'To Seek Justice’: The Mauritanian and Prosecutorial Responsibilities

Films and other creative mediums can bring much-needed attention to significant legal issues. In my previous post, I explored how the film, The Mauritanian highlights the importance of the legal right to counsel. Building on this, the film also offers other important insights, including with respect to the roles and responsibilities of prosecutors. In serious cases such as those involving allegations of terrorist activity, there is typically immense pressure on prosecutors to obtain convictions. These pressures trigger vital concerns about the strategies and tactics government lawyers (and interrogators) might employ to secure a conviction. What are some ethical limits and considerations on prosecutorial conduct? Can prosecutors use whatever methods they see fit to prosecute a suspected terrorist? For example, can they withhold information from an accused? Can and should prosecutors seek to admit evidence secured through torture? The Mauritanian illustrates some of these concerns raised by these questions.

 

 

To recap, the film depicts Mohamedou Ould Slahi’s harrowing experiences (including torture) as a prisoner who was detained at the United States military detention facility in Guantanamo Bay, and his protracted legal battle to be freed from custody.[1] Slahi (portrayed by Tahar Rahim) spent over a decade in detention and was finally released in 2016. He was first taken into custody in 2001, and then detained in Jordan, Afghanistan and finally, Guantanamo Bay. His eventual release was due in no small effort to the tremendous pro bono work of his legal counsel, Nancy Hollander (played by Jodie Foster) and Teri Duncan (depicted by Shailene Woodley). 

 

The Bush administration (2001-2009) alleged that Slahi recruited some of the individuals who were responsible for the violent attacks of September 11, 2001, and the thousands murdered, injured and traumatized due to these attacks. The government assigned the task of prosecuting Slahi to Lieutenant Colonel V. Stuart Couch (portrayed by Benedict Cumberbatch). The film delved into Couch’s journey from someone seeking the death penalty for Slahi, to his doubting the way in which evidence was secured (through torture), whether a conviction could be obtained, and importantly whether it should be. As depicted in the film, Couch’s commitment to prosecute Slahi and see him executed was in no small part due to Couch’s personal relationship with one of the commercial airline pilots who was murdered when Al-Qaida members hijacked and took control of United Airlines flight 175, and then flew the plane into the south tower of the World Trade Center.[2]

 

That a prosecutor may experience doubts about a case or an accused’s guilt, shouldn’t be problematic even though this may fly in the face of what people see in popular culture. For example, in adversarial legal systems, one imagines two or more parties vigorously litigating a matter – a type of civil(ized) combat. However, there are actual limits as to what lawyers can do while representing their clients in pursuit of a legal victory. Lawyers are bound by codes of professional responsibility and may be disciplined for breaching ethical rules.

 

It is noteworthy that prosecutors have heightened responsibilities that their counterparts on the defence side do not share. This isn’t surprising. Criminal prosecutions are different from civil cases. Prosecutors are not just supposed to seek a conviction and a harsh sentence as their prizes. As one justice of the Supreme Court of Canada explained many years ago: 

 

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. […] The role of prosecutor excludes any notion of winning or losing; [their] function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.[3]

This principle has been articulated in other jurisdictions. For example, section 3.8 of the Illinois Rules of Professional Conduct of 2010 states that, “The duty of a public prosecutor is to seek justice, not merely to convict.” The American Bar Association’s Model Rules, which have been adopted across various states, does not refer to this specific duty,[4] but the ABA’s Criminal Justice Standards (2017) at standard 3-1.2(b) provides:

The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. […] The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants. [emphasis added]

Such rules/standards highlight that prosecutors have unique responsibilities. Nevertheless, following these tenets may not be a priority for every prosecutor, and even when they are, there may be immense pressure to cut corners in ways that undermine such duties. The Mauritanian depicts Lieutenant Colonel Couch’s challenges in abiding by these norms in the face of opposition by his superior and other government actors.

