional by the administration to assert this kind of executive power. It appears that it was intentionally leakedÂ that Anwar al-Awlaki was on the assassination list. They did that, really, to demonstrate that they had the power to kill American citizens anywhere in the world, and that wouldÂ include the United States under their theory. ThereÂs no reason that they couldnÂt kill an American citizen in the United States, assassinate him, before indictment, before conviction,Â without even trying to arrest him. So this is an incredible grab for executive power, and the question is, will the courts allow this to simply go on?
I remember when the AUMF was passed in September 2001, someone said to me, ÂIt doesnÂt have any geographical limitations. The president can make war anywhere.Â And thatÂs correct. It doesnÂt have any geographical limits. It just says the president can get the 9/11 guys: the people who did it and supported them. So its open season by this government against those it claims are terrorists without any legal protections.
So weÂre in a pretty bad period. I would say that thereÂs literally nothing that indicates Obama cares a whit more about protecting fundamental rights of people than Bush. You could actually say that because theyÂre Democrats, they also want to appear that theyÂre tough on terrorism, too. Perhaps, they are worse than Bush on some of these national security issues.
ONE OF the issues that has faced us is government surveillance of dissent, government interference in protest movements, undercover forces being sent into meetings of peaceful organizations and groups, in some cases acting as provocateurs at demonstrations, as we saw at the Republican National Convention. Has the kind of legal environment in which dissent takes place changed at all in recent years? And what are the prospects under Obama as you see them?
AT MY office at the Center, weÂve been looking at issues of protest and dissent for a very long time. One reason you look at them is because when you think about social change, it doesnÂt really happen behind your computer. It happens in the streets. And it happens by organizing. It happens by having groups that organize and protest. Every country in the world tries to destroy dissent and protest, whatever country you name, and works to make change difficult. Groups are infiltrated, the press is limited, demonstrations are suppressed, and activists are beaten and jailed. Governments understand that people in the streets can force change. Nice talk in the halls of Congress does not. IÂm sure many ISR readers are familiar with postÂVietnam War Church Committee hearings that exposed massive surveillance, infiltration, and use of undercover agents to kill off dissent in the United States, literally and figuratively. After Vietnam you saw then a slight pushing back against the governmentÂs efforts at stopping protest and dissent. FBI guidelines limited the activities of the FBIÂeven if they were insufficient and were violated. At least we had a start on reining in the U.S. political police. You had laws limiting what the CIA could do in the United States. Then we saw those limitations, minimal as they were, eroded. The Âtake the handcuffs offÂ the FBI and CIA argument gained force under President Ronald Reagan and has escalated drastically since 9/11.
There are a series of guidelines that are issued periodically by the president to controlÂor some would say unleashÂthe FBI. The last series was issued thirty days or so before Bush left office. After you read those and you compare them to the earlier ones, you realize now the FBI can do anything it wants. It can target anyone. The only limitation, if you want to call it that, is it canÂt open an investigation of someone Âsolely because of their First Amendment activities or solely because of their race or religion.Â So what does that really mean: it means a personÂs exercise of First Amendment activities can be a basis for an investigation but it canÂt be the only reason to go after someone. Another section says, the FBI does not need any suspicion at all to search all the public information it can get its hands on. It can do Web searches, or walk into a mosque or a synagogue and start taking notes on who is there and what people are saying. The FBI can be, and probably is, everywhere.
WhatÂs interesting about the FBI guidelines is that they allow investigation for three purposes. One is for law enforcement. That makes senseÂit investigates the violation of federal laws. Second, the FBI is allowed to investigate any activity that might injure the national security of the United States. That is really a loose category, as the FBI can claim that almost any activity, for example, a demonstration against a war, might injure national security. A third investigative purpose authorizing the FBI to investgate is to gather information that would be helpful in carrying out the foreign policy of the United States. Well, when you hear this last category, you realize there are no limits on the FBIÂs areas of spying. For example, any time you have a contact with someone overseas through the Internet, the FBI can simply say, ÂWell, we need to find out that information because it helps us determine what the United States should do about Hugo ChÃ¡vez or what we should do about Fidel Castro or what we should do about Israel or what we should do about France or what we should do about England.Â
The opening paragraph of the guidelines is explicit: it states that Âthe FBI is not just a law enforcement agency. ItÂs an intelligence agency.Â The FBI is your domestic political police. And when I read the guidelines again, the only ÂprotectionsÂ are within the hierarchy of the FBIÂand that is meaningless. For example, a lower level agent canÂt put an undercover agent into an academic institution without getting the approval of his supervisor. If itÂs just the infiltration of a political group, the agent can do that on his own. So there are no protections against even exceeding the limits in the guidelines. ItÂs completely open season on what any of us do, say, write, on a computer. I really couldnÂt find any protections for our constitutional rights. The guidelines claim that the FBI must obey the Constitution, but thatÂs a meaningless assertion that is belied by the broad spying they authorize.
