On Contact: Radical as reality itself

CH: Michael Ratner was one of the most important civil rights attorneys of our era.  He spent his life fighting on behalf of those the state and the empire sought to crush.  From the leaders of the prison uprising at Attica to Muslim prisoners held in Guantanamo to Julian Assange.  First in this class at Columbia Law School, he could've easily slipped into the lucrative world of corporate law.  But Michael wanted something more than money and status out of life.  He wanted to make a difference.  He wanted to make the world a better place.  Michael, who died in 2016, was the president of the National Lawyers Guild.  He spent 40 years at the Center for Constitutional Rights, first as a Staff Attorney, then Litigation Director and finally as President.  He helped establish the European Center for Human and Constitutional Rights and the Palestine Legal fund to defend supporters of the Palestinian people against what he called The Palestine Exception to the First Amendment.  In 2004, he started the radio show, Law and Disorder on WBAI with other attorneys including Michael Smith, and it is now broadcast nationally on 120 stations.  As a lawyer, often working pro bono, he won historic legal victories such as protecting Haitians infected with the HIV virus who are initially confined by the US at its military base in Guantanamo, Cuba.  He initiated and organized some 600 lawyers and firms large and small across the country to come to the defense of Muslim prisoners accused of terrorism and held at Guantanamo after 9/11.  He took the case to the Supreme Court and won for these prisoners the basic right of habeas corpus.  He was, as Vladimir Lenin wrote, as radical as reality itself.  He understood that those who are above the struggle are also beside the point.  He had four key principles of being a radical lawyer.  Do not refuse to take a case just 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, and finally, love people.  Joining me to discuss Michael Ratner's recently published memoir "Moving the Bar, My Life as A Radical Lawyer" is his close friend and collaborator for nearly three decades, the attorney Michael Smith.  So I--once you--Michael, as an attorney who has been long in the struggle to set the stage for us, because I think reading Michael's book, you get a sense that it's almost a rearguard action that there was a period certainly right after the 1960s, the late '60s, early '70s, when the courts were a positive force for social change.  But then there was this steady deterioration--I think in his book, Michael talks about the Patriot Act, he actually calls it a coup d'etat, but talk about that trajectory that really dominates your work as an attorney and Michael Ratner's work as an attorney.

MS: Well, I think that Michael viewed the degradation and decline of democracy as something that's going on since Ronald Reagan, really, over the last 40 years.  Michael thought that democracy was not compatible ultimately with capitalism.  He thought fascism was, but not democracy.  And in the course of his almost 50 years of litigating, he saw that decline and resisted it, resisted it 40 years ago with his litigation around Central America.  When the Nicaraguans rose up and overthrew Somoza, the dictator, Somoza was a second generation dictator.  His father had been the dictator in the '30s.  Roosevelt called Somoza a bastard, but he's our bastard.  His kid came to power, was overthrown by the Nicaraguans who tried to control their own country and their own lives.  And an organization called the Contras was established to overthrow the Nicaraguan revolution.  Reagan called them the George Washington of his times.  And Michael began litigating what is an illegal war in financing the Contras.  That was 40 years ago.  And so I think that you make the point that it's been a rearguard action actually since then.  Michael didn't live to see the consequences of Trump, but Trump is really a reflection of that, isn't he?

CH: Yes.  I was in Central America then, it's so funny how many times Michael's life's work and life converged with my own.  Of course later I was in the Middle East and then I flew to London with Michael to meet Julian Assange.  Michael was going almost every month to London as Assange's lead attorney in the United States.  Let's talk about the deterioration of law which Michael talks about in his book.  Let's kind of lay out for people what has happened to diminish our democracy and diminish our rights as citizens over the last few decades.  I know not just going even before the authorization to use Military Force Act in 2002 I believe, that--was that the right year.  And--but going back even to the misuse of grand juries, talk about how the judiciary, and I think one of the points Michael makes in the book that it's really the legal system that makes significant change, it's never the elected politicians who are too cautious.  So, it was the judiciary was kind of the last readout.  And talk about that process, you know, the legal decisions that have diminished the judiciary as an effective force for our own rights and our own protection.