In the film, Couch is urged to proceed with Slahi’s prosecution with some haste and notwithstanding the limited information and evidence that he and his team are given. The problem is that the evidence is inconsistent and lacking in detail, such that corroboration by prosecutors is not possible. For instance, while Couch’s prosecution team were given summaries regarding the interrogations with Slahi, information regarding the identities of the many interrogators, the techniques used, and when the statements were made, were not disclosed to them. Couch is advised by his friend, Neil Buckland (played by Zachary Levi), who is also an intelligence officer, that the details Couch is seeking can be found in memorandums for the record (MFRs). These are created for the intelligence community and not for legal prosecutions. At various stages in the film, Couch seeks access to the MFRs and is consistently rebuffed. Indeed, he is told that everyone already knows what the 9/11 terrorists did. For Couch, making a successful case against Slahi required his team to corroborate all the evidence they held and planned to use, given that they were pursuing the death penalty. In a meeting with his subordinates, Couch instructs them “to be exacting, thorough. We are seeking the death penalty. But if we miss something, this guy goes home.” 

Due to Couch’s efforts to be exacting and his persistence in acquiring the MFRs, he finds his own government’s unwillingness to share information with him to be frustrating and confounding. In one scene at a holiday party, Couch and Buckland have a tense exchange. Couch advises that without the MFRs, his case is a bust. Buckland responds, “You're overthinking this, sport. Either wear the jersey or get off the field.” Couch reminds Buckland that it’s not just about team loyalty, but the lack of proper evidence has serious consequences. In response Buckland speaks of getting justice for “Bruce”, Couch’s pilot friend who perished on 9/11.

 

Couch: My charge is to get Slahi the needle. No one else is going to walk him there. Not you, not POTUS, that’s on me. And if I’m wrong, when it comes to my reckoning, I’m the one who'll have to answer for it. 

Buckland: And who’s going to answer for Bruce? 

 

Couch: [incredulous] You’re going to bring his name into this?  

Buckland: No, no, no, you don’t know what we know. United flight 175, based on evidence gathered from the wreckage, the first thing those terrorists did - was slash up a flight attendant to elicit the co-pilot, Bruce, to open the cockpit door and come to her rescue. And then they slit his throat with a box cutter and let him bleed to death on the flight deck as the plane hit the tower. Now someone has to answer, for that. 

 

Couch: Someone... not just anyone. Happy fucking holiday.

Crucially, this exchange conveys the responsibility of a prosecutor to see that justice is done and not to secure a conviction of just anyone. This means, obviously, that only a person who has actually committed the relevant unlawful act or omission (actus reus) should be prosecuted and convicted. Vengeance is not an appropriate reason to pursue a conviction, and more severely, the death penalty.

 

Following the encounter at the party, Buckland arranges to allow Couch to review the MFRs concerning Slahi’s confessions in a sealed room. Couch learns that not only was Slahi physically tortured, but he was told that his mother would be brought to Guantanamo Bay and be subjected to rape by other prisoners if he didn’t confess. Furthermore, the techniques were authorized by then-Secretary of Defense Donald Rumsfeld. Recognizing the inadmissibility of the evidence and how unreliable the confessions were, Couch decides that pursuing Slahi’s prosecution was untenable, as a lawyer and as a Christian. He confronts his superior, Colonel Bill Seidel. The following is their exchange:

 

Couch: What’s been done here is reprehensible! 

Seidel: I don’t want to hear another word about detainee treatment. Your job is to bring charges. Let the judge decide what’s admissible. 

 

Couch: Sir, I refuse to prosecute this case. As a Christian, as a lawyer...[6]

 

Seidel: [shouts] What makes you think you're better than the rest of us? 

Couch: I don’t think I'm better than anybody else, that is the point! Now we all took an oath, to support and defend the constitution. At the very least, we are miles away from that.

 

Seidel: [approaches Couch and gets up into his face] You’re a traitor.  

 

Couch: [astonished] What?

 

As this exchange suggests, a prosecutor’s responsibility isn’t simply to bring a case forward regardless of how the evidence was procured and its lack of reliability. While it is a court’s responsibility to assess the admissibility of the evidence, prosecutors also exercise judgment about whether unconstitutionally obtained evidence should even be offered, and furthermore whether the case should be pursued solely based on such evidence. Undoubtedly, there are many times when it is a close call as to whether the methods employed to secure a confession or other evidence violate constitutional norms or common law rules. However, there are moments when the methods employed are blatantly illegal. In such cases, does a prosecutor proceed all the same, and bow to pressure from superiors? In addition to the answer being “no”, the Mauritanian illustrates that Couch’s refusal to do so amounts to an act of resistance, for which he is labelled a “traitor” by his superior officer.  

 

In my previous post on the right to counsel, I addressed how The Mauritanian emphasized the importance of defence counsel in upholding the rule of law. The film also leaves with its audience, the principle that prosecutors similarly possess this solemn function, despite institutional and political pressures to do otherwise.

