Unconstitutional: The War on Our Civil Liberties (2004)

Dan Devine

A film that sheds light on discrimination and energetically calls for a re-evaluation of U.S. priorities.

Unconstitutional: the War on Our Civil Liberties

Director: #241;a
Cast: John Ashcroft, George W. Bush, Donald Rumsfeld, Paul Wolfowitz
MPAA rating: Not rated
Studio: Disinformation
Display Artist: Nonny de la Peña
First date: 2004
US DVD Release Date: 2004-10-15

During the Nuremberg trials in 1946, former Nazi Reichsmarshall Hermann Goering explained how to bring a nation's people to do the bidding of its leaders: "All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country." Though Nonny de la Peña's Unconstitutional never cites Goering, it includes footage in which former U.S. Attorney General John Ashcroft (inadvertently) paraphrases the Luftwaffe-Chief, stating that those Americans who oppose the Patriot Act are "aiding terrorists."

The latest release from Public Interest Pictures and executive producer Robert Greenwald (Outfoxed: Rupert Murdoch's War on Journalism, Uncovered: The Whole Truth About the Iraq War, Unprecedented: The 2000 Presidential Election), de la Peña's documentary is not subtle. After the September 11th attacks, U.S. citizens were terrified, and the Bush Administration took advantage by pushing through the U.S.A. Patriot Act (the title stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism"), designed to extend the powers of the federal government to strong-arm the populace under the guise of improving national security. The film deploys a series of interviews to examine the failings of the Patriot Act, to show that the nation has traded Constitutionally protected rights in exchange for aggressive policies that both fail to increase security and endanger certain segments of our population (most especially Muslims, people with Arabic names, and pretty much anybody who isn't white).

De La Peña's straightforward approach is underlined in the 68-minute film's extras-less DVD release (save for the trailer, which, frankly, looks like a college freshman's PowerPoint presentation). Unless you're Michael Moore, documentary funding is difficult to come by, so the presentation may be driven as much by finances as philosophy, but the lack of additional material forces viewers to deal with the film in and of itself, without any supplementary material for dressing, which actually makes the film seem stronger and somehow more demanding.

Unconstitutional doesn't hide its political bias; though conservative former Congressman Bob Barr (Republican, Georgia) is a prominent interview subject and ACLU Executive Director Anthony Romero refers to the film as a "bipartisan view of the problems with the Patriot Act," it comes from the left harder than a Randy Johnson fastball. Yet, Unconstitutional succeeds on the strength and, yes, balance, of its storytelling. It moves agilely from discussion of the Patriot Act's Constitutional transgressions and commentary of dissenting legal and political experts to specific personal stories of those whose lives have been affected by the elongated arm of Ashcroft's law. Time and again, the film personalizes the theoretical trampling of civil liberties, snapping its argument into sharp focus.

Unsure what to make of the "hold until clear" policy, which enables the Justice Department to "detain" suspicious individuals for an indeterminate amount of time without due process of law? The film offers the story of Safouh Hamoui, a Syrian immigrant and Seattle convenience store owner detained (without being charged) for 10 months before INS officials admitted he was not a flight risk and could safely be released to his family. (The FBI cleared Safouh four days after his initial arrest, but he, his wife, and his daughter were all held even after being cleared.) Wondering how the U.S. is treating detainees at Cuba's Guantánamo Bay military compound? Listen to Azmat Begg tell the tale of his son Moazzam, a British national arrested (again, without being charged) while teaching in Pakistan, whose letters claim he has "been kept like an animal in a cage" with "no food, no water, no natural light, [and] no one to help me." In the face of such harrowing accounts of rescinded freedom, President George W. Bush's statement that all those detained under the Patriot Act are "bad people" sounds vague and hollow.

Unconstitutional touches on other infringements as well: the government's ability to investigate the library records and e-mail correspondence of any person without suspicion of or connection to a crime, the FBI's power to conduct "sneak and peek" searches and seizures of private property without timely notification by the Justice Department. But the most disturbing encroachment is that civil rights violations can also be perpetrated against naturalized U.S. citizens.

Take the case of José Padilla, a card-carrying American and Muslim convert who was arrested at O'Hare Airport in Chicago as a "material witness" in connection with the 9/11 attacks. When the Justice Department could not produce evidence in order to charge him, Padilla could no longer be held under the material witness statute, and was designated an "enemy combatant" under the laws of war. This enabled the Bush Administration to subvert U.S. and international law, holding him without due process or contact with his attorney. The Supreme Court recently ruled that enemy combatants do have the right to an attorney and access to hearings in courts of law, which has enabled Padilla's attorneys to re-file their charges against the government. This ruling may prevent such egregious imprisonments in the future, but for the meantime, José Padilla is still locked up in a Navy brig in South Carolina, and de la Peña's suggestion is that once the precedent for holding an American citizen has been set, then all of us, regardless of skin color or religion, are in danger of meeting the same fate if we make too much noise or borrow books by the wrong authors.

Showing the 9/11 footage most of us have worked to suppress, as well as images from Guantánamo Bay and Abu Ghraib that many would rather pretend didn't exist, the film puts faces and bodies to the nameless numbers victimized by the "War on Terror," whose stories are often buried underneath kinder, gentler photo opportunities and sports scores.

De La Peña dealt with similarly wrongheaded stereotyping in her acclaimed 1999 documentary, The Jaundiced Eye, the true-life horror story of a gay man erroneously accused and convicted of sexually molesting his five-year-old son. Though the scope of Unconstitutional is broader, her unyielding focus on both the facts of the case against the Patriot Act and the struggles of those unfairly targeted produce the same result: a film that sheds light on discrimination and energetically calls for a re-evaluation of U.S. priorities.





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