No Comment — December 19, 2011, 2:45 pm

Court of Appeal Orders Release of Bagram Prisoner

In an important ruling that sheds light on the complications that American torture and abuse of prisoners presented for NATO allies attempting to support U.S. campaigns in Afghanistan and Iraq, the English Court of Appeal has issued a writ of habeas corpus requiring the return to British custody of a prisoner it concluded was being held illegally by American forces. Yunus Rahmatullah, who was once thought to be connected to the Pakistani militant group Lashkar-e-Taiba, was captured by British troops in Iraq, then turned over to American forces and brought to Bagram prison in Afghanistan in the spring of 2004. I discussed the Rahmatullah case previously, when British parliamentary inquiries first made public the underlying facts. The British legal charity Reprieve brought the habeas petition on Rahmatullah’s behalf.

The facts developed in the Rahmatullah case have clarified the circumstances surrounding one of the notorious Justice Department memoranda issued during the Iraq War. In March 2004, Jack Goldsmith, then head of Justice’s opinion-writing arm, the Office of Legal Counsel, was asked to give an opinion authorizing the removal from Iraq to Afghanistan of a prisoner who was to be rendered to American custody by British military authorities in the Iraqi south. Rahmatullah’s imprisonment was at least one case covered by this memo. The Geneva Conventions unambiguously forbid an occupying power like the United States from removing prisoners from an occupied country except in narrowly defined circumstances designed to ensure prisoners’ own safety. Nevertheless, Goldsmith issued an opinion arguing that they could be removed.

Later on, just as Goldsmith was seeking appointment as a tenured professor at Harvard Law School, a memorandum dated March 19, 2004, surfaced in the press. Several senior faculty members were outraged by it, and mounted an effort to block Goldsmith’s appointment, which was being advanced by the law school’s dean, Elena Kagan (now a Supreme Court Justice). Goldsmith defended himself by arguing that the memo was “never finalized,” a claim that was undermined when the Obama Administration published a finalized memo, signed by Goldsmith and dated March 18, 2004, offering a radically truncated understanding of who fell under the category of “protected persons” in the context of the Iraq War. The finalized memo was textually similar to the March 19 draft. Goldsmith also argued that the memo could not have been used to abuse anyone because “it stated that the suspect’s Geneva Convention protections must travel with him outside of Iraq,” a reference to an ambiguous footnote found at the bottom of the last page of the draft memo.

Unquestionably, the memo did attempt to justify the removal of prisoners from Iraq, notwithstanding the Geneva Conventions’ explicit prohibition of the deportation of prisoners from an occupied country. Was the memo solicited to justify Ramatullah’s removal from Iraq, and to back up U.S. assurances to the British that he would be treated consistently with the Geneva Conventions? That seems likely the case.

The English court decisions do not in any event discuss the Goldsmith memorandum. It is plain, however, that the court does not share Goldsmith’s highly controversial, and widely criticized, analysis of the law. Little information is available about the conditions in which Rahmatullah was held at Bagram, though, as the English court observed, Bagram is “a place said to be notorious for human rights abuses.” The worst of these abuses, including the death by torture of two prisoners (one of whom was the basis for the Oscar-winning documentary Taxi to the Dark Side), occurred before Rahmatullah’s transfer in 2004, but similar violations, including torture, continued at Bagram at least through the fall of 2006, and sporadically thereafter.

The fundamental question posed by a habeas corpus request is whether the prisoner has been lawfully detained. It was for the British government to make a case that the detention was lawful, and it failed to do so. Though it could have raised the kinds of arguments made in the Goldsmith memorandum, it clearly did not believe them to be correct. Instead, it chose to argue that the case was governed by foreign-relations considerations that ought to be immune from judicial scrutiny, an approach the court rejected.

Speaking for a unanimous Court of Appeal, Lord Neuberger, Britain’s second most senior judge, observed that Rahmatullah had been held at Bagram for seven years, his confinement continuing even after the United States’s military-review authority had concluded that his internment was unnecessary. No charges of any sort had ever been brought against him. Noting that article 49 of the Fourth Geneva Convention forbade transfers of prisoners from an occupied country, the court ruled in favor of the habeas application.

The ruling provides a strong counterpoint to American court opinions on similar issues. For one, it presents a clean application of traditional habeas corpus rules in the setting of military detention. Recent rulings in the District of Columbia Court of Appeals, such as the Latif case, clearly aim to make the habeas process meaningless—thwarting the Supreme Court’s guidance in Boumediene, in which it said that applicants should have a “meaningful opportunity” to challenge government evidence. Several D.C. circuit judges have since openly challenged this counsel as unwise. Indeed, the D.C. Circuit’s opinions have increasingly departed from legal grounds in favor of heated political rhetoric. The English Court of Appeal ruling, by contrast, politely defers on the executive and diplomatic issues raised by the Rahmatullah case, even as it demands that the government avoid obfuscation and make its case on the facts.

The British ruling also differs from U.S. opinions in offering a straightforward understanding of the scope of conflict. The “Iraq war is ended,” the Appeals Court twice observes. Indeed, this is now a hard fact to miss: the troops have left, the colors have been folded and cased. And the end of the war has plain consequences under international humanitarian law—specifically, rules concerning the status of prisoners and their presumptive right to be set free unless they are guilty of criminal wrongdoing or present some clear, continuing threat. In America, by contrast, Republicans in Congress seem determined to muddy the legal waters with rhetoric, arguing that the country is at war with the tactic of terrorism or with some undefined group of shadowy enemies. As American military and intelligence leaders mark a triumph over Al Qaeda, the party of perpetual war recently proclaimed that the homeland was a battlefield and pushed for a militarization of the criminal-justice process involving terrorism cases.

The Court of Appeal opinion also teaches us how Britain was constrained by the Bush Administration’s torture practices and its efforts to deny the application of the Geneva Conventions. Britain had to conclude a Memorandum of Understanding with America specifying that the treatment of transferred prisoners would be consistent with a traditional interpretation of the Geneva Conventions. The United States also promised that it would return any rendered prisoners if so requested—an agreement critical to the habeas case. We learn that even today, Whitehall has so little confidence in America’s intention to honor this agreement that return requests are thought “futile.”

This opinion is an important affirmation of the Geneva Conventions, and a clear, though cautious, exposition of their underlying principles. An American reading the decision must feel gratitude for its underlying belief: that when presented with the habeas writ of a foreign government, the Obama Administration will respect the command of law and “produce the body of Yunus Rahmatullah.”

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