Notes

1. Slahi’s story was set out in his book, Guantanamo Diary in 2015. The book was heavily redacted by the United States government. That same year, The Guardian produced a documentary based on Guantanamo Diary and featured interviews with his lawyer, Nancy Hollander and others. See “Guantánamo Diary: torture and detention without charge”, online: https://www.youtube.com/watch?v=YozKFwQKq_0.

 

2. For considerations of space, I’ll leave aside the oddity of a government lawyer prosecuting someone allegedly involved in the murder of the lawyer’s own friend and how that might compromise their judgment.  

 

3. Boucher v The Queen, [1955] SCR 16 at 24, Rand J concurring [emphasis added]. While the Model Code of Professional Conduct, produced by the Federation of Law Societies of Canada, does not specifically include this principle in its provision on duties of prosecutors (section 5.1-3), it is incorporated in the commentary: “When engaged as a prosecutor, the lawyer’s primary duty is not to seek to convict but to see that justice is done through a fair trial on the merits.”

 

4. Though rule 3.8 of the Model Rules does stipulate that, “The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause ….”

 

5.  President of the United States.  

 

6. The film highlights Couch’s identity as a self-identified Christian and how this informs his decision-making. It’s worth noting that however laudable Couch’s conduct may have been with respect to Slahi’s prosecution as depicted in the film, such ethics were not always at the forefront when Couch acted in other roles. See Noah Lanard, “Judge Promoted by Trump Administration Threatened a 2-Year-Old With an Attack Dog” Mother Jones (10 September 2019), online: https://www.motherjones.com/politics/2019/09/judge-promoted-by-trump-administration-threatened-a-2-year-old-with-an-attack-dog/.

“Everybody Has the Right to Counsel”

Through storytelling, producers of popular culture can remind us of various things we may take for granted, including our legal rights and their importance. In connection with the criminal justice system, one particularly significant legal entitlement is the right to counsel. The value of this right was highlighted in the 2021 film, The Mauritanian. 

 

 

The film depicts Mohamedou Ould Slahi’s harrowing experiences (including torture) as a prisoner detained at the United States military detention facility in Guantanamo Bay, and his protracted legal battle to be freed from custody.[1] Slahi (portrayed by Tahar Rahim) spent over a decade in detention and was finally released in 2016. He was first taken into custody in 2001, and then detained in Jordan, Afghanistan and finally, Guantanamo Bay. His eventual release was due in no small effort to the tremendous pro bono work of his legal counsel, Nancy Hollander (played by Jodie Foster) and Teri Duncan (depicted by Shailene Woodley).

 

The importance of the right to counsel was driven home in a few key moments in the film. In one scene, Hollander and Slahi have a terse conversation about his confession and why he signed it if he didn’t commit the acts alleged (i.e. recruiting 9/11 hijackers). In explaining that he was coerced into making this confession through torture, Slahi demands to know why Hollander wants to continue defending him if she thinks he’s guilty and a terrorist. She responds, “Everybody has the right to counsel.” She asserts this as something inviolable regardless of the crime alleged – as it should be. But there’s more.

 

The inviolability of one’s right to a lawyer is reinforced in another scene with a reporter interviewing her about her representation of Slahi. After being asked about how she reacts when someone calls her a terrorist lawyer, Hollander answers,

 

When I defended someone charged with rape, nobody called me a rapist. When I defended someone charged with murder, no one dug around my backyard. But when someone’s accused of terrorism, people like you seem to think that’s different. It’s not. When I stand by my client, and I insist that he gets a fair hearing, I’m not just defending him, I’m defending you and me. The Constitution doesn’t have an asterisk at the end that says, ‘terms and conditions apply.’

 

Upholding an accused’s constitutional rights therefore isn’t just about defending a particular client. In the process of defending their client, a lawyer upholds everyone’s right to a fair process. A case isn’t just an isolated matter. It is part of a larger system and series of practices. The failure to uphold a client’s rights emboldens and invites state actors to continue infringing individual rights and for some prosecutors to defend such behaviour.

