Yves here. Gitmo was and is proof that America’s claims that it stands for democracy and due process are hot air. So much of what happened there, most of all the routinized torture, remains shrouded in secrecy that the bits that come out deserve special attention.
It’s probably a naive hope, but perhaps the release of the movie The Mauritanian will help secure the releases of the remaining Gitmo detainees.
By Lisa Hajjar, Professor of Sociology, University of California Santa Barbara. Originally published at The Conversation
“The Mauritanian,” directed by Kevin Macdonald, is the first feature film to dramatize how the war on terror became a war in court.
As a sociologist of law and a journalist, I have spent the past two decades researching and writing about the kinds of legal battles the film accurately portrays. My research has included 13 trips to observe military commission trials at the U.S. Navy base at Guantanamo Bay, Cuba.
The film stars Tahar Rahim as a Mauritanian named Mohamedou Ould Slahi who is captured and held at the Guantanamo detention center, where many suspected terrorists were sent. Jodie Foster and Shailene Woodley play Nancy Hollander and Teri Duncan, Slahi’s attorneys. Benedict Cumberbatch plays Lt. Col. Stuart Couch, who is assigned to prosecute Slahi’s case.
Hollander is, in real life, among the hundreds of lawyers I interviewed for my forthcoming book, “The War in Court: The Inside Story of the Fight against Torture in the War on Terror,” from the University of California Press. This book traces the work of lawyers who fought the U.S. government over the post-9/11 torture program and how, against the odds, they won a few key battles and changed the way the United States waged the war on terror.
Challenging Secret Detention
In November 2001, after the events of Sept. 11, President George W. Bush’s administration issued an order creating a process by which people suspected of ties to terrorism would be detained and held, and potentially tried. This would not be the customary process, where they’d be tried in federal court, but instead before a new military commission system.
In December, the Guantanamo naval base was designated the main site for long-term detention and interrogation of men suspected of having ties to terrorism. Prisoners captured in Afghanistan and elsewhere began arriving there on Jan. 11, 2002.
Guantanamo was selected because it was under full control of the military and relatively close to the mainland, but outside the U.S. and therefore beyond the reach of American courts – or so the Bush administration assumed.
The idea was that if the detainees were not on U.S. soil, they would have no legal right to seek a judge’s order of habeas corpus. That principle is a centuries-old protection against unlawful imprisonment and a cornerstone of the rule of law. It allows a prisoner to claim he is being unlawfully held captive, and to require the government to prove to a judge that there is reason to continue to hold him.
Nearly everything about the detainees was deemed classified, including their names and the very fact that they were in U.S. custody. In February 2002, though, the Center for Constitutional Rights, a left-leaning legal organization, teamed up with two death-penalty lawyers, Joseph Margulies and Clive Stafford Smith, to file a habeas petition in federal court on behalf of several detainees who were known to be in Guantanamo.
That lawsuit demanded the U.S. government explain why it was holding those men. It was the opening shot of what would become a war in court. In June 2004, the Supreme Court ruled that Guantanamo prisoners did, in fact, have habeas rights.
That same month saw the publication of Justice Department memorandums and Pentagon policy directives exposing the fact that torture of terror suspects, including Guantanamo detainees, had been authorized by the White House. Together, the ruling and the documents, which became known as the “torture memos,” galvanized lawyers to volunteer to represent Guantanamo detainees. Their work involved searching for information to challenge the government’s basis for detaining their clients – including evidence that they were tortured in custody.
When that Supreme Court ruling came down, Slahi was one of the most “valuable” detainees at Guantanamo. He had been arrested in Mauritania in November 2001, at the request of the U.S. government, on suspicion that he had recruited Marwan al-Shehhi, one of the hijackers of United Flight 175, the second of two airplanes to hit the World Trade Center in New York City on 9/11.
Slahi was handed off to the CIA and then sent to Jordan, where he was brutally interrogated for seven months by Jordanian authorities in the service of global U.S. investigation into 9/11. In July 2002, the CIA sent him to the Bagram prison in Afghanistan before sending him to Guantanamo the following month.
Slahi’s case was one of the first slated for prosecution under the military commission system, which let prosecutors use evidence that would never be allowed in U.S. courts, including coerced confessions and hearsay.
