Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Sometimes you find wisdom, or even just a welcomed new expression of an old, good idea, in the strangest places.
Last Friday night, one of the old-time movie channels offered up "Judgment at Nuremberg," the weighty 1961 movie about the famous Nazi war crimes tribunal. I began watching because of the movie's cast: Spencer Tracy, Judy Garland, Burt Lancaster, Richard Widmark, Montgomery Clift, Marlene Dietrich and Maximillian Schell. William Shatner played a young officer. Werner Klemperer, later Col. Klink from "Hogan's Heroes," played an evil villain.
Who could resist?
But I continued watching, hour after hour, because of the movie's message. It is resonant and relevant nearly a half century later, and perfectly befitting a week that saw not one but two federal appeals courts wrestle with some of the most contentious legal issues to arise out of the terror attacks upon America.
The film is about good judgment and bad judgment, evil choices and noble ones, and how a society reacts, or ought to anyway, to times of great stress. It ought to be required viewing for every government lawyer and policymaker as well as every federal judge who has to decide how our country will respond to the war on terrorism.
Written by screenwriter Abby Mann, here is what Spencer Tracy, who played the chief judge of the tribunal, says at the end of the movie: "There are those in our own country, too, who today speak of the 'protection of country' — of 'survival.' A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then, it seems, that the only way to survive is to use the means of the enemy, to rest survival upon what is expedient — to look the other way.
"Well, the answer to that is 'survival as what?' A country isn't a rock," Tracy continued as the camera panned from his craggy face to the other characters within the courtroom. "It's not an extension of one's self. It's what it stands for. It's what it stands for when standing for something is the most difficult! Before the people of the world, let it now be noted that here, in our decision, this is what we stand for: justice, truth and the value of a single human being."
A single human being like, whose lawyers were in federal court in Richmond, Va., last Thursday trying to convince the 4th U.S. Circuit Court of Appeals that al-Marri, like the "enemy combatants" before him, has gotten a raw deal from the government.
Al-Marri was born in Qatar and was living legally in the United States on a student visa on Sept. 11, 2001. At first, he was arrested and charged with fraud. Then, two years later, in 2003, he was designated by President Bush as a combatant and locked in a military brig, where he remains to this day. His lawyers say this is a mistake that has cost the man four years of his life.
Government attorneys, on the other hand, told the 4th Circuit that they believe al-Marri helped the 9/11 planners and intended to participate in some sort of subsequent chemical attack.
These are the same government lawyers who initially said that Enemy Combatant No. 1, Yaser Esam Hamdi, was such a threat to national security that he could not even talk to his attorneys — until the feds suddenly set him free.
This is the same government that initially said that Enemy Combatant No. 2, Jose Padilla, was a "dirty bomb" plotter bent upon exploding a radiological bomb — until he quite obviously wasn't and now stands as a civilian defendant in a shaky terror conspiracy case in Florida.
Or a single human being like Maher Arar, a Canadian citizen who was flying home from a vacation in 2002 when he was detained in New York and then deported by U.S. officials to Syria, where he was tortured.
Both the Canadian and U.S. governments were complicit in the "extraordinary rendition" designed to allow for the kind of interrogation that is not permitted by Canadian or American law.to Arar for the treatment he received. Our government has not. In fact, Arar is inexplicably still on our "no-fly" list, a status for which Sen. Arlen Specter, R-Pa., said this past week he would like an explanation.
Or a single human being such as Christopher Hitchens, the acidic journalist whose polemics I often despise. But his role as one of the named plaintiffs in the American Civil Liberties Union's landmark domestic surveillance case against the National Security Agency is a genuinely heroic one.
Last Wednesday, a panel of three judges on the 6th U.S. Circuit Court of Appeals heard government lawyers tell them that this challenge to the NSA'sand should be dismissed, because the White House last month decided to cut an oversight deal with the super-secret Foreign Intelligence Surveillance Act court.
Please let me be absolutely clear. I am not in any way comparing the legal positions our government has taken in the war against terrorism with the tyranny of Nazi rule. I am trying only to make the larger point (or the smaller point, depending upon your point of view).
In the movie, Tracy bravely and doggedly affirmed that he and America would stand up for each of the victims of Nazi tyranny, even if the harsh sentences imposed against the defendants were unpopular in Germany and thus a boon to the Soviets during the depths of the Cold War. Tracy's judgment, and therefore the judgment of the nation, was that we could and would do the moral thing, even if it weren't the most popular or politically expedient thing.
In real life, all of us will be judged by our grandchildren based upon how able and willing we are to show the world and our enemies that we will, in Tracy's words, "not employ the means of the enemy" and that truth and justice and fairness still have a treasured and preeminent role in this time of terror.
That test began on the morning of Sept. 11, 2001. It roiled to the surface this past week, and it's a challenge will be with us for a long, long time to come.
By Andrew Cohen
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