 

The Mauritanian also reinforces the notion that defence counsel has a role in defending the rule of law. In one exchange between Hollander and the lead prosecutor, Lieutenant Colonel Stuart Couch (played by Benedict Cumberbatch), the responsibility of upholding the rule of law is pivotal and supersedes defending unsavoury clients, especially those accused of terrorism. Couch inquires of Hollander, “Let me ask you. I understand everyone has a right to a defence, but doesn’t it bother you at all, working for someone like this?” Hollander replies, unflinchingly, “I’m not just defending him, I’m defending the rule of law.” The rule of law requires the state to conduct itself in accordance with the law and not have its agents engage in torture, and certainly not benefit by using incriminating statements generated through such techniques.

 

While many may take the role of criminal defence lawyers for granted, or indeed view such persons pejoratively (especially when the accused/detainee is suspected of an offence connected to terrorism), the film reminds viewers of the vital function that these advocates play. The role of defence counsel isn’t just to argue that the prosecution has not discharged their burden to prove guilt beyond a reasonable doubt (e.g. because the client didn’t commit the act alleged, the client didn’t have the appropriate mental state even if an act was committed, or the client had a valid defence). Among other things, a defence lawyer’s role also includes making the case that their client be released on bail pending trial (which has a corresponding impact on plea negotiations), demanding disclosure of evidence in the possession of the state, challenging the admission of illegally obtained evidence, or advancing the best case for an appropriate sentence even if guilt is determined. In jurisdictions where individuals have a constitutional right to have lawyers present during a police interrogation, they can serve as an important bulwark against skilled police interrogators by reminding their client of their right to remain silent. Even in situations when an individual hasn’t been charged but has been detained nevertheless, the role of counsel is also vital in forcing the detaining authority to justify the person’s detention through habeus corpus applications. This was the context in which Slahi found himself.

 

Of course, despite the best efforts of defence counsel, there are other actors in the legal system. Upholding rights isn’t just the responsibility of defence lawyers, courts play a crucial role through their rulings as (notionally) impartial and independent adjudicators. In addition, prosecutors have certain ethical and professional responsibilities, and the manner in which they conduct themselves affects the rights of accused/detainees. On the role of prosecutors, The Mauritanian also has something to say on this. I’ll likely follow up on this latter point in a future post.

 

 

[1] Slahi’s story was set out in his book, Guantanamo Diary in 2015. The book was heavily redacted by the United States government. That same year, The Guardian produced a documentary based on Guantanamo Diary and featured interviews with his lawyer, Nancy Hollander and others. See “Guantánamo Diary: torture and detention without charge”, online: https://www.youtube.com/watch?v=YozKFwQKq_0.

 

 

Sullying the Process: Sully and the Construction of the National Transportation Safety Board

Setting the Scene

Producers of popular culture love a good legal battle. It makes for a riveting storyline. Courtrooms tend to embody the quintessential sites where legal conflicts come to a head. Yet, as many in the legal community are aware and as law students come to learn, courtrooms are not the only venues where disputes and controversies are hashed out and hopefully resolved. There are any number of legal controversies that are litigated and/or investigated outside the courtroom. Enter the magical and diverse world of administrative law.

Administrative law is a rather complex area of study and practice. It concerns a wide variety of decision-making processes. As societies have become more complex, governments have created a plethora of decision-making and dispute-resolution regimes that specialize in and possess expertise on a broad number of subject matters – e.g., immigration, homeland security, transportation, labour relations, social security, environmental protection, regulation of professions, regulations of sports, and the list goes on.

Administrative bodies come in various forms – government departments, tribunals, boards, specialized courts, commissions of inquiry, etc. Administrative agencies/actors engage in a range of conduct. For example, some formulate broad rules and regulations that are or appear legislative in nature. In that capacity, they may consult a broad spectrum of people with a wide range of interests – including those impacted by the potential rules, other stakeholders and experts. Other agencies/actors engage in adjudicative functions, which may resemble to varying degrees judicial proceedings. Some of the more well-known administrative processes of an adjudicative nature include adversarial proceedings before US immigration judges, or litigation of labor disputes before labor relations boards or arbitrators. In such settings, there are two adverse parties with an impartial decision-maker deciding the matter. Other adjudicative proceedings may be more inquisitorial in nature, with the decision-maker participating in the gathering of evidence by posing the actual questions to a party or parties appearing before them.  

