JURIST Guest Columnist Kent Roach of the University of Toronto Faculty of Law says that a recent decision by the UK Supreme Court is an important step in the right direction for US detainees who seek “substitute justice” outside of US courts…

Y unus Rahmatullah, a Pakistani national, was captured by British forces in Iraq in 2004 and subsequently transferred to US custody. He was later transferred to detention at Bagram Airbase in Afghanistan when US authorities formed the belief that he was affiliated with al Qaeda.

Rahmatullah is subject to indeterminate military detention without trial. The US Court of Appeals for the District of Columbia Circuit has ruled that habeas corpus does not apply to Bagram.

As a result of the unwillingness of US courts to provide relief in this and other cases, present and former Guantanamo Bay and Bagram detainees are increasingly seeking substitute justice in the courts of other democracies. Australian David Hicks litigated in the courts of his native Australia before pleading guilty at Guantanamo and Canadian Omar Khadr frequently litigated in Canadian courts.

Those acting on Yunus Rahmatullah’s behalf sought habeas corpus in British courts. His application was originally denied with the court ruling that it was not appropriate to grant the writ because the UK and not the US had control over him.

The Court of Appeal, however, granted the writ at the end of 2011 relying on precedents that took an expansive view of the writ and had granted it in cases where the detainee was in Irish and not British custody. They ordered British officials to produce Rahmatullah to the Royal Courts of Justice in London under pain of contempt.

The US government responded slowly to the UK government’s request but eventually, in February 2012, said that they would not return Rahmatullah to British custody. The British courts recognized in a wonderful phrase that “the melancholy truth” was that the US decision disposed of the matter and released the British officials from the writ.

Both the UK government and Rahmatullah appealed and the UK Supreme Court dismissed both appeals on October 31, in a decision that has so far received little attention in the US.

The Court dismissed the government’s appeal that habeas corpus should not have been granted. It stressed that the UK had a claim to control over Rahmatullah under the Memorandum of Understanding signed by the UK and US over the transfer of detainees in Iraq and under the Fourth Geneva Convention, which prohibits involuntary transfer of detainees from a theater of combat. Lord Kerr stressed that the UK government had accepted that the Geneva Conventions applied to all Iraqi detainees and it was not open for the UK government to take the US position, articulated by then Assistant Attorney General Jack Goldsmith, that the Conventions would not apply to those associated with al Qaeda. At the same time, Lord Kerr stressed that he was only concerned with the legality of the UK’s, and not the US’s, actions.

The Court also stressed that habeas corpus was a remedy as of right and it should not be affected by deference to the government’s conduct of diplomacy. At the same time, most of the judges indicated that habeas corpus would only be available in cases where there was a strong case that the UK had a claim to control the detainee and one judge expressed disagreement with an Australian judgment in David Hicks’s matter that suggested that Australian courts might issue habeas corpus even though they had no claim of control over Hicks.

Some may view substitute justice cases such as Rahmatullah’s as an irritating interference with US sovereignty. At the same time, most of these cases are a response to the reality that the litigants could not achieve a judicial ruling on the merits in US courts. Substitute justice litigation is a response to US exceptionalism and extra-legalism which uses doctrines likes state secrets, remedial pre-emption and the denial of habeas corpus to shelter national security activities from judicial review.

The UK Supreme Court also dismissed Rahmatullah’s appeal by a 5-2 margin with the majority essentially accepting that there was nothing more to be done given the “melancholy truth” of the US decision. Some are pursuing a war crimes investigation in the UK and Rahmatullah is now litigating in the Pakistani courts. Rahmatullah is still seeking substitute justice and is engaged in litigation before the High Court of Lahore to attempt to require his native Pakistan to request his return from Bagram. Substitute justice is indirect in that it does not address the main cause of his predicament: indeterminate military detention at Bagram without trial or the ability to seek habeas corpus in US courts.

The UK Supreme Court’s decision does not reflect well on the reputation of the US either in providing justice for its detainees or honoring commitments it made to the UK with respect to the transfer of detainees captured in Iraq. Substitute justice that challenges US counter-terrorism activities in non-US courts often fails to produce effective remedies. It often proceeds on the fiction that US activities are not being reviewed. Substitute justice is not ideal, but it is better than no justice at all.

Kent Roach is the Prichard Wilson Chair in Law and Public Policy at the University of Toronto. He is the author of The 9/11 Effect: Comparative Counter-Terrorism and more recently of “Substitute Justice: Challenges to American Counter-Terrorism Activities in Non-American Courts,” in the Mississippi Law Journal.

Suggested citation: Kent Roach, The British Courts Rule on US Detention at Bagram, JURIST – Forum, Nov. 5, 2012, http://jurist.org/forum/2012/11/kent-roach-rahmatullah-detention.php.

This article was prepared for publication by Caleb Pittman, head of JURIST’s academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org