In terror war, gray areas inevitably make for bad law

We know bin Laden was a terrorist, a mass murderer responsible for the Sept. 11 attacks on New York and Washington, D.C.

But what about other people captured in the war on terror, about whom we’re not so sure?

That question got a full airing Thursday atop the Regional Justice Center, as the annual Law Day brought students, attorneys and Supreme Court justices together to watch and discuss a very powerful film. "The Response," released in 2008, depicts a Combatant Status Review Tribunal, in which three Army officers struggle to determine whether a Muslim engineer detained for four years at the Navy base in Guantanamo Bay, Cuba, is an al-Qaida operative or not.

The movie — nominated for an Academy Award in the short film category — is based on actual tribunal transcripts, but its genius is that it assiduously avoids taking sides in the debate while giving the issues a full hearing.

"If anything, it’s at times like these when we need to hold on to the Constitution and the rule of law even harder," said Sig Libowitz, the film’s producer, writer and co-star. He teleconferenced in to the Law Day event from New York, along with judges, deputy district attorneys and Supreme Court justices who watched from Carson City and Winnemucca.

Libowitz said the essential message of his film isn’t changed by bin Laden’s death because there was little doubt as to the al-Qaida leader’s culpability in terror. But the film centers on a detainee held on seemingly scant evidence, although he’s told that classified information points to his guilt.

For students — few of whom said they would have voted to classify the detainee (played expertly by "The Daily Show’s" Aasif Mandvi) — as a terrorist, the film was troubling. The defendant’s inability to even learn the name of the person who allegedly accused him of participating in an al-Qaida plot to attack a U.S. embassy struck them as wrong. That’s especially true in light of the Sixth Amendment’s guarantee of a speedy and public trial by an impartial jury, to confront witnesses against him and to have the assistance of counsel for his defense. (At one point in the film, even a tribunal member remarks the proceedings not only violate the Constitution, but the Magna Carta as well.)

Libowitz told the gathering the hastily written rules for the tribunal were applied because of the unique circumstances. "After 9/11, everyone was very afraid of when the next attack would come, and what to do," he said. But even those rules — which allowed admission of evidence classified by the government, for example — were not enough: Libowitz said the Defense Department often held two or even three tribunals in cases where the members initially determined the accused was not an unlawful combatant.

Bin Laden’s situation did arise toward the end of the Law Day event, when District Judge Rob Bare, a former JAG officer, remarked that the American people didn’t know what had been done to extract the information that led to the terrorist leader’s death. "And look what happened," he said.

Nevada Supreme Court Justice Nancy Saitta asked whether it was worth the risk of improperly detaining a potentially innocent person for four years.

"This is real sad, there’s no doubt about it," Bare said.

Sad, and troubling, as well as a reminder that just because bin Laden is dead, the legacy of fear he inspired is still with us.

 

Steve Sebelius is a Review-Journal political columnist, and author of the blog SlashPolitics.com. His column appears Sunday, Tuesday, Wednesday and Friday. Reach him at 702-387-5276 or at ssebelius@reviewjournal.com.