As a teacher of administrative law (and a law and popular culture scholar), I am always fascinated to see how films or television series present administrative proceedings as part of their storylines. In particular, I am interested in how these productions speak to matters of procedure (not the sexiest of subject matters to be sure). Administrative proceedings, even those that replicate an adjudicative setting, are not courts of law. Rules employed in courts of law, including the rules of evidence and rules of civil procedure are relaxed in administrative proceedings. Still, there are nevertheless rules/norms of practice/procedure that decision-makers are expected to adhere to. There are any number of sources for such rules – the constitution, statute, regulations, as well as the common law. They may relate to issues of basic notice, discovery and disclosure of information possessed by an agency or other third parties; participatory rights during a hearing; the ability to have counsel present during questioning; as well as the right to have access to reasons upon which a decision is based. Not all proceedings will permit the presence of counsel during a hearing, the ability to participate in proceedings, or access to possibly relevant information. Most members of the public are not aware of these matters for obvious reasons.  So, when films present administrative proceedings as part of their narratives, what educative role can they play about the decision-makers, the body itself, the manner in which decisions are made and their function(s)?

In recent years, two films, Sully (starring Tom Hanks) and Flight (starring Denzel Washington) have presented or constructed proceedings before the United States’ National Transportation Safety Board (NTSB). The NTSB is an administrative body created by the United States Congress. Among its many functions, the NTSB investigates airplane accidents occurring in the United States – indeed it is mandated to do so by law. Both films involve airline accidents.

Sully is based on the real life events of US Airways Flight 1549, which, following take off from La Guardia Airport, experienced a collision with a swarm of Canadian geese. Some of the flock flew straight into the engines causing total or near total shutdown. Consequently, the pilots, Captain Chesley Sullenberger and first officer Jeff Skiles were forced to make an emergency landing in the Hudson River (separating Manhattan and New Jersey). The incident took place in mid-January 2009 and was highly publicized. Much less so were the NTSB proceedings that followed, until they became a central feature of the film.  

Flight, by contrast, was a fictional story. Due to mechanical failure, an airplane piloted by Denzel Washington’s character was forced to engage in an unorthodox maneuver to stop a rapid and steep descent by flying the plane upside down. The plane is able to halt its vertical descent and fly horizontally before crash landing in a field. Though some perish, most of the passengers and crew survive. Washington’s character pulled off a miracle; however, he was also high on narcotics and intoxicated during the flight. The film in part features whether he can avoid having this disclosed, the consequence of which may lead to criminal liability.  

In this post, I want to examine how Sully, in particular, explores the nature of administrative proceedings and what it might teach us about them. Because Sully is based on real life events, I not only want to examine how the film constructs the nature of the proceedings, but also how the proceedings transpired in real life based on transcripts/footage. While Sully may have accurately depicted the events leading to and including the air strike with the geese, followed by the emergency landing in the Hudson River and subsequent rescue by first responders, the proceedings before the NTSB are something else entirely. It might be safe to say that they are indeed completely fictional. Accordingly, I want to examine what we can learn about the depiction of the NTSB proceedings, even if fictional, as a teaching moment regarding the importance of participatory rights and disclosure of information. Second, I shall argue that this fictionalization, however dramatic and entertaining on one level, problematically misrepresents the nature of such proceedings in the viewing public’s mind more generally, but also in connection with what happened in this case specifically.

To provide some clarity to readers, when I use the term Sully in italics, I am referring to the film itself. When referring to the film representation of Captain Sullenberger, I shall refer to the character as “Sully” without italics. Lastly, when I refer to the real-life Captain Sullenberger, I shall refer to him as “Sullenberger”.

Depicting the NTSB Process 

A primary feature of Sully is the investigation of the landing in the Hudson River. At the core of the investigation as presented in the film is the necessity of landing the plane in the Hudson as opposed to flying back to La Guardia Airport or an alternative airport in New Jersey. As part of this second-guessing of the pilots, NTSB investigators indicate that computer simulations demonstrate that Sully could have flown back to La Guardia or Teeterboro Airport in New Jersey. Just prior to the hearing, Sully is seen requesting that human piloted flight simulations be undertaken. At the hearing, live streamed video shows two simulations where pilot crews successfully land at La Guardia and Teeterboro respectively. Immediately following this, the following scene transpires where the character Sully makes a number of important points and poses certain questions of the NTSB. The following clip illustrates this.