Couch, the prosecutor, was personally tied to Slahi’s case because he was a close friend of the pilot on the plane that al-Shehhi had hijacked. He was told that Slahi had confessed to everything he was accused of. Couch insisted on seeing the evidence himself.
He would not like what he found.
Learning Dirty Secrets
When attorney Hollander met Slahi in 2005, she knew very little about him or his case, and had only a short window of opportunity to persuade him to sign a paper authorizing her to represent him. Her meeting, like other detainees’ talks with their lawyers, took place in the same rooms in Guantanamo where prisoners were interrogated, replete with monitoring devices.
Slahi, who had taught himself English while in detention, accepted Hollander’s help and began writing her long letters explaining what had happened to him – but as the film’s audience learns, not everything.
Hollander, even as Slahi’s lawyer, had to fight the government to get his case files, which at one time included more than 20,000 pages that were almost completely blacked out to hide information that had been classified, including details of Slahi’s detention and the circumstances of his confessions.
Torture and Lies
The movie’s climax comes when both attorneys – prosecuting and defending – get their long-sought documents. The pages reveal the big secret about Slahi’s case: He was brutally tortured on direct orders from Defense Secretary Donald Rumsfeld.
All Guantanamo detainees were subjected to abuse, humiliation and harassment as part of their interrogations. But Slahi was also subjected to 70 days of what the government called “special measures” – which included a mock execution in which he was taken out to sea in a boat and threatened with drowning.
His captors also constructed an elaborate deception that his beloved mother had been arrested and was on her way to Guantanamo where she would be raped by other detainees. Only after those experiences did Slahi begin to “confess” to every accusation laid against him.
Hollander knew the government would not want to make public the evidence that his alleged confessions were coerced through torture, and pushed harder for Slahi’s release. Part of that effort included publishing Slahi’s letters as a book, “Guantanamo Diary,” which became a best-seller.
Couch decided not to prosecute Slahi because the confessions wouldn’t pass legal muster. Accused by the chief prosecutor of being a traitor, Couch was one of several military lawyers who quit the military commissions for ethical reasons.
The Long Road Home
In 2010, Hollander’s fight paid off – or so it seemed – when a federal judge ordered Slahi’s release. But the Obama administration appealed, and it would be another six years before Slahi was allowed to return home to Mauritania. He spent a total of 14 years in U.S. military custody without facing a single criminal charge.
The movie has a happy ending, with scenes of the real Mohamedou Slahi home in Mauritania smiling as he reviews translations of his book into many languages – and with photos of him and one of the guards, who had befriended him, visiting in Mauritania.
But there is no happy ending at Guantanamo, which remains open. Of the 779 men and boys ever held there, 40 prisoners remain – including six who, like Slahi, were cleared for release years ago.
Can’t help but think that this all goes back to the malevolent presence of Dick Cheney in the White House back then. After 9/11, he was supposed to have said that “It will be necessary for us to be a nation of men, and not laws.” Where it all fell down of course was that he was the sort of “men” (and people like Rumsfeld and Rice) that would be substituted for the rule of law. In trying to show a sort of macho attitude to show off strength like a Jack Bauer, it really only succeed in showing their weakness of character. Cheney, for example, tried to show bravery but it was noted that he had the VP’s house blurred in satellite images in fear of any attacks.
The idea of hiding POWs aboard US Navy torture ships and places like Guantanamo Bay was that it could be claimed that no laws applied there as no information was reported from there to the public. Especially when it was stated that those captured men were not POWS in any case but “detainees”. It was a way to undertake war crimes with no consequences to the leaders that ordered it. News flash – laws apply everywhere though people like George Bush have never been called to account for their actions but instead have been redeemed by both the the right and the left.
The worse of it is that when you claim that some laws do not apply as a matter of geography and wordplay, there is no way to stop this type of thinking coming back home to roost. That is why the laws apply to everybody. Because if they did not, they would really apply to no-one. So defending the prisoners of Guantanamo Bay aka Hotel California was not a matter so much of defending their rights but defending the rights, laws and and ultimately the Constitution from people like Bush who said of the later “Stop throwing the Constitution in my face! It’s just a goddamned piece of paper!”
Definitely Cheney didn’t see or didn’t agree with the movie “A Man for All Seasons”:
I wonder if he saw the movie VICE?
Rumsfeld once bloviated about what we know, what we don’t know and what we don’t know that we don’t know.
