Detention: Operations in Afghanistan

Discovering Deference: The Rahmatullah Climb-Down

By Benjamin Wittes
Thursday, February 23, 2012, 4:42 PM

It is always an awkward spectacle when a court has to climb down, having issued an opinion that it has no real power to effectuate. That's what has now happened in the British Court of Appeals in the case of Yunus Rahmatullah. The opinion, which came down today, is a faintly-embarrassing retreat from the judicial arrogance with which this case began. The Rahmatullah case began with a roar, but it ends with a whimper.

Rahmatullah, you'll recall, is the Pakistani detainee held at Bagram by U.S. forces but who was captured by British forces in Iraq in 2004 and transferred to American custody. Back in December, as Bobby explained at the time, the British court ruled that he was being unlawfully detained and issued a habeas writ compelling the British government to seek his return so that he could be freed. In that opinion, the judges were making a statement of sorts--a statement of impatience with supposed American lawlessness and with the war paradigm for counterterrorism. They were ordering the British government, on pain of contempt, to confront these evils, at least as to this one detainee.

The decision, as I described in this post, created a real diplomatic problem. British officials--who actually want nothing to do with Rahmatullah--were forced to make significant efforts to free him. American officials, meanwhile, were placed in a bizarre position too. To fail to move expeditiously to free Rahmatullah potentially subjected the government and officials of a closely allied country to serious legal problems before their own courts. On the other hand, the British requests clearly didn't reflect anything more than legal compulsion, and there is something offensive about the idea that the United States would have to free a detainee because of the order of a foreign court in a case to which the United States is not even a party and in which reaked of America-bashing. And on the third hand, there were some additional, uh, complications that militated towards a release: The United States was, in fact, party to a memorandum of understanding with the British that suggested that the British could have Rahmatullah back if they wanted him--as officials were now, under court order, pretending to do. And our own Detainee Review Board in Afghanistan had ruled that while Rahmatullah was lawfully detained, he might be transferred to Pakistan safely were appropriate security arrangements made.

The result was an exchange of correspondence in which the British government sought Rahmatullah's return (insincerely) and the U.S. declined (without quite saying it was declining) and said instead that "it may be more appropriate to discuss the conditions of transfer directly with the Government of Pakistan." The other result was further litigation in Britain over whether this masked ball of a diplomatic effort satisfied the court's order that British officials should seek Rahmatullah's return.

And in today's opinion, the same British court that ordered this whole Kabuki dance concluded that, well, yes, this was, in fact, good enough. The tone of the opinion today is very different from the tone of the one in December. While the court can't quite handle the name or title or affiliation of Deputy Assistant Secretary of Defense William Lietzau--whom it called "Paul" Lietzau and described as "the United States Deputy Assistant Secretary of State for Defence"--it did rule that his "letter clearly maintains that the US authorities are entitled to continue to hold the applicant, that, if he is to be released to anyone, it should be to the Pakistani government, and the US authorities would not release him to anyone without what they regarded as appropriate safeguards." Attorneys for Rahmatullah urged the judges to push the government to obtain a more definitive yes-or-no statement from Lietzau, but they declined, with one judge writing archly that "We have entered the thicket of diplomatic language" and that "for this Court to . . . go behind [the government's] interpretation of the diplomatic language and communications [as a clear rejection] would take us into the forbidden area. In the circumstances, there is nothing more that we can do."

It's funny how courts discover deference when they realize that they have no power anyway.

In the end, the court was left lamely protesting that its earlier action was not "a pointless exercise"--as it "performed its minimum function of requiring the UK Government to account for its responsibility for the applicant's detention, and to attempt to get him released." While it declared this function "perhaps its most vital role," it also found--a little late, to be sure--"the limits of the powers of the court, as a domestic tribunal, in that its reach cannot go beyond its jurisdiction, and that jurisdiction does not extend to the US military authorities in Afghanistan."

British and American officials alike, I suspect, will breathe a little easier knowing that the court has figured this out.