So you there you have it. The FBI and the government can know everything about your activities. IÂm sure ISR readers are somewhat familiar with the suppression of demonstrations. The FBI and police have interfered with almost every major demonstration. WeÂve had a few classic examples. The February 2003 antiÂIraq War demonstration was a paradigm. The city refused a permit for the demonstration to march past the United Nations. The reason they wanted to march past the UN was because the UN Security Council was about to make a decision on whether or not to authorize the Iraq War. So they forced the march onto streets far from the meeting. There was no legitimate reason for doing so. Then the city, presumably with help from the federal government set up pens, which are these large fenced in areas, block by block, so there can be no mass demonstration but only protest in these pens. Everybody is in pens. Horses are then used to push people around. It all ends with arrests of the innocent. ThatÂs February 2003.
By the time we get back to New York and the RNC in 2004 or the RNC in Minneapolis in 2008, the system of suppression has been perfectedÂand mass arrests of demonstrators are carried out with impunity. In New York a net is thrown over three or four hundred peaceful people downtown, many of whom were bystanders. There were no court appearances for days and the arrested were jailed in what was nicknamed GuantÃ¡namo on the Hudson, an old bus garage filled with toxins. At the RNC in Minneapolis, journalists as well as demonstrators were targeted. Some forty journalists, including Amy Goodman, were jailed. Amy was supposedly given a choice: ÂYou can either cover this demonstration by embedding with us, the police, or you can cover it from a distance with a telescopic lens on your camera. You canÂt actually go closer to cover the demonstration.Â
Then of course, we had the G20 meeting Pittsburgh. The G20 is the meeting of government finance ministers from the twenty richest countries. CCR got involved because of the refusal to issue the permit for a demonstration unless the demonstration took place three to five miles away from the G20. We had to go court to win the permit. Once the protest began, the police, for the first time in the United States, brought out a sound machine. The machine makes this high-pitched sound that disperses protesters because the sound it makes is unbearable.
The suppression of dissentÂand by that I mean active, militant dissent in the form of protestsÂis under serious threat. The government claims that the threat of terrorism requires all of this spying and the restrictions on protest. That is bogus. ItÂs about insuring the status quo and business as usual. It always has been.
CAN YOU comment on the September FBI raids in Chicago and Minneapolis?
I WAS shocked to see that the FBI hadÂ search warrants to go into various houses and an office of activist leaders and people around the country who are involved in antiwar activities, very broad search warrants for every single piece of information those people or organizations had in theirÂ computers or on their cell phones. They took out boxes of material. The FBI raids were particularly focused in Minneapolis, where they went after the very people who organized theÂ important antiwar demonstrations and anti-RNC demonstrations in 2008.
So thereÂs been across the country, I think, a real shock at the FBI looking notoriously like it looked under Herbert Hoover in the 1950s and 1960s, like it looked when it went against theÂ Central America solidarity movement in the 1980s. It unfortunately follows a pattern of cracking down on dissent in this country, whether it is dissent by activists against the war,Â activists involved in Palestinian causes, or activists involved in environmental causes.
What we have is what weÂve always had, an intelligence police, a political police in this country, and thatÂs what this latest operation has been about.
YOUÂVE MADE a clear case that thereÂs been a shift toward expanding executive power while weakening civil liberties. Nonetheless, on rights related to gay marriage and around capital punishment, especially in juvenile cases, thereÂs arguably been a shift to the left. It seems to me thereÂs an interesting dynamic at work, where, at least at some level, cultural shifts, political shifts, gains of social movements have had positive impacts at the level of court decision making. Do you see any evidence of that?