I know he’s a war criminal and that if I believed in an eye for an eye…
The shining light on the hill, the indispensable nation, is a blood soaked ghoul.
Tell the average “Liberal” that the USA is not a Democracy and they counter that it is a Republic, tell them that the USA is a lawless oligarchy and they shake their head at you..
I’.ve been ashamed of my country since the Church Committee report came out and it was confirmed that the Gulf of Tonkin incident was a lie.
news about Con Son Island and reading “The
Politics of Heroin in SE Asia”. shook my faith, that report killed it.
First of all torture doesn’t work.
In general the person being tortured will do and say anything so the torturer is left with intel of limited value.
And torture has follow on effects –
It radicalizes the opposition and it in the end effects the torturer negatively,
And torture radicalizes the system or state.
If no accurate intel is gained by torture the system or state generally proscribes more torture which provides even dodgier intel. The rabbit hole never stops.
The torturers (and their bosses) knew it and know it. But they can then take the “confessions” and parade them in the public for their PR goals.
It’s not about real information, it’s about “the narrative”.
I read Slahi’s Guantanamo Diary when it came out, and I recommend that you pick up a copy. There are two things in the book that are hard to forget–one is the female interrogator, who was very high up in the ranks. When the assessments of Gina Haspel’s activities started coming in, I wondered if she had been detailed to Guantanamo because of her extra-special experiences. The second is that some pages are “redacted,” which is the current euphemism for censored. So you will enjoy the blacked-out words and the occasional blacked-out page.
Very often, U.S. films only exist if the story can be told from the point of view of an American narrator, and white narrators are preferred. You may want to “meet” Slahi himself through his writing.
I agree with the recommendation. It’s an informative and moving book. An unreacted and “restored” version has also been released. I read the redacted version, but imagine the restored redactions are as haunting a presence as the redacted pages are in the original.
The U.S. was involved with torture long before 9/11, but it was indirect involvement through U.S. client governments working with the CIA. After 9/11, this pretense ended and the American public now must face the reality of U.S. involvement with these crimes, which they have ignored for decades.
The establishment in Washington seems to have little actual belief in the principles America used to claim. These arrogant people seem to think they are immune to the human foibles that require laws to keep these weaknesses in check, and can disregard the lessons of the past. In general, the rule of law and the constitution have been eviscerated since 9/11.
I also think part of the reason for the lousy U.S. response to 9/11is the age of the decision makers. Many of these people are quite old. I doubt they are capable of much new or original thinking. The best they can come up with are crude actions such as torture and war.
The question is, how much of the US public actually really cares? I suspect that for a non-trivial part of the public, it’s “they deserved it anyways”, and for likely even larger part it’s “well, too bad for them, but I have my own problems”.
Someone once explained to me his “theory of turds”: one third of people will always do the right thing, one third will always do the wrong thing, and the last third could go either way. Anyway, I agree with you that many Americans accept torture, despite our constitution. FOX used to have a television show that was basically torture propaganda. No doubt these people don’t expect to face torture themselves. At the same time, there are also Americans that are concerned with human rights. We see this, I think, in the BLM protests and the Cancel Culture. The Cancel Culture has problems and gets criticized, but it does represent an attempt by people to fix a human rights problem, even if flawed. I think the pro-torture establishment is afraid of a public discussion of this issue, or other human rights issues. Maybe a majority of the public will say “No!”
Hey Tahar Rahim is a great actor–Foster too most of the time. Shailene I can take or leave.
Look forward to seeing this.
Yves, thanks for this. Nancy Hollander – played by Jody Foster – has been a close friend for decades, and a fine lawyer. Among her other cases she is particularly, and rightly, proud of Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006). After persuading a District Judge in New Mexico to enjoin the DEA from seizing ayahuasca (active ingredient, DMT) belonging to a society using it to get a spiritual high, she persuaded a panel of the very conservative 10th Circuit to affirm, a split majority (8 to 5) of the 10th Circuit en banc, and finally a unanimous Supreme Court. She tells the story that in the midst of her (only) argument in the Supreme Court, Scalia interrupted her and asked: “do you want to hear your winning argument?” – she paused for a second, and Breyer immediately spoke: “Just Say Yes.” A brilliant “war on drugs” reference.
I can imagine she has many tales to tell! Must be great to hear her recount them.