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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Joining Salim Shaheen, the most popular and prolific actor-director-producer in Afghanistan on his 111th no budget feature, Kronlund documents the week-long shoot and the events surrounding it. She crafts an insight into a larger than life persona, yet amidst the comedy and theatricality of Shaheen and his troupe of collaborators, she uncovers the heavier tones of the everyday reality of war and patriarchal oppression. If The Prince of Nothingwood will popularly be remembered for celebrating the creative spirit of its star, it is equally an important communication on Afghanistan, it's culture and its people. Alongside the awareness of the country cultivated by mainstream media news outlets, Kronlund's film offers an insight into a country that can humanise the prejudice and xenophobic tendencies of a western perspective towards Afghanistan.

In October of this year at the UK premiere at the BFI London Film Festival, Kronlund spoke with PopMatters about being driven by questions rather than inspiration. She also reflected on the subjective nature of documentary filmmaking, the necessary artistic compromises of filming in Afghanistan, and feeling a satisfaction with imperfections.

Why filmmaking as a means of expression? Was there an inspirational or defining moment?

Not really, no. I have always done documentary. I used to write scripts and TV series but I only make documentaries myself for radio and television. For this story, I figured out after a while that it deserved a bigger ambition and a bigger screen and that's why I don't very much believe in inspiration. To be honest, I made this film because I had to do something. I didn't have a big project where I thought: I want to make this. I went there and I found a little money and at the end the ambition and the inspiration came along the way. But there was not an urgent necessity to make this film. It fits with a lot of things that I'm interested in, like popular culture -- What does art stand for and why do we go to the cinema? What is the purpose? This is a question I'm interested in, but inspiration, not so much.

Has The Prince of Nothingwood provided you with the answers to those questions?

It has, and I hope it helps people to think about this question. It tells you that there is an urgent need to make images, to make films, even during war,and even if you don't have the money. And even if the films are not very good, they will find somebody who will like them. So something is going to happen, and I think that's very touching. I don't like Shaheen's films, I hardly watched them -- I paid somebody to watch them. But I'm very moved by all these people that do like his films, and it makes you think about the value of art and the purpose of why we make cinema. I used to study aesthetics in London, so it was one of the questions I had and while the film is lighter than this, that's what was in mind.

The film uses Shaheen as a doorway, beginning as a story about one man which becomes a story about Afghanistan, its people and culture.

Yeah, but it's not so much about Afghanistan and it's not my purpose is to say things about the country. There's one guy like him in Iran who makes cowboy movies in the Iranian desert and there's also a guy like that in Tunisia. I mean you have this person with an urgent need to film whatever they have under their hand and since it's war, then it tells you something about the war. But it's not so much interested in him.

There was a lot of editing, 148 hours that you haven't seen [laughs]. Making a documentary is really telling a story and I don't have any idea of objectivity -- it is my point of view on Shaheen. Some people say to me that they would like to show his films, that they really want to see his films, and I say: "You don't see how much I have edited. I show you the very nice parts of his films." People think he's a great filmmaker and that's the story I wanted to tell -- but I could have told another story.

To my mind, objectivity is a human construct, a falsity that does not exist.

Except mathematics maybe, and sometimes physics.

The purist opinion of documentary as objective is therein built on a faulty premise. From the subjective choices of the filmmakers that bleed into the film to the subjectivity of the subjects, it's not purely objective. Hence, it calls into question the traditional dividing line of the objectivity of documentary and the subjectivity of narrative fiction.

Totally! It's the editing, and why you chose this guy, how you film it and what you show, or what you don't show. It's not only subjectivity, it's storytelling. Not many people ask me about this, they take it for granted that it's the real Shaheen. But I'm not lying, I'm not saying things that aren't true, but I am telling a story, a fictional story out of what I filmed. I took scenes that happened one day and I put them with another story that happened three months later and that's why we had seven months of editing with three editors. So it was a lot of work.

One of the striking aspects of the film are the light and comedic moments offset by a darker and heavier sensibility, which include moments when, for example, Shaheen talks about arranged marriages.

We made 70rough cuts and there was one version we tested and you couldn't believe you were in Afghanistan. People would say: "Oh this is too funny. You don't see Afghanistan, it's just a bunch of crazy guys." I then said: "Let's put in a little more darkness." You then have to strike a balance and to me, if it's not perfect, I'm happy.

Shooting the film in a dangerous and volatile part of the world, was the approach that once you had enough footage you then looked to shaping the film in the edit?

It's not when you feel you have enough, it's finding a balance between security and artistic concerns. That's it. You have a plan and you have an agenda. There are things you want to do, but it has to be balanced with security concerns. The real story I was going to tell about Shaheen I found in the editing room and in the end, I only kept five days of the shoot. The whole film takes place in Bamyan (Province), nothing in Kabul, although I had weeks and weeks of footage there that I had to take away.

There's a moment when Shaheen asks if you are scared, which sees him verbalise our silent recognition of your boldness and courage to bring this story to the screen.

It's very difficult and it's not like you are walking in the street and there's a bomb. This is not what's difficult. The difficulty is to cope with your fear and to have rules and to follow or to not follow those rules. There are many foreign people that never go out at all in Kabul -- it is forbidden. You have British diplomats who do not even drive their car from the airport to the embassy -- they will take an helicopter that costs £2,000 each way. Then you have foreign people who walk in the street without a scarf -- these girls get kidnapped.

In between these you have Shaheen, who is telling me all the time that I'm too scared, because it's a man's value to be brave and he's a brave guy, there's no question about that. He was in an attack two weeks ago. There was a bomb in a Shia Mosque and he helped to carry out the bodies. So there's no kidding about the fact that he's a brave guy and he has to be because he's been fighting to make his films. But you are in the middle of this and I'm not a brave person at all and I don't think being brave is a very important question. It is, but I'm not brave, I'm very scared and so in the middle of all of this stress it's enough just to manage to not go crazy, or to not drink too much [laughs].

Salim Shaheen and Sonia Kronlund (courtesy of Pyramide Films)

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