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. 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.
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.
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, 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...
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.