I started work at Liberty, the civil rights advocacy group, the day before the September 11 attacks. I recall the feeling of doom: it is important to remember the devastating loss of life on that day – 3,000 people from all over the world – in an event that is now often subject to denialist conspiracy theories. Soon after, British ministers were contemplating far-reaching “security measures” against the background of fear that the same could happen in London. Surveying the entire population was a price worth paying, they said.
Having worked at the Home Office before joining Liberty, I knew the that way Britain treated migrants – who are subject to fewer protections than citizens – might well become the framework for the UK’s draconian approach to anyone suspected of terrorism. But I never predicted how long the post-9/11 legacy would linger. And with my Hollywood ideals of Anglo-American constitutional norms, reflected in movies such as A Few Good Men, I never imagined that the use of torture would become a systematic technique of interrogation.
This September will mark 20 years since 9/11 and the start of the “war on terror”. So the imminent UK release of The Mauritanian, based on Mohamedou Ould Slahi’s 2015 bestselling book Guantánamo Diary, is timely.
Kevin Macdonald’s film tells of Slahi’s 14-year imprisonment without charge in the facility now emblematic of human rights abuses, as well as the violent and sexual torture he experienced at the hands of his interrogators. It dramatises the legal battle that led to his eventual release in 2016. Tahar Rahim plays Slahi and Jodie Foster is his renowned defence attorney, Nancy Hollander. Benedict Cumberbatch is prosecutor Lt Colonel Stuart Crouch. It is a must-see, not least for the generation that remembers neither the New York skyline before September 2001 nor the transatlantic legal landscape before that horror.
The Mauritanian has been compared to A Few Good Men, the 1992 classic about a military trial that also emerged from an injustice in Guantánamo Bay. “You can’t handle the truth,” shouted the infamous Col Nathan Jessup (Jack Nicholson) in court. But one stark difference is that the Aaron Sorkin-penned drama existed in a world in which the system could be plausibly portrayed as ultimately sound, ultimately good. It was before George W Bush’s defence secretary, Donald Rumsfeld, declared “the new normal”, and the UK’s prime minister, Tony Blair, announced that “the rules of the game are changing”. Guantánamo was just a US naval base and inspiration for a catchy Cuban folksong. Two great democracies had yet to mortgage their souls with practices of kidnap, internment and torture.
Disappointingly, even Barack Obama, a constitutional lawyer before he became the 44th US president, broke a campaign pledge to shut down the prison that once held 780 people, and incarcerates 40 to this day. There are hopes that President Joe Biden will finally honour that promise. Obama may seem saintly compared with who followed him. Still, he presided over an escalation of the US’s drone strikes programme and the infamous White House “kill list”.
When the brilliant US human rights lawyer Amrit Singh describes Guantánamo as “paradigmatic of the lawlessness and exceptionalism that characterises post-9/11 US policy and practice”, I think of desperate caged people on the Mexican border. Injustices that are perpetrated abroad eventually come closer to home. Hollander tells me that, even now, “9/11 is the excuse to broaden the definition of material support for terrorism, to restrict immigration and speed up deportation; and as we have seen in Guantánamo, to indefinitely imprison people without ever charging them with any crime”.
The torture sequences in The Mauritanian are mercifully fleeting, as if in remembered nightmares. However, at a moment when Boris Johnson’s government is trying to limit the law’s reach in regard to future overseas operations, it is important to remember the denials and then apologies in relation to the UK’s own complicity with torture.
More positively, there were and continue to be military lawyers on both sides of the Atlantic who fought back against the shredding of legal norms – at personal cost. Lt Col Nicholas Mercer was the British army’s senior lawyer in Iraq before being effectively blocked and bullied out for his commitment to treating prisoners humanely. In the movie, Crouch begins by working towards the death penalty for Slahi. But his discovery that Slahi’s confessions have been obtained by torture change everything for the US army prosecutor with deeply held principles of justice.
Those who defend civil liberties lost a great many moral arguments in the UK. Yes, we won the landmark Belmarsh case: in 2004, the House of Lords ruled that indefinite detention for foreign nationals (but not British ones) suspected of “links” with terrorism breached the vital principle of non-discrimination in the Human Rights Act and European convention on human rights. That was in no small part down to Britain’s own Hollander, the great civil liberties solicitor Gareth Peirce. But far from being expunged as an aberration, the principle of punishment without charge or trial continued via control orders, then terrorism prevention and investigation measures and a host of other anti-terror, immigration and even criminal justice measures that infected minds and statute books, displacing the previously almost sacred “golden thread” of presumptive innocence for the accused. Today, the description “activist lawyer” is a term of abuse and the government threatens to roll back even the principle of judicial review itself.
Maya Foa, director of Reprieve, reminds me that the “war on terror” never ended. She points to north-eastern Syria where tens of thousands of European people – most of them children – are detained in inhumane and degrading conditions, instead of being repatriated and prosecuted (where appropriate), in what has been dubbed “Europe’s Guantánamo”. Like offshore incarceration, depriving one’s nationals of citizenship is another attempted loophole in the responsibility for affording due process.
“My client, he’s not a suspect. He’s a witness,” says Foster’s Hollander at a crucial moment in the narrative. We, too, have been the witness to a slow and steady evacuation of principles from Anglo-American justice over the past 20 years, as the use of Orwellian double-speak (“detainee” rather than prisoner, “enhanced interrogation” rather than torture) tried to blur the lines between victim, suspect and perpetrator. The Mauritanian may reach the right conclusion, with Slahi winning his personal freedom, but we still have a long way to go before we recover what we’ve lost.