England Gave Us Habeas Corpus Once Before…

Can they do it again?

The British human rights organization today won a habeas corpus petition for their client, Yunus Rahmatullah, who has been detained at Bagram for 7 years, in the English Court of Appeal.

The Master of the Rolls, Lord Neuberger, Lord Justice Maurice Kay, and Lord Justice Sullivan, said the case raised important principles of law. Their court ruling is the latest in a series relating to the treatment of detainees in Iraq and Afghanistan that have been highly critical of the Foreign Office and Ministry of Defence.

The judges rejected a claim by a senior MoD official, Damian Parmenter, that granting a writ for habeas corpus would be “futile”.

Kay said: “On the face of it [Rahmatullah] is being unlawfully detained and [British ministers] have procedures at their disposal … to enable them to take steps which could bring the unlawful detention to an end.”

[snip]

Though Rahmatullah is in US custody, the UK is the “detaining authority pursuant to the memorandum of understanding struck between the UK and US” during the Iraq invasion, Leigh Day said. British ministers remained “responsible” for Rahmatullah under the Geneva conventions.

The decision relies on the Memorada of Understanding regarding detainees signed between the Brits and the US. The Iraqi one signed in 2003 notes, among other things, that,

Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power [the UK on the present facts] will be returned by the Accepting Power [the US on the present facts] to the Detaining Power without delay upon request by the Detaining Power. [brackets original]

And while the British government claims that MOU is no longer in effect, the judges aren’t buying it.

It is true that Mr Parmenter says that the Ministry of Defense believes that the first MoU is spent. However, in the light of the terms of the two MoUs, that expression of opinion is not enough to dissuade me that it is inarguable that, if the first MoU applied to a person when he was handed over, it was not intended to be disapplied simply because the second MoU was entered into or because hostilities ceased.

And after rehearsing the requirements of the Geneva Conventions (and emphasizing that the Brits had to sign these MOUs in the first place because George Bush said the Conventions didn’t apply with al Qaeda), the ruling includes this implicit threat.

It is unnecessary (and would be inappropriate) to address the question whether, by not taking that course [of demanding the US release Rahmatullah], it might, conceivably, be said that as a result of the combination of section 1 of the 1957 Act and Article 130 of Geneva IV, the UK Government could be aiding or abetting a “grave crime”.

That may not make the British request that we release Rahmatullah sufficiently persuasive to make it happen. But it sure does clarify the issues at hand, doesn’t it?

Update: English v. British corrected per chetnolian.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

24 replies
  1. Mary says:

    For some reason, I can’t open either of your first two links. Dissecting them, I can get to reprieve.org but I am not being allowed to access the UK link from there. My iPad says Safari cannot find the server, my desktop says the DNS server may be having problems. I can access the Oz Reprieve.

    fwiw. Hopefully it will clear later.

  2. chetnolian says:

    Just to show I’m still around sometimes and am concentrating, it is the English, not British, Court of Appeal. There is a British Supreme Court, but the English and Scottish legal systems are separate up to there. And yes, habeas corpus is an English Law concept.

  3. Mary says:

    Just checked again and still can’t get through on those. I’m gussing it is the ISP? When I take the iPad off WiFi and can pull it up.

  4. Mary says:

    Looking at the opinion/order, I like the reference in 10 as to Bagrama “which Laws LJ observied in his judgement, is ‘a place said to be notorious for human rights abuses'” Note despite the careful language, no one was using past tense on that.

    Pssst – the reference to Article 130 of GC IV is wrong (unless the US is going to be found to have suicided him). I’m not sure where the quote is from, but it should be 132 and/or 134, unless he’s now a dead body.

    The court makes the same observation vis a vis Article 146 of GC IV that I have said over and over stacked the deck against all the GITMO detainees. Article 146 makes it a “grave breach” to have engaged in ulanwfor transfer or confinement. If someone was found in their combatant status hearing to be not a combatant, they their very existence at GITMO is a prima facie war crimes for grave breach case. And made it a prima facie war crimes case as well, under the old statute, before the Democrats joined with the Republicans in agreeing to revise the language that included all grave breaches as war crimes.

    It’s interesting that the Ministry of Defence is arguing that it would be “futile” to believe that Obama would comply with the Memoranda of Understanding executed by the US Gov and turn the man over. They sound like Democrats – “oh gee, golly, they’d prolly just say no, so why ask?”

  5. Mary says:

    @emptywheel: Thanks – when I switched off the wifi and went with just Verizon, I could pull them up. So the ISP at work and my wifi provider were both not letting me through, but Verizon 3G didn’t have any problem.

  6. chetnolian says:

    @emptywheel:
    Canada inherited the Queen as their Head of State when Canada became a Dominion within the Commonwealth instead of part of the Empire (i.e. stopped being a British colony). They seem to like it. They can stop any time. She might be upset but there’s not a lot she could do.

