04/08/14 – Michael Rattner – The Scott Horton Show

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All right, you guys, welcome back to the show.
I'm Scott Horton and this is my show, The Scott Horton Show, and our next guest on the show today is Michael Ratner.
He is President Emeritus, I think, at the Center for Constitutional Rights.
Welcome back to the show, Michael.
How are you doing?
It's always great to be with you, Scott.
Good.
Well, I'm very happy to have you back on the show.
Not so happy to see this headline, McClatchy's version says, court rejects claims by family members of U.S. drone strike victims, which is surely true, but there's a lot more to it than that.
Can you break the bad news to the people here?
Sure.
We discovered really in 2010, I think, that the U.S. had put an American citizen and a cleric who was living in Yemen named Anwar al-Awlaki on its targeted kill list, either to be killed by drone or by Joint Special Operations Command in some other way.
We went to court on his behalf saying, you don't have a right to kill an American citizen outside a war zone when there's no imminent action contemplated, and you can't do that, it's illegal.
We went to court on behalf of Anwar's father, who was also living in Yemen, who was a Yemeni citizen.
Unfortunately, the court in that case threw it out and said, the father cannot represent the son.
You have to be in court for the son, which of course was almost impossible, it was impossible.
And so we lost the case on what is technically called standing.
Two weeks later, or maybe not two weeks, but shortly after, Anwar al-Awlaki, an American citizen, was killed in a drone strike in Yemen.
Killed with him was another American citizen who was not on any kill list, a man named Samer Khan, who was a writer for a newspaper, I think it was called Inspire, a jihadist newspaper apparently in Yemen.
They were both killed by drones.
Two weeks, literally two weeks after their kill, Anwar al-Awlaki's son, Abdul Rahman, 16 years old, is also killed by a drone.
The United States acknowledges they were not trying to kill Abdul Rahman al-Awlaki.
He was, quote, collateral damage, this beautiful 16-year-old boy.
So at that point, you have three American citizens killed, one of them supposedly, one of them intentionally, Anwar al-Awlaki, two being collateral damage, as they call it, Samer Khan and a young boy, Abdul Rahman al-Awlaki.
At that point, the Center for Constitutional Rights and the ACLU together decide to go to court again.
This time, we're going to go to court for damages for the unlawful killing of all three American citizens, our claims being that you can't kill an American citizen who's not imminently involved in combat outside a war zone, such as a war that's actually going on.
This is in the middle of Yemen.
It could have been in the middle of Montana or the United Kingdom.
What gives the American president the right to simply murder someone with a drone?
So we go to court for damages, and this time we're going in on behalf of the family of Samer Khan, as well as the grandfather of the 16-year-old, Nasser al-Awlaki, as well as he's also the father of Anwar al-Awlaki.
And we go to court saying, you can't just do this.
You need more than the president's authority.
You have to go into a court.
You have to get court authority and provide due process.
And to do that, you have to meet certain standards, which is, essentially, the person has to have their finger on the button of a missile about to launch it to the United States, and there's no other feasible way to stop it, such as arresting the person, et cetera.
And it has to be a specific and concrete threat, and it has to be imminent.
And in this case, obviously, there was no court that did that, and the president deciding to murder someone is not due process of law, which everyone in the world, not just American citizens, are entitled to.
So the decision you were reading the headline from came down a few days ago, and it said the court dismissed our lawsuit, saying that it's sufficient that the president ordered the murder, or the death, they called it, of Anwar al-Awlaki, and that Samarkand and Abdulrahman were unfortunately killed, but they, of course, were not intentionally killed.
They were killed as collateral damage, and you can't sue on their behalf, either.
So we lost the case for some incredibly awful reasoning.
The court said, and this is a quote that no American, no person in the world should ever accept, that, quote, the defendants, in this case the defendants were the head of the CIA, the head of JSOC, the Joint Special Operations Command, various other military entities, that the defendants must be trusted and expect to act in accordance with the U.S. Constitution when they intentionally target a U.S. citizen abroad at the direction of the president and with the concurrence of Congress.
So the judge is saying there, if the president orders the killing, then they have to be trusted.
I mean, a more nasty, pernicious, and evil doctrine is hard to imagine, that if the president can order someone killed, that a court can't do anything about it.
And I want to explain the thing about Congress.
You said Congress also had given their concurrence.
Well, that's not really the case here.
What happened is Congress passed a law that may be familiar to your listeners.
It's called the Authorization to Use Military Force.
It was passed in the wake of 9-11 and authorized, essentially, the bombing and the war with Afghanistan, as well as Guantanamo and everything else.
It simply says the U.S. can go to war with the people who planned the 9-11 attacks.
It's also, it's obviously been broadened so that it's almost anybody who the president wants.
