Detention & Guantanamo

Cori Crider on Yunus Rahmatullah

By Benjamin Wittes
Friday, February 3, 2012, 7:44 AM

Cori Crider of the British human rights group Reprieve stopped by my office yesterday to talk about her client, Yunus Rahmatullah--about whom Bobby has written and who is suddenly the subject of a very delicate bit of U.S.-British diplomacy. Rahmatullah, you'll recall, is the Bagram detainee whose release a British court recently ordered the British government to seek. I asked Cori to write a brief for Lawfare readers laying out her case that U.S. officials should take the situation seriously. She makes, in my view, a strong prudential case for Rahmatullah's release. Here is her missive in full, followed by a few thoughts of my own:

Are we a nation that honors our promises to our allies?

That – and only that – is the question those discussing the Yunus Rahmatullah case in the US government should be asking themselves.

This man was granted a writ of habeas corpus late last year in Britain. He is in US custody in Bagram. This strikes one as incongruous until one learns that he was picked up in February 2004 by Britain’s Special Air Service, or SAS. The SAS handed their prisoner to US forces; the US then took him to an undisclosed location in Iraq – one hopes for his sake not Abu Ghraib – and by June 2004 had sent him to Bagram.

Nearly eight years later, there he remains.  His June 2010 Detainee Review Board found his continued internment ‘unnecessary’.   He hails from Pakistan, and Pakistan is willing to have him. The British, on pain of contempt of court, have been ordered to seek his return to UK custody.  There will be an appeal, but under British law it is academic; for Mr. Rahmatullah the order is final.

Britain has thus asked for their prisoner, and the National Security Council are apparently ‘considering’ the request.
Much is at stake here – much more than the fate of Mr. Rahmatullah. This is because many years ago we made Britain a promise: once asked, we would return to Britain any prisoner it originally seized. At the time of the Iraq invasion, the US and UK signed a Memorandum of Understanding (MoU). The MoU said that the nation who captured a prisoner (here, Britain) retained responsibility for him under the Geneva Conventions. It also said that if the ‘detaining authority’ sought the return of their man, as Britain now has, that the ‘receiving authority’ (that’s us) would duly give him back.

So why have we not yet kept our word? Why has Mr. Rahmatullah, now 29, not simply been sent home to Pakistan, which would dispose of the case and satisfy all concerned?

A recent article in the Washington Post offers a clue. It suggests, on the one hand, that the US has no desire to continue to hold Mr. Rahmatullah. On the other, it tells us that US officials wish not to be seen to bow to the orders of faraway judges in faraway lands.  (This is, after all, a time when some presidential candidates find it expedient to claim their own Supreme Court doesn’t bind them.)

Let us be clear: of course the US is not subject to the orders of a British judge. No one claims otherwise.  So does it matter if we in America ignore the UK’s request and do as we like, in the words of one nameless official, ‘on our timetable’?

Such a move will trigger several consequences.  One, it could render UK officials liable to prosecution.  The Geneva Conventions are part of British criminal law.  Those versed in humanitarian law outside the US have expressed the view that Mr. Rahmatullah’s transfer to Bagram was a grave breach of Geneva.  The same view of Geneva – let us say the traditional view – holds that his ongoing imprisonment in Bagram is unlawful.  Failure by the UK to remedy the breach may make the UK criminally complicit. This, at least, was the view of the most senior judge on the UK Court of Appeal.

But leave aside the question of whether Scotland Yard will take up the case, as they recently have with US-UK renditions to Libya.  The main risk to both nations over Yunus Rahmatullah is not that a British minister will be sent down. The real risk is that, if this promise is broken, it will be politically (and legally) impossible for the UK to enter similar agreements with the US in future conflicts. The UK military insists upon legal cover for its operations; they entered Iraq only on their Attorney General’s blessing. How can they continue to fight alongside us if we prove we are not to be trusted?

It is popular, particularly in an election year, to hail the unrivalled might of the US military. It is fashionable to pound the chest and make silly declarations that America, a great nation, can flourish on its own.  But those who wield our power know perfectly well that Britain has been and will be an essential ally in war. Its support lends our battles legitimacy.  It retains one of five permanent votes on the Security Council.  We rely on its special forces – like the SAS, who seized Mr. Rahmatullah and are still responsible for him under British law.  It would be disastrous if, when pressed, we showed Britain that the word of our military is a coin without worth.

This case is a simple question of honor between friends. The time remaining to keep our promise is short – the last hearing in Yunus Rahmatullah is February 20. To fail our British ally would be self-defeating, and the ripples will chase us for many years to come.

I am a little hamstrung in writing about this case, as my intimacy with its details is limited. The public record is not fulsome, and the facts as recounted in the British court opinion are relatively spare. The United States government has not had much to say on the subject; as it is not party to the case, its side of the story is absent from the discussion. So consider somewhat tentative my sense that where a DRB has concluded that a detainee should be released, where we have committed ourselves to returning a detainee on request to an allied power that gave (lent may be the better word) him to us, and where that ally may face significant legal consequences for not procuring his return by a particular date, the better part of valor is probably to hasten our own compliance with the decision of our own DRB--even if that means seeming to respond to the order of a foreign court. To make the point that we are responding only to (1) our DRB's decision and (2) our obligations under the terms of the MOU with Britain, I think a public statement describing the factors that contribute to any transfer would be appropriate, and it seems to me important as well that we insist on a transfer to British forces under the MOU, not a simple release or transfer of the detainee to Pakistan. We should, of course, also encourage British authorities to make whatever security arrangements we think necessary--and would otherwise make ourselves--to mitigate whatever threat Rahmatullah may pose once released. As I say, it's a delicate bit of diplomacy.