Tuesday, September 14, 2021
A couple of weeks ago Yale Law professor Samuel Moyn wrote a scathing and seemingly unfounded attack on the late Michael Ratner of the Center for Constitutional Rights in the New York Review of Books. I had considered posting about that piece here, but decided that it was too strange and awkward, personally blaming one man who had passed away five years earlier for the endless war on terror, to be worthy of additional attention.
However, Joseph Margulies and Baher Azmy’s response to Moyn in Just Security is more than worth a read. Margulies and Azmy, as practicing attorneys, litigators, present their point of view in light of their long careers and personal experiences working alongside Ratner.
In summing Moyn’s criticism of Michael Ratner, Margulies and Azmy state:
The idea is that by challenging detentions rather than the war itself…Ratner…validated the war on terror. And by smoothing down the roughest edges of the detention policy—providing detainees with a largely symbolic right of access to the courts, for instance—[he] gave a patina of legitimacy to what is at its core an illegal, immoral war, and in that way enabled our current quagmire of endless, boundless conflict.
Margulies and Azmy argue in response that “the idea that the detention litigation in general, or Rasul in particular, is somehow the reason the war on terror has become an endless, lawless monster is just silly” and also point out that “a person can obviously oppose war and torture at the same time, and Michael did both.”
They also point out that Moyn may also be “simply making the spectacularly banal point that litigation has unintended, and sometimes tragic consequences.” To that point, Margulies and Azmy respond:
But as our friend and Yale law professor Hope Metcalf says, “so what?” No experienced civil rights lawyer, and certainly not one as political as Michael Ratner, needs a law professor to explain that the courts are not a reliable friend of the weak. The insight that litigation by itself cannot achieve progressive change was old when Gerald Rosenberg put it in writing 30 years ago. And tying this observation to a larger political lesson—that power adapts to protect its interests—was old when Marx wrote it down nearly two centuries ago.
I think Margulies and Azmy also did a wonderful job of highlighting the best of what Michael Ratner did, which is what the best human rights advocates do best:
lending our voice to men whose voices had been silenced, and demanding that the law protect them when the state would not.