So the president, so Congress gave a broad authorization for a war, but it didn't give broad authorization that you can just kill Americans outside of a war zone.
That's the first thing.
And it never said anything about killing these three people.
But even if it had, it seems to me to be a completely unauthorized and illegal doctrine that just because the president says and Congress says we can go kill American citizens, that doesn't mean a court doesn't have to step in there and say, you can't do this.
Or you can if it meets certain very, very, very narrow circumstances.
Unfortunately, we lost this case.
And the quote, the key one, as I said, is the government must be trusted.
And I want to look at it in the context of the role that's happened to the courts over the last 11 years.
Let me finish one word on these three.
Obviously, we can appeal the case to the Court of Appeals and then higher.
But I must say, you know, the courts have essentially taken a break from the U.S. Constitution since 9-11.
We've lost, if you look at it, any cases to do with torture, every case to do with indefinite detention, and every case to do with drone killing and rendition as well.
So if you look at, you'd call it the, you know, the four evils, or you can three or you can probably make up 10.
But the courts have stepped aside when allegations of torture come in and haven't given relief to people who've been tortured, haven't given relief to the people still sitting in Guantanamo who are indefinitely detained, and haven't given relief even to American citizens who've been killed by drones.
And of course, we've lost every case on rendition as well.
So you can basically say the courts are not just useless, they're worse than useless because they give many people in America the illusion that somehow we have a court system and we're getting rulings.
But in fact, they've upheld doctrines that before 9-11 you would have never suspected a court in the United States to have held.
Well, you know, I'm, I gotta admit, I'm a bit confused about, well maybe there's explanation in history where this comes from that the judges say, well, if the president says it's a matter of national security, then it's none of my business.
I remember Congress actually, some members of Congress, sued Bill Clinton over violating the War Powers Act and starting the war with Kosovo, or they tried to, and the court said, no way.
You two branches of government work this out among yourselves.
It has nothing to do with us at all.
And I just wonder, what's the precedent for that, where that comes from, where they're willing to apply that even as far as the assassination of American citizens, not just U.S. persons, but American citizens?
You know, that, in fact, that Kosovo case was the Center for Constitutional Rights case.
I was a participant in that case, and in that case, they really didn't have the authority to do what they did.
We claim that, actually, in that case, that Congress didn't really give Clinton the authority, and certainly the United Nations hadn't given the authority, and the court, as they have done in some 14 war cases that I've brought since my career began, beginning with Vietnam, going through Central America, the first Iraq war, the Kosovo war, that we have never actually won one of those cases in the courts.
The closest we came was in the early El Salvador interventions, which took place shortly after Vietnam.
Vietnam was over in 76.
We started the El Salvador cases in 81, 82.
And people still have enough memory of these unauthorized, illegal wars that killed millions to say, maybe we'll give a little restraint here.
But really, since that time, it's been a zero.
And the courts have allowed the president, really with or without Congress, to do whatever the president wants when it comes to war.
And if you look at that, if you look at Libya, which happened just in the last year or so, two years, the president in Libya, in the case of Libya, began bombing Libya and running the airplanes over Libya, the no-fly zones, etc., without the authority of Congress, which is completely unauthorized by the U.S. Constitution.
Anytime U.S. forces go into action, other than in strict self-defense when we're attacked, you have to get the authority of Congress.
The president didn't do it in Libya, and he went ahead anyway.
Would the court have done anything?
The answer is 100 percent no.
What they do is they give what they call the political branches, and by that they mean the elected branches, the Congress and the president, unlike the courts, which was not elected.
They give the political branches broad authority to do pretty much what they want, despite the Constitution.
In one way, you could argue that the situation with the killing of an American citizen overseas, as was done in the Al-Waki cases, as well as from Arkan, is actually an even more egregious violation of the Constitution than what was done in the Kosovo case, although obviously in war cases you're killing thousands or millions, so they're more egregious in many ways.
But in a war case, it's generally true that Congress and the president together do have the right to make war under the U.S. Constitution.
All right, and with that, I'm sorry, we're going to have to stop right here just to go out to a very short commercial break.
Michael, if you could hold on with us right there.
We'll be right back, y'all, with Michael Ratner.
He's the President Emeritus of the Center for Constitutional Rights.
Thank goodness for that.
And we'll be right back after this.
Hey, y'all, Scott here.
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All right.
All right.
I'm back.
It's the show.
The Scott Horton Show.
I'm on the line with Michael Ratner, President Emeritus of the Center for Constitutional Rights.
He just finished losing a very important case in federal court.
Appeals are still possible, though, as he said.
So let me follow up on this point here, Michael.
If this was not a matter of national security, but just say, for example, the police chief of Philadelphia announced that he was going to kill John Jackson, I'm going to kill that S.O.B.
