Monday, August 16, 2021

'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.


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:
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:

Monday, July 26, 2021

“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: