Guantanamo: "The Response" and Obama's State Department

Guantanamo is still open. People are starting to ask pointed questions. So far, the Administration doesn't have answers.

The French Embassy's cultural center in Washington, D.C. screened "The Response" Tuesday, February 16, for a crowd of about 220 - including many representatives of the military, legal, government, and media community. Screenings of "The Response" are supposed to stimulate engaged discussion, and this one succeeded.

French cultural center, Washington, DC

Most strikingly, audience members politely but firmly and repeatedly asking the question, "What is the Obama Administration doing to assure that more due process is used in handling of detainees?" The Administration's representative didn't have an answer. He was able to point to court decisions that require that more due process be provided to specific detainees. But it remains to be seen what the Obama Administration itself thinks the process should be.

As filmmaker Sig Libowitz stressed, "Although the film depicts a review process (the Combatant Status Review Tribunal or "CSRT") that dates from several years ago, it is important to remember that every one of the detainees remaining at Guantanamo is being held as a result of this process." Key aspects of the process are that the detainee does not have an attorney and is not allowed to see all of the evidence against him.

Panel participant Anthony P. Ricci, deputy to the Special Envoy for the Closure of the Guantanamo Bay Detention Facility of the U.S. State Department, spoke at length in answer to pointed questions from the floor, including,"Even after Guantanamo is closed and the detainees are in some new location [such as Thomson, in Illinois], what will be different in the process they are subjected to?" and "With the change from the Bush administration to the Obama administration, what is the difference in the process that is used to deal with detainees?"

It's important to stress that the film succeeds in stimulating this kind of discussion precisely because it takes pains to lay the issues out fairly and factually. One of the panel participants was Rob Kirsch, co-leader of the Boumediene v. Bush pro-bono legal team and senior partner at WilmerHale LLP. He told the audience that much of the dialog in the film's courtroom scene was taken verbatim from the proceedings involving his own clients, and that it made a chill run down his spine to see it re-enacted. Similarly, Tony Ricci commented that he, himself, had served in Iraq and participated in deliberations similar to those depicted in the film, and that the film's deliberation scene accurately conveyed the various threads in those discussions.

If the film is realistic in showing multiple sides of the issues, the panelists were similarly realistic in admitting why it is hard to deal with detainee issues. In particular, there continues to be great uncertainty among experts about the exact categorization that should apply to accused terrorists. On the one hand, it appears that experts tend to agree with the proposition that, "There is no such thing as someone who does not have a status under the Geneva conventions." On the other, there is unease about how to deal with conduct that goes beyond what we traditionally understand to be "criminal," and yet clearly doesn't fit established notions of "soldiers" that are state-based actors. A key participant in this aspect of the discussion was panel participant Rear Admiral John D. Hutson (ret.) former Judge Advocate General of the U.S. Navy and currently Dean and President, Franklin Pierce Law Center. As audience member and journalist Jamie McIntyre stated in his blog, "The movie’s biggest virtue: It plays it right down the middle and leaves it for you to decide what the U.S. response should be to an enemy who doesn’t play by our rules, and doesn’t want the war to ever end."

Nonetheless, the panelists were all in agreement that imperfections of current legal theory do not outweigh the need for fair treatment in real time for people who are currently detained. The consensus seemed to be, "Detainees must either be tried or be released." And if they are to be tried? "Try them as civilians."


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His exact words were: “It’s not sustainable . . . . The notion that we’re going to keep 100 individuals in no man’s land in perpetuity [makes no sense] . . . . . All of us should reflect on why exactly are we doing this? Why are we doing this?”

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My most prominent memory of my first viewing of the Guantanamo film, The Response, is of one of the stars of the film -- Kate Mulgrew of Star Trek fame -- participating in a panel after the screening. I was blown away when she said, "I did this because our civil liberties in our country have been gravely damaged and we all need to contribute to repairing them."

(See Understanding What Guantanamo Means)