WELL, I think one lesson we can draw, which IÂve drawn for a long time, is donÂt trust Congress or the executive to take on these cultural and civil liberties issue. The chances of those changes coming out of the Congress, or from the executive, are very rare. Look at ÂDonÂt Ask, DonÂt Tell.Â Despite the tremendous support Obama got in the gay and lesbian community, despite meeting with them and making promises, so far thereÂs been no result. ThereÂs tremendous anger about the fact that Obama is just dilly-dallying. Again, he talks a good game but does not come through. He says, ÂIÂd like to do it.Â Even though other militaries in the world, England, for example, donÂt discriminate against gays, he still does. He could make the change tomorrow. Tomorrow, he could write an executive order, but he hasnÂt done it.
Likewise with gay marriage. Here you have that occurring on a much more local state and city level. You have states that are more progressive on those issues because there is grassroots activism there. The change is not coming out of Washington. When I saw those first gay marriage decisions coming out of state legislatures and out of state courts, that was historic. It is really important to understand that people are going to have much more effect right now outside of Washington than inside of Washington, particularly on those social hot-button issues. Certain rights are never going to be given by federal or state legislatures, particularly the Congress. Many of these social issues are like lightning rods in Congress, and Congress is like the Roman Senate at its most decadent and corrupt. So Congress, in its great wisdom, passes the Defense of Marriage Act. In his platform Obama included repeal of the act, but when he became president, his Justice Department defended its constitutionality. Recently, a district court judge held it unconstitutional. So, there you go. Whether he believed in what he said or not, who knows? But again, does it really make any difference? Either he is an opportunist or a moderate. We need to stop saying he is liberal and knows better. How he votes and what he does is who he is as president.
Sometimes even a conservative court can do better than a Congress that has become a bastion of the status quo and an unquestioning supporter of executive power. As conservative as the Supreme Court is, we won the right to habeas for GuantÃ¡namo detainees by a vote of 6 to 3 and then 5 to 4 three times in a row. Congress tried to overturn each of those decisions. Whether we could win it again with Sonia Sotomayor and Kagan in there, I donÂt know. I donÂt know if Kagan had been on that court whether we would still win the right of habeas. SheÂs always been someone who, it seems to me, has made whatever decisions are necessary for her to get ahead in the world.
That being said, I am less sure about the Court protecting even the most basic rights now than I have been in my forty-year legal career. There is harshness in the Court toward the underdog, the impoverished, and equal rights that is unprecedented in my life. Congress likewise offers little hope. The combination of money and Âscared of your own shadow politicsÂ makes for a Congress that will do little or nothing to protect fundamental rights.
So my view is that without a mass movement of people, like the one that pushed through the civil rights bills in the 1960s when Lyndon Johnson was really forced to act to put through the Voting Rights Act and other progressive legislation, youÂre not going to get very much in Washington. That kind of movement is not in the offing right now, although there is a lot of local organizing by young people all over the country. There are huge pro-immigration forces, militant protests against mountaintop removal, and a new militancy around the environment. So when weÂre talking about domestic issues, it does seem to me that organizing is the key, and statewide efforts or citywide efforts are absolutely crucial.
When change comes it is unpredictable, but it does not happen by chance. As I said, there is protest going on all over this country. At some point all these small efforts coalesce, and weÂll see the changes we want. We donÂt know the moment, but there will be a moment when our efforts succeed. Women fighting for the right to vote were jailed and beaten for decades. When their protests began, hardly anyone thought the suffragettes had a chance, yet they didÂand won. A few years ago, no one would have expected gay marriage to move through this country and the world like a prairie fire. Many considered it almost silly. All of us need to light sparks all the time, and then the time comes when justice is inevitable. Another example is Palestine. A few years ago, the right of the Palestinian people to a real homeland was not on the agenda of most progressives. A few stalwarts kept pressing the issue and demonstrations that used to draw twenty now draw hundreds.
What we can’t do is look to the establishment, and I include Obama, to do our job. We must always, without any compromise, be on the side of right and justice.
ISR Issue 74, NovemberÂDecember 2010