Origins: Maryland Law
When Sig Libowitz took Professor Michael Greenberger’s “Homeland Security and the Law of Counterterrorism” seminar at the University of Maryland School of Law, the last thing he expected was to end up developing a film based on material about Combatant Status Review Tribunals (CSRTs) he would discover during the course.
Greenberger doesn’t use a textbook in his class for the simple reason that there isn’t one. Legal issues relating to homeland security, the war on terror and the treatment of suspected enemy combatants are the new legal frontier — it’s law that’s being made now. As in right now. The Supreme Court and the lower federal courts are attempting to navigate a path through constitutionally complex issues dealing with international law, the Geneva Conventions, and the fundamental nature of the American system of justice; In the process, the courts often contradict each other, the Bush Administration, and Congress. And while extraordinary times call for extraordinary measures, some fear that our civil liberties and values are at stake. In this setting, what is the proper balance between individual rights and national security?
Suspected “Enemy Combatants”
The genesis of the project was a court case dealing with the treatment of the suspected “enemy combatants” transferred to Guantanamo Bay. The case marked an important, though little known, turning point in the American “war on terror”. “When I taught this case in class I saw Sig in the back of the room and his eyes were getting wider and wider,” Greenberger remembers. “When class was over he came up and said, ‘I think there’s a movie here,’ and I said go for it.’”
The rules of Guantanamo's Combatant Status Review Tribunals (CSRTs) are very different from a regular civil trial or even a military court martial. In a Combatant Status Review Tribunal (CSRT), there is no jury, no defense attorney, and no rules of evidence with which most Americans would be familiar. Three military judges act as both judge and jury. The defendant is not provided an attorney. Instead, he is given a "Personal Representative", a military officer who is not an attorney and with whom the detainee cannot share any confidential information. The Personal Representative is duty bound to report anything his "client" says to him. The detainee is not allowed to see the classified evidence against him, nor is he allowed to know the names of his accusers if that information has been classified.
Digging into the Transcripts
“When I read the transcripts of what was really going on down in Guantanamo, I thought, this is amazing. Before reading the cases, I thought I had a pretty good sense of what was going on down there. I figured I read the papers, I watch the news— but I was just stunned,” says Libowitz. “It led me down a path, both of curiosity and creativity. Then as I dug deeper, I saw that the issues and the people weren't nearly as clear-cut or onesided as I was told to believe. That led to investigating the rationale of both sides, of all sides, because there are more than just two, and I saw that we don't get anywhere by simply demonizing each other. These are the most fundamental questions we can ask ourselves: Who are we as a society and how do we want to respond to the horrific acts of terror that took place on September 11th? Because how we respond determines who we are and, perhaps more importantly, who we want to be.”
Greenberger, a former Justice Department counterterrorism official, explains that the treatment of detainees in military tribunals has caused a heated debate over whether habeas corpus — guaranteed in the Constitution as an individual’s right to question their detention before a judge — has been been violated.
“Before the filming, Peter Riegert asked me, ‘What is habeas corpus?’” said Greenberger. “And he’s an intelligent, very well read man. We’re all asking ourselves about an issue that was thought to be resolved as a fundamental tenet of democracy in 1789. It’s so much a part of the fabric that we’ve never gone back to analyze it again.” Libowitz next approached Dean Karen Rothenberg, who also saw the potential of the film. She agreed to shepherd the project through the university’s innovative Linking Law and the Arts program, which uses the arts to explore and open up discussion around complex ethical and social issues. “The Response presents some of the most important questions at the core of our constitutional democracy in a compelling and accessible way for a broad audience,” says Dean Rothenberg.
Courtroom Drama, Not Agit-prop
"From the moment of that first conversation, Dean Rothenberg got what the film was about," recounted Libowitz. "She's very creative, and she liked that the film would not be one-sided agit-prop, but rather a courtroom drama that explores the uncertainty and the high-stakes of the issues that the characters are facing. From there, the law school and its students got very excited by the possibilities of bringing these issues to life, and we sort of turned the law school into a mini studio. Everyone donated their time and energy to the project."
For his screenplay, Libowitz used numerous transcripts from the Combatant Status Review Tribunals (CSRTs) (months of research yielded several hundreds of pages of additional Combatant Status Review Tribunal (CSRT) transcripts which were used in the creation of the screenplay) and fashioned them into the fictional story of one particular detainee — Al Aqar, a Ph.D. engineer who has studied in the West. The government has accused Al Aqar of being a terrorist and a bomb maker. Shackled and chained to the floor, the detainee is questioned by three military judges — Colonel William Jefferson, Colonel Carol Simms, and Captain Joshua Miller — who must decide his fate.