MS: Well, Michael saw law as a method of social control created by a socioeconomic system that was determined at all cost to perpetuate itself by any means necessary and for as long as possible.  So he understood the rule of law.  Now there are exceptions.  The Bill of Rights is an exception.  The American constitution did not contain the Bill of Rights initially and it was only the small shopkeepers and farmers, people who actually made the revolution that would not support the constitution until they put in the Bill of Rights.  So there's a contradiction between capitalist law and the Bill of Right and it was in that area, that contradiction that Michael worked.  He started off--well, let me just--let me just begin with some background from Michael because I think it's important for our viewers to understand that Michael came from an immigrant family in Cleveland.  His father came from Poland.  He always talked Poland at age 20.  He was five foot four inches tall.  He didn't speak English, he spoke Yiddish.  He married a woman from an extremely poor family, Anne Spott.  She was the 11th of 12 children who grew up during the depression in Cleveland.  And that's how they started out.  When Michael was born, Yiddish was his first language.  His parents had to send him to school to learn how to articulate English.  The parents were attached really to the old country and many of their relatives were killed during the Holocaust.  So Michael remembers as a young child, men and his father--his father developed into a successful businessman.  He started off literally carrying water on a construction site and he became the head of a company that sold building supplies.  And he hired Black people and he hired refugees from the deportation camps, Jews with numbers on their forearms.  His mother took Michael and his young brother, Bruce, around looking for apartments so they could help resettle these refugees from Poland.  So Michael saw that terrible consequence of the Second World War and he grew up with that consciousness.  And the thing I think that turned him into what he became was his experiences in 1968.  And I think it's important to understand for our listeners who are younger than we are that 1968 was a crucial year in world history.  In many respects, the Vietnamese revolution was unfolding.  United States was trying to stop it unsuccessfully.   The Civil Rights movement was unfolding.  There were huge uprisings in '67, King was killed then.  The French workers and students almost made a revolution.  De Gaulle, who was the head of France, left the country.  If it wasn't for the reformism and hesitancy of the Communist Party, we would've had a socialist France.  The undemocratic Stalinist dictatorship of Czechoslovakia was almost overthrown.  So the world was in an upheaval.  Michael took a year off at the Columbia Law School and went down to Baltimore to work for the NAACP and the Civil Rights movement.  And he came back to Columbia Law School on the very day that the students had occupied several buildings on the campus.  Michael showed up, the cops raided these buildings, brutalized the students.  Seven hundred students were sent to the hospital.  Michael was grabbed and beaten down to the ground and badly hurt and I think that's what changed Michael.  That was the crucial point because he understood the role that Columbia was playing.  They had tried to build a gym on a park in Harlem, and they put up a separate door in the back for Black people.  They had an institution that helped theoretical studies on the war in Vietnam and do mathematics.  They were connected to the whole imperial system.  And Michael thought about what his uncle had told him, "Don't work for somebody else."  Well, Michael decided he would work for somebody else, but that somebody else wouldn't be a private corporation in a white-shoe law firm that somebody else would be the movement.  And when he graduated two years later, he went and got a job with Constance Baker Motley who was the only Black federal judge in the country.  When he got out of that job, he started a private law practice with Margaret Ratner who became his wife.  And then in 1971, he was asked to work at the Center for Constitutional Rights.  The center had come out of the Civil Rights movement.  The three leaders to the center were the great lawyers at that time for the Civil Rights movement [INDISTINCT] of course our listeners will remember.  But also Morty Stavis and Arthur Kinoy and they had a little loft in the pornography district on 42nd Street that'll walk up--in one room, there are about 12 people in the room.  And instead of joining a law firm that was real fancy with suites, Michael joined this one room loft in the porno district on 42nd Street.  Three days later, they sent him to Attica.  It was the first day that outsiders were allowed to come in to Attica.  And Michael's job was to interview the prisoners on what happened.  It was a massacre.  Governor Rockefeller had his eyes on becoming president.  He didn't want to see his opponents talking about him as being soft on the rebellion.  The prisoners said, "Rose up for good reason in this overcrowded medieval fortress just south of Buffalo."  And they had taken over the prison and Rockefeller called in the troops and they gunned down people in the D Yard.  They killed 37 people.  And Michael went up there to find out what happened.  That was his first assignment from the center.  He was a Staff Attorney there.  He became the Litigation Director.  Then he became the President to the Center for Constitutional Rights.  He stayed there for 40 years and that's something that we could talk about the various cases that he handled when he was part of the center.