  7. earlofhuntingdon says:

    @chetnolian: I agree about the distinction between the Court of Appeal and the Supreme Court, though let’s not leave out the put upon Welsh. It is technically the laws of England and Wales, not just the English.

    Although Scottish law has much in common with English common law, it retains European civil law concepts originating from the French, which for centuries supported the Scots in opposition to their common opponent south of the border.

  8. ANOther says:

    @chetnolian: I think that saying we like it is something of an overstatement (although Harper clearly does). The question is what is the alternative for head of state? An election is a non-starter since then you would have a conflict with the elected government. An appointment by the government would be too partisan. So we remain with the Queen as head of state and the Queen’s proxy in Canada, the Governor General, appointed by the government – a typical Canadian compromise. How this might change with Charles and Camilla is an open question.

  9. emptywheel says:

    @Mary: I didn’t really lay out the argument that the 2003 MOU was not meant to provide any legal rights. So make sure you review that on that point.

  10. emptywheel says:

    @earlofhuntingdon: Really? That’s fascinating. Not least because I’ve long thought Edinburgh would be a nice place to move to (though as the EU breaks up I better get there before Irish citizens lose work privileges, huh?)

  11. Petrocelli says:

    @ANOther:

    Canada recognizes The Queen only as far as her role is, of Head of State of Canada. It is ceremonial – witness the inability of the previous Governor General to stop Harper from proroguing Parliament. The GG acts on behalf of the Queen, as Head of State in Canada.

    Harper’s newfound love for HRH Elizabeth II is simply an effort to divide the country along Anglo/Franco allegiance and wrest more power from the fickle Lefties.

  12. emptywheel says:

    @Petrocelli: Sure, Toronto and Vancouver would offer proximity to my family and an acceptable level of diversity. Edinburgh would represent what I once believed to be European sanity.

    Unfortunately, there is no sanity.

  13. Mary says:

    @ew re 2003 memorandum and unrelated observations

    First off, it is worth noting that the court in this case was basically looking, initially, at the issue our evasive Sup Cut used to duck and dodge on the first round of the Padilla saga -i.e., who has control and/or custody. And boy did they go a whole nuther direction.

    Re the memo, it is with noting that the court is actually using the Geneva Conventions themselves as the primary grounds for its decision, with the mou as support. Iow, it is saying that England is not bound by the US interpretation that the US has the power to negate the GCs by definitional fiat.

    See 35 of the opinion, “…What I am saying is that, in light of Geneva IV! There is a substantial case for saying that the UK Govern,ent is under an international legal obligation to demand the return of the applicant, and the US Government is bound to accede to such a request?”

    36 goes on to say that if the first mou is applicable, it reinforces the court’s point, but the mou is not being relied upon per se. The court does an interesting waffle on whether it is ruling under GCIII, re POWs, or GCIV, re civilians. It says on the evidence before it, IV applies, but throws in the dicta that the ruling would likely be the same under III.

    As to the mou, it is one of those diplomatic documents that doesnt confer a legal right per se, but it does speak in relatively absolute terms as to the diplomatic agreement. It has the same effect in many ways as many of our status of forces agreements do (most are based on diplomatic understandings and not an enforceable law in the host country) . Still, a country has an obligation to respond to its diplomatic commitments.

    If the US failed, then you have a couple of issues, not the least of which is the court’s reference to the possible war crimes issue, not for the US, but for its UK abettors over which the UK courts do have jurisdiction.

    You also end up with some interesting issues as to claims that could be made as to the validity of US representations in all manner of other areas (sofas, extradition, etc)

  14. earlofhuntingdon says:

    @emptywheel: Well, Edinburgh wasn’t called Auld Reekie for nothing. It’s weather is often overcast and rainy, but it is less smelly now that coal has given way to North Sea gas and any industry worth its name has relocated beyond its precincts. The city is small by European standards, which I find attractive. Ian Rankin’s Inspector Rebus would be a good place to get a feel for the city’s underside, but that’s like reading Robert Parker to get a feel for the “real” Boston. Descriptions of Burns’ nights would be a good start on the other end of the scale. It does have its university, its brooding castle and the odd billionaire writer and her brooding and happy wizards. The Georgian architecture in her “New Town” neighborhood is to die for, if you can afford to buy, heat and maintain a property. It’s as cosmopolitan as Scotland gets, and it’s a short drive or train trip even to the Highlands, which is where some say Scotland starts, not to mention the place to find its better whiskies.

  15. earlofhuntingdon says:

    @Petrocelli: I’m rather fond of it, though the croissants are mostly cold, if the coffee hot. It has neighborhoods one can live in, as well as plush suburbs. As with Edinburgh in Scotland, it’s among the most expensive in Canada (I think Vancouver has that locked up). A common discontent is it’s too clean and orderly; obviously, those commentators have never been to Switzerland or picked up after a U of T bash.

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