Mohammed, the so-called mastermind of the 9/11 attacks, is one of the many unseen stars of the plot. It is supposed to be his nephew -- "Ammar" in the film, Ali Abdul Aziz Ali in real life-- who is tortured in the film's opening scenes. Both the nephew and the uncle were caught ten years ago, in case you forgot, in the spring of 2003, before the torture of Iraqi prisoners at Abu Ghraib was exposed to the world. Today, as Steve Coll points out in The New York Review of Books, both men now are prisoners of Gitmo fighting the charges against them.
And, fighting, also, to introduce at trial proof of the torture chronicled in the film. One of the defense motions before the military judge this week consists of a request by lawyers and investigators to spend a few days at one of the CIA's off-the-books sites to evaluate the conditions in which their clients say they were confined. The Obama Administration, which Coll writes "reportedly authorized" some of its officials to talk to the film's scriptwriter, has shown no such penchant for transparency when it comes to these human rights lawyers.
It's unlikely that the presiding judge would grant defense access to places that the feds want to continue to pretend don't exist. It is even less likely that the feds would obey such an order if it were to be issued. It's not like the Justice Department and the Defense Department are in lockstep these days. This month, we learned that the Pentagon wants to withdraw a dubious conspiracy charge against Mohammed while the Justice Department wants to proceed with a similar charge in another case. The boys over at Lawfare declared themselves "stunned."
I'm rarely stunned anymore by the positions taken by these public servants when it comes to the rights of the detainees. By refusing to proceed with the conspiracy charge, by dutifully heeding the ruling of a federal appeals court, Brig. Gen Mark Martins, the chief prosecutor of the military commission, is engaging in precisely the sort of honorable conduct which made Lt. Cmdr Charles Swift a hero a decade ago when as defense attorney for Salim Hamdan he challenged the Bush-era tribunal rules. Kathryn Bigelow ought to make a movie about that.
Or a movie about how the choices made by Bush officials before 2004 -- to torture prisoners, to set up a blatantly unconstitutional tribunal regime, to paper over America's conflict with international law -- have stymied their successors for a decade now. Brig. Gen Martins says that progress is being made at Guantanamo, slowly but surely, but there is still no trial date set for Mohammed and it will be years following such a trial before the federal courts have resolved his case. He may be in detention for 20 years before he is fully adjudicated.
Or a movie about how hard two successive administrations have tried to block accountability and transparency for torture policies. The same White House which refused to commission a blue-ribbon panel to look into the issue, or even to prosecute unrepentant intelligence officials who destroyed evidence that was under the jurisdiction of a federal judge, is barely breathing hard as it argues now that evidence of torture (never mind access to sensitive sites) is irrelevant to the charges against the men and too highly classified to be introduced into court.