CH: Great.  When we come back, we'll continue our conversation about Michael Ratner's new memoir with the attorney, Michael Smith.  Welcome back to On Contact.  We continue our conversation about Michael Ratner's new memoir, "Raising the Bar" with the Attorney Michael Smith.  I want to go back, Michael, to his work with Judge Motley, he writes in the book "But the appeals court very often reverse Judge Motley's decisions and her courthouse critics gossiped that Judge Motley was 'not that smart,' referring to a woman who had argued ten cases in the Supreme Court and won nine of them.  No appeals court judge had a record close to that.  Not that smart," Ratner writes, "…simply meant that the conservative business-oriented appeals court did not agree with decisions she had based at least in part on elementary fairness or equal treatment before the law.  I have often thought about this question of who is 'smart.'  Somehow, conventional legal pundits consider Supreme Court Chief Justice John Roberts 'very smart.'  He can upend court president by narrowly reading earlier decisions that establish fundamental protections.  He confined all the ambiguities in those cases and can color key facts in his own way.  He can reach a decision that appears logical, but as simply a scholastic exercise masquerading as a judicial opinion.  However, when a woman and/or a Black judge reads cases to establish rights broadly and interject fairness into its decision, the legal pundits label that judge not smart."  And I think what he's really saying here is how those who take a broader sense of the law, as he did and you do, a broader understanding of law are dismissed by the conservative hierarchy.  Can you just talk about that?  That was a really interesting point.

MS: Yeah.  Very interesting.  I'd like to put that in the context of what you said initially about the decline of democracy in the rule of law, because I think that Constance Baker Motley was somebody that would have held--upheld the rule of law and democracy, and conservatives like Roberts are the ones that are picking away at it.  And I wanted to talk a bit about Michael's most famous case, Rasul versus Bush, which illustrates that, because Michael was very sensitive to the decline of democracy.  And when he saw the planes hit the Twin Towers, he was down there, he was jogging past those Twin Towers when the--when the planes hit, he knew that the world was going to be a qualitatively different place.  Then the world was ginned up against Afghanistan and then, of course, against Iraq on a--on a false pretense that Saddam Hussein had weapons of mass destruction and was an ally of Osama bin Laden.  And then the Military Order Number One, the Authorization for the Use of Force, were both passed along with the Patriot Act.  And that's what spurred Michael into action.  The Military Order Number One set up Guantanamo.  Guantanamo was an offshore prison island.  The government had schemed to set up a place where prisoners had no rights.  They weren't prisoners of war, they were detainees.  They weren't criminals, they were detainees.  And as such, they had no rights as prisoners of war or of criminals.  And Michael brought a lawsuit.  He was totally alone.  He had to convince the CCR to go along with it.  Michael brought a lawsuit in to get those Muslim prisoners in this offshore prison camp on Guantanamo to get them the right of habeas corpus, which means literally produce the body.  Under our law, if you're arrested, they have to tell you why they arrested you and they have to bring you in front of a judge, and they weren't doing that with these prisoners.  So Michael took what seemed to be a hopeless case and he lost.  Went to the court of appeals and he lost.  They went up to the Supreme Court and they won and he, along with a team of 600 lawyers that he had organized to defend the Bill of Rights, went on to litigate those cases and they eventually freed--it forced Bush to free over 500 of these prisoners.  And they stopped Bush from torturing these men.  So, I think that amongst the many, many great cases that Michael handled or initiated, that was probably the foremost case but we can talk about some other ones if you'd like.

CH: I just want to pull from another section of the book, "The Authorization to Use Military Force Act," Michael writes, "Gave the president such unprecedented disturbing and broad power that I was not just concerned but truly stunned.  It essentially said the president can use military force to attack any country, organization, or a person who aided, assisted, or harbored persons in the September 11th attacks, and that he could use that military force to prevent any further attacks.  He could start wars against all 37 countries where the US Government claims the al-Qaeda network is present or against anyone else he suspects of involvement in the attacks of 911 or any future attacks.  The president could do all this without getting any further approval from Congress even if it leads us into World War III.  So legally and politically, with the Authorization to Use Military Force Act, Congress gave up its authority over war and handed it to one individual in the White House.  There was no time limit.  They even gave the president a fat $20,000,000,000 check to help him along in this endless war.  This is not what framers of our constitution imagined.  On the contrary, the constitution was drafted to keep presidential wars in check.  As I read the details of the Authorization to Use Military Force Act, I could see--I could just see the excesses coming, illegal surveillance, indefinite detentions, torture, all in the name of national security."  He was--one of the things about Michael is that he--his antenna was so acute that he instantly saw which way the winds were blowing and, of course, the famous case is Julian Assange that he realized after the release of the Iraqi War Logs long before Julian or anyone around him that the US State was coming for him.

