Since the publication of UNLIKELY ALLIES, many readers have encouraged me to write a screenplay about how a merchant, a playwright and a spy saved the American Revolution. So last week I found myself in Napa at the Northern California Screenwriters Expo pitching UNLIKELY ALLIES to Hollywood producers. 

Surrounded by other aspiring screenwriters I felt more than a little intimidated. There were so many people from all walks of life full of inspiration and hope. As we waited to pitch our ideas to the jaded Hollywood crowd, I sat with a grey-haired single mom nervously paging through a script on her lap about a middle-aged divorcee struggling to raise a family. I talked to a cheerful homeless man who had scrapped together just enough money to pay his registration fee so that he could pitch an idea for a sci-fi movie. I met a young man with a brilliant smile who had travelled up from Mexico with a terrific idea for a romantic comedy.

We discovered that the film business has never been tougher. In the Great Recession Hollywood isn’t taking any chances. Dramas, science fiction, and romantic comedies are too risky to try to sell to audiences overseas or to the “target U.S. demographic”: 16-24-year-old boys. All Hollywood wants to see is another Avatar – something with lots of action that doesn’t require much of its audience and can be easily translated into Spanish or Chinese. That’s why you can’t find anything worth watching at the Cineplex on a Saturday night.

Yet, despite the chilly reception we received from the Hollywood crowd, what struck me was how hopeful these aspiring writers felt even in the face of slim odds. Was there ever a country so populated by dreamers? What is it about our national character that we grow up believing that anyone can win the lottery?

The founders of our nation declared the inalienable right to “the pursuit of happiness.” What other country was founded on such a promise? What the founders meant was the right to pursue one’s aspirations to better oneself and to provide greater economic opportunities for one’s family. Is the pursuit of happiness still possible in America?

Even before the Great Recession began the economic opportunities for most Americans have been closing. Over the last thirty years the average income of Americans has come up only 12% in real terms. At the same time, the average income of the wealthiest .01% of Americans has risen 400%. During the Bush years 8 million Americans lost their jobs, and now unemployment remains stuck at 9.7%. Today, one in four American homes is worth less than the outstanding mortgage.

The American Dream had been on life support for at least a decade. That may explain the fascination with shows like American Idol that hold out the hope that anyone can realize their dreams in America. Against all odds we still grasp onto the founders’ promise.

President Obama’s health insurance reform bill is a small step in the direction of trying to help the average family survive the vicissitudes of life so that they can pursue their dreams. More must be done quickly to generate jobs and open up educational opportunities if we are to preserve our American tradition.

As for UNLIKELY ALLIES the movie, well, we’ll see. But if you have a friend in the business let me know. I still haven’t given up on the pursuit of happiness.

The ninth circuit federal court of appeals in San Francisco has held that former Attorney General John Ashcroft is personally liable for illegally detaining American citizens after 9-11. The court’s decision represents a stunning victory for the principle that no one is above the law.

The ninth circuit’s opinion arose out of a case brought by an American citizen born in Wichita, Kansas, to parents of U.S. citizenship. His given name was Lavoni Kidd. He was a football star at the University of Idaho. Sometime in college he decided to convert to Islam and changed his name to Abdullah al-Kidd. In 2003 al-Kidd received a scholarship to study Arabic and Islamic law at a university in Saudi Arabia. On his way to Saudi Arabia al-Kidd was approached by federal agents at Dulles Airport and arrested. He was not charged with any crime. The government claimed that al-Kidd was a material witness in the criminal trial of another Islamic man he knew at the university, who was being prosecuted for visa fraud. The government claimed that al-Kidd was fleeing the jurisdiction and that he had a one-way $5,000 business class ticket on him. In fact, al-Kidd was travelling on a $1700 roundtrip coach class ticket, and he had left his wife and children behind in Nevada.

It turned out that the government never had any reason to call al-Kidd as a material witness. It was merely a pretext for detaining him. He was detained for more than two weeks, subjected repeatedly to humiliating body searches, kept in a brightly lit high-security prison cell 23-hours per day, and handcuffed and shackled whenever he was moved. For fifteen months after his release from federal prison the government required him to remain at home in Nevada, limit his movements out of the house, surrender his passport, and report regularly to a probation officer.

Al-Kidd sued Attorney General Ashcroft with the help of the American Civil Liberties Union (ACLU), alleging that as a consequence of his detention, he lost his job, his opportunity for study abroad, and his marriage.

As attorney general John Ashcroft authorized the use of the federal material witness statute to detain Islamic men whom the Justice Department thought might possibly be terrorists. But the material witness statute was not intended for preventative detention, which is generally prohibited by the Constitution. The federal statute only allows the government to detain a person who is a material witness in a criminal trial for a temporary period if the government reasonably believes that there is a likelihood that the witness might otherwise disappear while a trial is pending. The men detained by Ashcroft were not necessarily material witnesses to any pending criminal trials.

In the law suit Ashcroft made the extravagant claim that as attorney general he was absolutely immune from civil liability. The Supreme Court has said that federal prosecutors may have absolute immunity from a narrow class of claims arising out of a prosecutor’s actions in court. But the Supreme Court has made it clear that this is a very limited exception and that prosecutors are not immune for illegal actions or decisions that take place outside of a courtroom.

In its decision in al-Kidd v. Ashcroft, the ninth circuit reaffirmed this traditional limitation on the absolute immunity of prosecutors. In this case it’s clear that Ashcroft made a policy decision to use the federal material witness statute as a license for preventative detention of Islamic and Arab men. It had nothing to do with prosecuting crime in court; it was merely a tool for waging the war on terror.

The Framers of our Constitution did not permit arbitrary or preventative detention, even of persons who might be thought dangerous. The generation that fought the American Revolution was not naïve about foreign risks to our domestic security. They certainly understood the vulnerability of a democratic society to spies and saboteurs, as my book UNLIKELY ALLIES attests. But the Framers preferred to err on the side of personal liberty rather than to create a police state that might be safer, but stultifying.

In this regard the Framers of our Constitution were choosing to protect liberties that were not necessarily protected by the British Constitution. Britain was much more inclined to sacrifice the rights of British citizens to serve the cause of state security. In UNLIKELY ALLIES the French Foreign Minister Vergennes wryly observed that “only a government as free as England’s would be so suspicious of its own subjects.” That was precisely what the Framers did not want to happen in America.

Our Founding Fathers revolted against arbitrary rule and fought for the proposition that even the king’s representatives in the colonies should be held accountable for their actions. The ninth circuit has struck a blow against arbitrary government. In doing so it has opened up the possibility of more claims being brought against other former government officials who established or implemented anti-terrorism policies that were exceeded the limits of our Constitution. The full scope of the Bush Administration’s chilling excesses in the war on terror is carefully chronicled in Jane Mayer’s excellent book, THE DARK SIDE. After reading Mayer’s well-balanced account, I am more grateful to our Framers than ever that under our Constitution, our leaders will be held to account for their abuses of power.