The YouTube defense.

The law, lawyers, and the court.
March 28 2007 7:31 AM

The YouTube Defense

Human rights go viral.

Last month, a federal court in Virginia dismissed the appeal of Khaled el-Masri, a German man whom the Bush administration admits it mistakenly kidnapped and tortured in the CIA's "salt pit" in Afghanistan. I worked on the early stages of el-Masri's case in 2005. We had sound legal arguments and plenty of evidence. But the case was booted out of court when the CIA claimed that the litigation would reveal "state secrets," a doctrine that gives judges wide berth to dismiss lawsuits with little more explanation than "because I said so." The judge could have gone either way, but the broader social backdrop—public fear of another attack—largely defined the legal landscape, and we were sunk. Courts have pushed back against the Bush administration only tentatively, for they remain uncertain about the value of human rights in an age of terror. Fortunately for their cause, human rights lawyers are starting to understand how to put a thumb on the scale: YouTube.

As America's civil rights advocates knew well a half-century ago, lawyers are most successful when their legal arguments are attuned to broader social changes. When the NAACP went to court to end segregation in the South, it coordinated with groups staging sit-ins, knowing that the resulting public unrest would help shape Thurgood Marshall's legal victories in the courtroom. This strategy works because, right or wrong, judges keep an eye on the street. Internal notes from the Supreme Court's deliberations in Brown v. Board of Education suggest the justices spent less time discussing law than chewing over the state of race relations in the South. In fact, as law professor Michael Klarman points out, little relevant constitutional law had changed between Brown's ruling against segregation and Plessy v. Ferguson, the case that helped establish the "separate but equal" school regime. What had changed was the social context.

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During John Roberts' and Samuel Alito's recent confirmation hearings, senators and pundits debated whether the justices ought to try to gauge public sentiment. After all, critics say, the point of an unelected judiciary is to ensure fidelity to the Constitution, regardless of mass sentiment. In practice, however, judges (especially Supreme Court justices) have enormous discretion in how to resolve legal questions.  And in our culture of red alerts and public panic, judges naturally tend to privilege security over individual rights. It's been hard for human rights lawyers to counter this, a la Thurgood Marshall. That is, until YouTube. Now free online video can make stories of torture and abuse go viral. It's a new way to promote human rights norms, and it's changing the role of the human rights lawyer.

Adel Hamad, a 48-year-old Sudanese elementary-school teacher, has been held at Guantanamo for five years without charge or evidence of a crime. Although one of his military-tribunal reviewers described his detention as "unconscionable," his lawyers have been unable to convince a federal court to review his case. So, they created a five-minute movie about his story using handheld cameras and a computer and posted it online. Within one month, "Guantanamo Unclassified" was viewed more than 70,000 times, and twice as many people had visited www.projecthamad.org. The site is part of a fast-growing public campaign to eviscerate the Military Commissions Act, passed by Congress last year, which denied Hamad his day in court.

While Hamad may never see the inside of a U.S. court, the public attention to his case may have forced the government's hand. Just this week, the project told Hamad's supporters that the Department of Defense has added him to a list of people slated to be released from Guantanamo. This doesn't mean that every Gitmo detainee will soon have his own Web campaign—not all of them have a story as compelling as Hamad's or advocates as new-media savvy. After all, lawyers are trained to litigate, not stream video. But even that is changing. Harvard Law School recently revamped its curriculum, identifying creative "problem solving" as a core skill for young lawyers. Last semester, I sat in on a class that was taught partially in the online world of Second Life where, hokey or not, students practiced the art of public advocacy.

YouTube and its ilk mean that today anyone can tell human rights stories. And as Hamad's video shows, if the stories are told with enough brio and skill, the public will pay attention, and the government may be more likely to respond. Critics pooh-pooh the importance of all of this by pointing to the fact that civil rights advocates have traditionally had a friend in the press. But they're missing the point: YouTube goes where the mainstream media can't or won't go. It's visceral. It's story first, message second. And it gives advocates instant access to an audience in a way that press releases and op-eds never can.

Sometimes, that audience is a new one. People who are bored to death by the procedural objections to the detention of terror suspects at Guantanamo Bay will download advocacy videos like "Getting Waterboarded." One of the most-viewed movies on Current.tv, the clip was created by a former Marine who paid two friends $800 to waterboard him in his basement. It's got some of the qualities of gross-out TV. And yet nothing I've read about waterboarding has stayed with me like that video. It's an old movie-house trick: Capture their attention with the narrative, and slip the message in between the frames. ("Buy popcorn!" … "End Gitmo!")

Of course, this can cut both ways. At the same time that viewers download the stories of human rights victims, they watch 24, which depicts the war on terror as the triumph of might over right (or right over law). As The New Yorker recently explained, 24 has had a sizable impact on our national-security culture. That's why human rights advocates need to get in the game.

Seeing the success of 24, advocacy groups have lately turned to the master storytellers of Hollywood. Participant Productions, a film company founded by eBay bazillionaire Jeff Skoll that says it's "changing the world one story at a time," garnered 11 Oscar nominations in 2005 and won two in 2006, all for cause-driven movies. Each of these films was produced side-by-side with a social campaign. They include: Syriana (oil dependence); North Country (sexual harassment); An Inconvenient Truth (global warming). Not surprisingly, Amnesty International (which backed Blood Diamond) just opened an office in Hollywood, and the Center for American Progress is about to as well. The impact of cultural advocacy is hard to measure, but these groups want to make the most of every opportunity.

As user-generated outlets like YouTube grab an ever-greater share of the media market, human rights activists will increasingly depend on online tools to change the cultural landscape and with it, they hope, the legal one. In the meantime, look out for films like Rendition—the tale of an Arab man kidnapped and tortured by the CIA, staring Reese Witherspoon, Jake Gyllenhaal, and Meryl Streep—which opens this fall. Khaled el-Masri, who couldn't get a judge to listen to his story, is coming soon to a theater near you.

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