Through this scene, which as I will demonstrate later is fictional, some important administrative law principles arise. First is the importance of participatory rights and the ability to speak to the administrative decision-maker. Here the character Sully is able to confront and challenge the NTSB panel on its willingness to rely on rather faulty evidence in questioning his decision to land the plane on the Hudson River. He does so by pointing out that the pilots in the simulators have been given the information beforehand about what is to happen and where they were expected to fly to immediately after the bird strike. Sully is able to correctly advise that this removes the human element of what it is like in that cockpit at the time of the strike and the need to make some allowance for reaction time to assess what has transpired and should happen. Furthermore, as part of this confrontation, Sully is able to elicit information about how many attempts the pilots were given before getting these simulated landings right. Further to Sully’s intervention, the two flight simulation teams are directed by the panel to attempt landings after 35 second delays following the bird strikes (to account for circumstances similar to what Sully and Skiles faced). In both instances, the landings were portrayed as unsuccessful. One of the attempts is depicted here:

It is worth noting that not every administrative proceeding or investigation, more generally, permits participation of those being investigated through oral hearings. To the extent that any participation at all is allowed in various administrative processes, this may be limited to written representations even where the stakes for the individual are important.

In addition, the scene also illustrates the value of disclosing information. Disclosing information allows a person who is the subject of proceedings to understand, among other things, the case to be met. As Sully illustrates, it allows a party to contextualize certain data and its overall value. In the film, armed with the number of practice runs the simulator pilots were given, Sully is able to cast doubts on the validity of the successful landings depicted. Put another way perhaps, Sully is able to argue how the flight simulations shown and the reliance by the Board on these successful landings are entirely de-contextualized. Ultimately, the audience is given the message that without these opportunities to participate and seek disclosure of certain information, Sully and Skiles would be faulted for their decision to land in the Hudson. 

Framing the Problem

Whatever broader insights Sully provides on procedural rights, there are nevertheless problematic aspects in terms of its representation of the NTSB. As noted above, the depiction of the proceedings was unrealistic, if not entirely fictional – this refers not just to the actual dialogue between Sully and the panel, but also the general tone in which the questions were asked. Sully portrays NTSB investigators as openly second-guessing Sully’s and Skiles’ decision to land on the Hudson. But there is more to it than just presenting the NTSB panelists as disrespectful and arrogant. The panelists withheld information about the numerous attempts made by the simulator pilots to land the planes at the designated airports. It was only after Sully seeks disclosure during the hearing that the information is revealed. It almost harkens to instances where government prosecutors in criminal trials have failed to disclose exculpatory information to defendants or defence counsel.

The film’s fabrication of what transpired during the hearings was substantial. One need only read the transcripts or watch footage from the hearings to see that the manner in which Sullenberger was actually treated in the hearing was much different than that which was portrayed in the film. Indeed, NTSB member Robert Sumwalt, who chaired the hearing and who was himself a former commercial airline pilot, praised Sullenberger for his cool and professional mindset, which helped land the plane into the Hudson. At one stage Sullenberger asserted the following:

But I think both Jeff Skiles and I have done this long enough and trained long enough to have internalized the values of our profession and to have learned what needs to be done, and so we quickly acknowledged our bodies' innate physiological reactions, set it aside and began to work on the task at hand.

In response, Sumwalt posited:

And I think that is so important. I'm trying to get an idea of what your mindset is and how you were there. I can contrast you to a crew that we looked at recently that I mentioned the captain said he was ambivalent. They had an engine fire 800 feet AGL and it took about three and a half 16 minutes before they completed the checklist, which should be a memory item, should be done immediately. So I want to be able to bottle your mindset and be able to make sure that everybody is drinking from that same bottle.

Notably, this type of language hardly suggests skepticism regarding Sullenberger or Skiles and their decision-making that day. Chairman Sumwalt also observed in his concurrence in the final NTSB report the lack of available options but to land the plane in the Hudson. The NTSB report clearly pointed to the fact that the probable cause for the landing was the bird strike and the consequent damage to the engines. Sumwalt articulated that the reason for his concurrence was as follows: “I would like to amplify why I believe this event was a “forced landing on water” rather than a “ditching.”” He argued that the NTSB’s understanding of a ditching involved a planned component where the crew knowingly lands on water. Ditching allows for some time to prepare. By contrast, Sullenberger and Skiles had very little time. Sumwalt states the following:

There was only one minute, fifteen seconds from the time the captain told the air traffic controller that he couldn’t make Teterboro Airport and uttered those bone-chilling words, “We’re gonna be in the Hudson,” until the actual touchdown. 

