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In the Eye of the Beholder

Ben Wizner,
ACLU Speech, Privacy, and Technology Project
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July 29, 2008

(Originally posted on Daily Kos.)

It was movie day at the military commission trial of Salim Hamdan — or rather, in the government’s words, “motion picture presentation” day. The motion picture in question was The Al-Qaida Plan, a 90-minute video commissioned by the Pentagon for use at military tribunals and prepared and presented by one Evan Kohlman, a 29-year-old self-described “International Terrorism Consultant” who has been dubbed “the Doogie Howser of Terrorism.” The purpose of this exercise was to allow the prosecution to present a stockpile of footage depicting bearded Arabs firing guns, charred bodies, gruesome beheadings, and the September 11 carnage — even though every single government witness to take the stand has testified that Hamdan had no role in the planning or execution of any terrorist attack, let alone 9/11.

Kohlman — who studied Al Qaeda in college, does not speak Arabic, has no graduate degree in a relevant field, and has never traveled to Afghanistan or Pakistan — is the kind of witness who might (ok, did) gravely intone: “Unfortunately, I know Bin Laden’s voice better than I know the voices of my own family members” — and who described another Al Qaeda member as “currently dead.” And The Al-Qaida Plan is the kind of film that can present an entire chapter about the rise of the anti-Soviet mujahedeen in Afghanistan without a single mention of the U.S. role in funding those fighters. (Even Tom Hanks and Julia Roberts know better. Still, Kohlman assured the commission members that all of his work was “carefully footnoted.”

He made The Al-Qaida Plan at the government’s request and expense, and its title — chosen by Kohlman and the prosecution — is expressly derivative of the The Nazi Plan, a film that was shown at the Nuremberg tribunals. (That film required only 45 minutes to catalog the Nazi horror, but then again, 9/11 changed everything.) You might think that the government would be less eager to invite comparisons to Nuremberg. Can anyone imagine those historic proceedings commencing with the prosecution of Hitler’s driver? In fact, that driver did appear at Nuremberg: as a witness, not a defendant. As commenter Gary Norton pointed out on Saturday, he was never charged and evidently died of old age.

As it happens, The Al-Qaida Plan was not the first movie I saw at Guantánamo this week. On Friday night, a few of us went to see the new Batman movie, The Dark Knight, at Guantánamo’s Downtown Lyceum, a free, open-air movie theater. (We were glad to see the presiding military judge, Navy Captain Keith Allred, taking in the scene as well.) The picture was poor and the sound quality even worse, so I missed a fair amount and decided to read some reviews.

The Dark Knight, it turns out, is a kind of Rorschach test. Andrew Klavan, in a Wall Street Journal op-ed, makes the claim that the film is “a paean of praise to the fortitude and moral courage that has been shown by George W. Bush in this time of terror and war.” (No, I did not make that up. Click the link, but be forewarned: reading Klavan's piece might make you dumber.) Meanwhile, over on AlterNet, Michael Dudley sees a film that “reveals the supposed existential crisis of the ‘war on terror’ for the cruel and dehumanizing proposition it is.”

In much the same way, critics and defenders of the Guantánamo military commissions seem to be observing two entirely different trials. Prosecutors and Pentagon public affairs officers are quick to point to recognizable hallmarks of a fair trial system: Hamdan has superb lawyers, for example, and his guilt must be determined beyond a reasonable doubt. I, on the other hand, might emphasize certain departures from ordinary criminal trials, like the unique and extraordinary fact that Hamdan is already serving an effective life sentence as an “enemy combatant,” and may be detained until the “cessation of hostilities” in the “war on terror” — whatever that means — even if he is somehow acquitted. Or, that military commission rules permit a defendant to be convicted on the basis of evidence that has literally been beaten out of him and other prisoners.

On Tuesday, Evan Kohlman and The Al-Qaida Plan will face cross-examination by the defense, and observers will have one more chance to experience pride or shame, tragedy or farce.

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