MS: Absolutely.  We used to record our radio show in Michael's basement and he had an encrypted phone at his desk, and very often, Julian Assange would call in that encrypted phone.  Michael enjoyed he would talk almost daily.  And he'd go over to London about every month because he knew that if they were able to get Julian Assange for essentially telling the truth, Julian Assange never published anything that was inaccurate.  He acted as a journalist and as a publisher.  He received information, he encouraged people to give him information, he took that information, he distributed that information, that's what journalists and publishers do.  The Times took it, El Pais took it, the German papers, the French papers, and the American imperial system was so embarrassed by what Julian Assange was revealing that they decided to get him.  I'm not being conspiratorial here, we have a document from the State Department that says just that.  They influenced the Swedes to make a false allegation that he was guilty of rape, they destroyed his character.  He fled back to London.  Michael had advised him don't go to Sweden to answer these false charges because the Swedes will send you over to the United States and they'll lock you up forever.  So Michael was successful and Julian went back to England, but then they went after him there, too.  And he finally had to take asylum in the Ecuadorian Embassy.  He was living in this tiny little embassy in two rooms for seven years.  So they had succeeded really in silencing him.  And then they--the whole thing is just unbelievably illegal.  They got the Ecuadorian--it was a new government in Ecuador, the first government under Rafael Correa, had granted Michael asylum and citizenship in Ecuador, and that's where he was holed up now but at least he was--he wasn't in prison.  But the American Government bribed the new successor, Lenin Moreno, with several billions of dollars, and they got Moreno to agree to allow the British police to enter the embassy and snatch Julian and put him in Belmarsh Prison in isolation.  And so they were able to silence him and silence cut off the funding for WikiLeaks, Julian's organization.  It's an imperial worldwide system, and they cannot stand any kind of objective criticism because it's the--it's the truth upon which democracy is based, and that's that fundamental contradiction between imperialism and democracy.  So I think that Julian, who was Michael's last client, the Julian Assange case was really another high point in Michael's ability to sense the future in the instant, and rally people to expose the system.  And in the case of Julian, to eventually free him because I think he'll be walking amongst us very soon.  The problem though is that the decision that Michael was fighting against Julian, they had 17 counts all violating the First Amendment against Julian for being a journalist, and the judge, Baraitser, in London, upheld all those judges.  So we still have a pistol pointed on our head as journalists, and Michael was in that fight to the very end.

CH: I want to talk about this quote that you used in the foreword of Michael's book, "Moving the Bar," about I think--I think it's from Lenin, about being as radical as reality itself.  Explain what that means and why it was important as a kind of grounding for Michael.

MS: Well, I think that all of us had to go through a process of learning actually what reality is because there's an ideological system in this country.  Marx said that the ideology of the ruling class was a ruling ideology and we have an ideological system, the educational system, the communication system, and so on, that prevents us from really understanding in a radical way the roots of what's going on here.  And Michael eventually, as we talked about, by 1968 came to understand that reality.  And he reacted in a way that reflected that understanding.   So he became as radical as reality itself.

CH: And by that, he meant that he understood, you know, what was taking place behind the veil, the crimes of empire.  He was very involved against the endemic racism within the United States that when you looked at the actual machinery of power, the human suffering that it caused both at home and abroad was so radical that it demanded a radical response.

MS: Yeah, precisely.  Michael was not enamored of either one of the major political parties.  He believed that social change came from below.  He very much admired Howard Zinn whose history described that.  And his whole strategy in the cases that he took was to facilitate that social change from below.  He would take cases that he knew he wouldn't win, but it could expose in a radical way the system that was oppressing people.  On the Guantanamo cases, David Cole, who's now the Director of the Litigation for the American Civil Liberties Union, David asked him "Why'd you take this case?"  And Michael said "100% on principle."  And David asked him "Did you think you'd win?"  And he said "No, we didn't think we'd win.  It was a hundred on principle."  And that's--this defines Michael's radicalism, principled litigation.

CH: And just to close, he always argued that activism was vital to judicial progress.  Why?

MS: Well, unless the system is shaken up, unless there are people in motion demanding democratic change, economic change, demanding more freedom, it's not going to happen.  They're not going to give it to us.  It's what Frederick Douglass said, of course, "Power concedes nothing without a demand.  It never did, never will."  And Michael was using his skills as a lawyer to agitate and organize and facilitate those demands percolating up from below that would eventually change the law.  We've seen it happen before, we may see it happen again.  But it's going to come from below.

CH: Great.  That was Michael Smith talking about Michael Ratner's new memoir, "Moving the Bar: My Life as A Radical Lawyer."  Thank you.