You watch me.
And then John Jackson's father tried to file an injunction in the court to make him not do that.
Would they say would they just dismiss it because I mean, they might follow through for other reasons, but would they have grounds if they wanted to, to dismiss that because you're just his father, you're not him.
And so you have no standing to sue, because that seems to me pretty unfair.
And I realize I've had 200 years to come up with all these loopholes where people don't have the right to really petition for redress.
But come on, I think they were wrong in that.
I mean, obviously, if you can't get to your client for whatever reason, either because the client in Yemen and you can't reach him or he's in hiding somewhere in the United States, you should have a right to go to court if his close relative on his or her behalf to try and protect their constitutional rights.
And that actually happened with us in the Guantanamo case.
They wouldn't tell us any of the people at Guantanamo or they wouldn't let us get in touch with them.
We got a hold of a couple of parents who we found out and we actually had standing and were allowed to go to court on that.
So I think in the drone case, the court was trying to avoid a hard decision on that case, and they shouldn't have refrained from it.
Now, the other point that I think was implicit in your question, if a police chief wants to go, says, I'm going to go kill John Jones because, you know, I think he's a danger to the community, you could go to court and stop the police chief.
I mean, that's no issue here.
I mean, unless John Jones, you know, was, you know, was about to throw a bomb and you then shot him before he could shoot, throw the bomb at you, you know, that's a that's a different case.
But the case in which a police chief says, I'm going to go kill this guy because he's dangerous and he's plotting something.
You can't you can't do that.
You have to try and arrest the guy.
Well, I mean, it was kind of a stupid hypothetical.
What I was trying to get at was whether John Jackson, Jr. or senior, I mean, has the right to intervene and or whether, you know, he has a point, but you're you're making another really good point, because I think in the case of the police chief, we could have stopped him in the case of the president.
We couldn't.
And the situations are not that different.
Why should the president be able to order the killing of an American citizen in Yemen versus the police chief order killing of an American in Philadelphia?
Well, because he pretends it's an international enemy and the rule of law doesn't apply to them.
I mean, some laws do or some kind of David Addington laws do.
Right.
It's sort of your national security point.
They use that as a sort of a racer to just erase our U.S. Constitution.
Take a big eraser to the Constitution doesn't apply to this Yemen guy.
Goodbye.
Even though he's an American citizen, even though he's not in a war zone, even though he went into a court and gave it the chance to actually stop the president, they refused.
So we're living in essentially a very lawless, really lawless era.
I mean, as you know, I've been a lawyer for 40 years and this has been it's unprecedented.
What has occurred right now with these areas I've been talking about from drone killings to indefinite detention, to torture, to rendition.
Mm hmm.
All right.
Now, I think there's been an admitted kind of within the government.
There's been a dispute about whether they were targeting a Lockheed for a junior.
I mean, I'm sorry, Abdul Rahman, the grandson here, the 16 year old.
At first they tried to claim that he was an adult, right, and that he was the target.
But then they changed their mind and said that they were after someone else is what I'm trying to get at.
If I'm right about that, they said that, well, no, we were trying to kill somebody else and he just happened to be there.
So we weren't targeting him.
And so it doesn't matter.
But they never really said who it was they were targeting instead or had a real excuse for why they were trying to kill his cousins either.
Right.
Yeah, I think that's correct.
So in the opinion, there is some mention of somebody else, but they were certainly silent for a long time.
They wouldn't say a word, kept trying to figure out what was going on because he was sitting at a table with four other people, you know, cousins and relatives or something in an outdoor cafe.
And it was pretty clear they weren't targeting any of them.
That's become obvious.
They were targeting somebody else may have been nearby.
The drone went off somewhere, maybe, who knows.
But they hit it so directly that it never did.
The point that you're making, it's an important one, is we never have any transparency on who they're killing, what the rules are for their killing, why they do the killing.
And this young kid is an American citizen.
And you know, people have seen a film called Dirty Wars, a Jeremy Scahill film.
They have incredibly beautiful footage of this young man, curly haired, you know, in Yemen playing with his grandfather.
And he goes off as a young man to try and find his father when he's 15 or 16 years old.
He, of course, doesn't.
He's in the wrong area completely because his father's up north, he's somewhere in the south.
And then they kill him.
And you see this kid and you said, well, this could be my own kid.
This is an outrage.
Yeah, well, now, I'm not sure if I want to skip on to the spying, the NSA spying yet.
I guess if you have anything left to say about this assassination thing, well, I guess I am curious still if you could maybe help me refine what I get about what's considered collateral damage and what's not.
Bush did this drone strike in Yemen back in 02, where he killed an American citizen, but he swore he was targeting somebody else and it was just collateral damage.