I question whether having one minute, fifteen seconds is sufficient to consider a landing as “planned.” I believe they reacted to their only viable option and landed where they could, instead of a “planned water event in which the flight crew… knowingly attempts to land in water.” 

Testimony from the public hearing indicated that there are unique attributes of a planned ditching that include the flight crew going through checklists, preparing the cabin crew, and having the passengers prepared. In the case of US Airways 1549, the crew didn’t have time to go through the ditching checklist, they didn’t have time to prepare the cabin, and the passengers were not prepared for the water landing. 

For the above reasons, I believe US Airways 1549 was a forced landing on water as opposed to a ditching. 

This point aside, whether we call this event a forced landing or a ditching, the objective of this investigation and its ensuing report is to help improve the outcome should future crews find themselves in the situation faced by this crew. The report produced by staff does exactly that. Therefore, I support the report’s findings, probable cause, and recommendations. 

During the film, the NTSB hearing focused on the flight simulations. The NTSB film panel, as depicted, stressed how questionable it was for Sully and Skiles to land in the Hudson River when the simulations showed the possibility of flying back to La Guardia or Teterboro airports. During the actual hearing, the flight simulations didn’t receive much attention. Indeed, when it did come up as a topic for discussion, this is an example of what was said by the Hearing Officer Robert Benzon when summarizing the results of the investigation up to the point:

During the course of the investigation, flight simulations were conducted. These flight simulations revealed that a successful return to LaGuardia or a diversion to Teterboro Airport was not assured. 

Both in content and tone, this is hardly the makings of the inquisition that the film seemed to portray. It's worth noting that Benzon and others were decidedly unappreciative of Sully's portrayal of the NTSB's investigation (see here and here).

So why does all this matter? Why should anyone be concerned about the film’s portrayal and construction of a relatively obscure federal administrative body? Films have the ability to construct and imagine groups of people in manners that other mediums may not. Noted law and film scholar Orit Kamir posits the following:

films are overwhelmingly influential, playing a key role in the construction of individuals and groups in contemporary societies. They reach enormous audiences and, combining narratives  and appealing characters with visual imagery and technological achievement, can stir deep emotions and leave deep impressions. Leading viewers through cinematic judgments constituting notions of justice, equality, honour and gender, films can be extremely effective in moulding public actions and reactions.

  

Here the construction of individuals and groups relates to those at the NTSB who worked on the investigation of the US Airways more specifically. However, at a broader level of construction, it relates to those who conduct such investigations more generally. The NTSB carries out important work which seeks to find causes of accidents, prevent future accidents, and worse still tragedies where there are human losses. This is important work that pursues a public safety and protection role. The general public’s exposure to the NTSB’s work is likely to be fairly limited, so when there is some representation/portrayal of its proceedings in popular culture productions, these relatively few depictions may have an impact on molding public reactions to its value. It might be fair to state that there is already an undercurrent of animosity to the idea of administrative oversight/regulation more generally. Witness the popularity of conservatives and libertarians railing against “Big Government”. Portrayals of surly and antagonistic administrative actors, as we see in Sully does little to allay such negativity. It only fosters a corrosive pessimism surrounding the need for and value of such bodies. Such pessimism may very well extend to other administrative bodies as being populated by incompetent, duplicitous, and/or vindictive hacks. The fact that Sully is purported to be based on real life events that are in the public’s knowledge only makes it more plausible that the depiction of the NTSB investigation and the hearing might be viewed as also being reflective of true events.

There are obvious commercial reasons for portraying the NTSB investigation and hearing in the manner that it was in Sully. As noted above it makes for a great (legal) drama. It pits a protagonist and obvious hero against a villain, here a federal administrative body. Here, Sully as David, must face off against two Goliaths. The first Goliath is represented by the circumstances he faces and the daunting task of saving the lives of those on board the plane. The second is the NTSB board, which actively seeks to second guess and impugn his decision. Perhaps we don’t often imagine administrative officials as heroes, but it certainly is easy as the film demonstrates to mis-characterize them as villains. In Robert Benzon's perspective in response to the film, he posited the following: “We’re not the KGB. We’re not the Gestapo. We're the guys with the white hats on." It hardly matters that the names of the NTSB investigators in the film, including Benzon's, were all fictional (though it may certainly matter to the actual individuals). It does certainly matter to the institution and the public’s respect and understanding for the value of its work. Sully did them a disservice.