Yunus Rahmatullah's unlawful detention? UK should have tried harder
What can the UK government do about a terrorist suspect held indefinitely and apparently unlawfully by the United States? Not much, – even when the suspect in question was detained by British troops.
On that, the court may well be right. But surely we could have tried a little harder? That's the view taken by two members of the court in a persuasive minority judgment.
The man whose fate has been considered at three different levels by a dozen of the UK's most distinguished judges is Yunus Rahmatullah, 29, a Pakistani citizen. He was detained in February 2004 by British troops operating in an area of under US control, nine months after the end of major combat operations.
Rahmatullah is believed by the US to be a member of Lashkar-e-Taiba, a proscribed organisation affiliated to al-Qaida. The US says he travelled from to Iraq "for the express purpose of engaging United States and coalition forces in hostilities".
Within a few months the US transferred him to Afghanistan. He has now been held in detention at Bagram air base for more than eight years. , which has been working for his release, he is in a "catastrophic mental and physical shape, and now spends most of his time in the mental health cells".
The US says it is willing to return him to Pakistan provided "appropriate security assurances" can be provided. His continued detention suggests Pakistan has been unable to provide them.
On behalf of Rahmatullah's family, Reprieve instructed lawyers to seek a writ of habeas corpus ad subjiciendum et recipiendum (literally, "that you have the body for submitting and receiving"). As the Latin suggests, the writ has its origin in the Middle Ages. In simple terms, it requires anybody who is detaining a prisoner to justify that detention. Originally, the prisoner had to be brought before the court; since about 1780, the decision on release has been made in the prisoner's absence.
It is a powerful writ, summed up by Lord Kerr, who gave the , in two pithy sentences:
"If your detention cannot be shown to be lawful, you are entitled, without more, to have that unlawful detention brought to an end by obtaining a writ of habeas corpus. And a feature of entitlement to the writ is the right to require the person who detains you to give an account of the basis on which he says your detention is legally justified."
Habeas corpus is a flexible remedy and the writ doesn't have to be addressed to the individual guards who are detaining a prisoner. All that's necessary is for it to be sent to someone who is in a position to order the prisoner's release.
And who might that be in this case? For the writ to work, it must be someone within the court's jurisdiction. That jurisdiction clearly includes the UK government. Equally clearly, it does not include the US authorities.
So Rahmatullah's lawyers had to persuade the courts that the UK had some say in whether he should be released. They based that on a memorandum of understanding signed by the US, Australia and the UK in March 2003, three days after hostilities had begun. That gave the UK a say in the transfer of prisoners from Iraq, although it turned out that Rahmatullah was transferred to without the UK's knowledge.
The supreme court provides detailed analysis of that agreement in its . Kerr concludes that there was ample reason to have believed that a request by the UK government for Rahmatullah's return would have been granted by the US, not least because he was entitled to the protection of the Geneva convention governing prisoners of war.
That was the view last December. So the supreme court unanimously dismissed the government's appeal against that decision.
In the supreme court's view, Rahmatullah's continued detention by the US authorities is – on the face of it – unlawful. But the US does not regard the Geneva conventions as applicable to al-Qaida combatants. And it refused to grant the request made by the UK for Rahmatullah's return to UK control. Instead, the US said it was considering a request from Pakistan for him to be sent there.
Given that approach, the that there was nothing more it could do. In legal terms, there had been a "sufficient return to the writ". That decision has now been upheld by a majority of the supreme court.
The leading judgment in the court of appeal had been given by Lord Neuberger, who has since become president of the supreme court. As he said in February, the "melancholy truth" was the UK authorities had "sold the pass" when they handed their prisoner over to the US.
Obviously, Neuberger had no say in the supreme court's decision. But his earlier ruling failed to persuade two of his new colleagues, Lord Carnwath and Lady Hale. They said the UK should have put more pressure on the US:
"The governing consideration for the court should be that the applicant remains in detention in Afghanistan, many years after the conflict in Iraq ceased, and after Geneva convention IV (as seen through British eyes) required him to be released. He has now also been assessed by the US detainee review board as suitable for release … In our view, the court should not rest on an inconclusive response [from a US government official], but should require the resubmission of the request in terms specifically relying on the UK's continuing responsibility under Geneva convention IV and its continuing rights under the memorandum of understanding."
This, of course, would have annoyed the Americans. It probably wouldn't have made any difference. But it was surely worth a try.