You mentioned how Al-Awlaki Sr., the father, not the grandfather, was on the list to be killed.
But Samir Khan was not, but he was killed anyway.
And I wonder, I guess, if the courts won't hear it, it doesn't make any difference.
But I mean, does it make any difference?
Well, you know, it's a disgusting rule and it tells you why even some of the rules of international law are so are so awful.
Because here's what the rule is.
The rule is two things.
You have to be aiming at a military target.
Of course, you could miss it.
So that's when it's OK.
You at least were aiming at the right place.
But secondly, there has to be a proportionality in terms of who gets killed.
So if I'm aiming for, you know, one bad guy, can I drop a bomb and kill a thousand civilians who are sitting with him?
In that case, it would be considered not proportional.
You can't kill, you can't intend to kill one person and kill a thousand others.
In the case, this is the rule of law.
I don't agree with it, but this is the rule.
In the case when you're killing, trying to kill one bad guy and you and another bad guy is killed with him, the laws of war would probably say you can do that.
Now, the bigger question to me is why are the laws of war applying at all?
I mean, for two reasons.
One, these people are not in a war zone.
They're sitting in Yemen.
The drone strike, a lot of the drone strike people, they're in Yemen, they're in Pakistan, they're in other countries, they're in Horn of Africa.
They're not to do with the war zone.
So why are they applying the rules of war?
Why aren't they applying the rules that we have when we have to, you know, arrest a bad guy?
That's the first thing.
The second thing is, I've always felt, even though I've been losing the fight, that people who try and commit acts of terrorism against the United States should be treated under criminal laws and not under the laws of war.
That means you arrest them and you try them in regular federal criminal courts.
You don't kill them or capture them and take them to Guantanamo.
I'm sure I'm right about that legally, but that's another huge bend, huge bend that happened in our law.
All right.
Now, can you give us a comment, too, Michael, about the Supreme Court's refusal to take up the Clayman appeal?
The Clayman appeal?
Oh, yeah.
The Larry Clayman had sued and had won on the lower court level on the Fourth Amendment against the NSA on the Verizon wiretapping and all that.
Right.
Judicial watch.
It's been going on for years.
Yeah.
Now the Supreme Court has refused to hear the case.
Right.
I mean, the Supreme Court, you know, has basically eviscerated the Fourth Amendment and the NSA.
Not the NSA.
They eviscerated the Fourth Amendment and not giving any of us the right to go to court for all of this NSA stuff.
They lost another case, the ACLU did last year in the NSA.
It was close, but we lost.
And the rules on the NSA, I mean, it's going to be a lot more litigation on it, but right now we've been losing consistently on NSA cases in the courts.
I see now it says here, by the way, Michael, that he was using a rule where he could try to short circuit the appeals process and go straight from regular federal court to the Supreme Court without stopping at the appeals courts in between.
So I guess maybe he'll have another shot at it.
Yeah, I guess so.
But it's going to be these cases are have not been easy.
It may be that in the current environment on the NSA, as we learn which ones of us have been surveilled, and there was an interesting story today.
I think it was Snowden basically made a statement in an online interview that NGOs such as Human Rights Watch, I think he mentioned, or like Human Rights Watch, he mentioned them both by name, were being surveilled.
That would include the Center for Constitutional Rights and all of us, which we suspected for a long time.
And we actually brought a case like that in front of the courts, along with the ACLU and others about our attorneys about Guantanamo.
And we got thrown out because we couldn't actually have a piece of paper that says we were that we were surveilled.
Now I think as we can get more exposure, perhaps from the Snowden documents, we will be able to perhaps go back into court on those.
But, you know, this country has been an Obama, one of the worst, just been terrible on this issue.
Terrible.
And it sounds like the federal judiciary exists only as a rubber stamp, like in a country that the U.S. State Department would make fun of and criticize and threaten to bomb probably.
The judiciary, as I pointed out in these four areas, has been a disaster.
And then there, of course, is now a secret court, the Foreign Intelligence Surveillance Act Court, which has only one side, the government.
And they've come out with all the rulings that internally that have expanded the NSA's ability to take in, for example, this phone call that I'm having with you right now.
Right.
Hey, by the way, what would be the best single ruling?
Oh, and real quick, too, I'm sorry, we're almost out of time, would be the best single ruling for proving what due process is supposed to mean, as opposed to the way Eric Holder says that if Obama mulls it over, that counts as due process.
Is it really defined in the dictionary specifically?
There are court cases defining it, but generally the court cases say you need a judicial process, not an executive process, to make due process.
That's what due process means.
You go through a court process.
Thanks so much.
We're all out of time.
I appreciate your time so much, Michael.
Appreciate it again.
Thanks.
Michael Ratner, everybody, President Emeritus of the Center for Constitutional Rights.
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