In an extraordinary ruling in the UK Wednesday (PDF), the Court of Appeal ordered the British government to secure the release of a prisoner, Yunus Rahmatullah, who is 29 years old, and has been held in the US prison at Bagram airbase in Afghanistan since March 2004. Born in Pakistan but raised in the Gulf States, Yunus was seized by British forces nearly eight years ago, in February 2004, and was then “handed to the US and illegally rendered to Afghanistan,” as the London-based legal action charity Reprieve, whose lawyers represent him, along with lawyers from Leigh Day & Co., explained in a press release.
Despite being held for nearly eight years, Yunus, also known as “Saleh Huddin,” was held incommunicado, unable even to contact his family, for six years, and has only recently been allowed to establish telephone contact with his relatives. Reprieve noted its lawyers and investigators had been “told by multiple sources that, as a result of his abuse in UK and US custody, he is in catastrophic mental and physical shape, and now spends most of his time in the mental health cells at Bagram.”
As Reprieve explained, this “historic decision” also “marks the first time any civilian legal system has penetrated Bagram, a legal black hole where nearly three thousand prisoners — many rendered from all over the world — have been unlawfully held by the US military for up to a decade.” Unlike at Guantánamo, itself an opaque and unjust facility, but one where civilian lawyers have had access since the Supreme Court granted the prisoners habeas corpus rights in June 2004, no civilian lawyer has ever been allowed into Bagram, which, as Reprieve described it, “is notorious for torture and homicides and has been called ‘Guantánamo’s Evil Twin.’”
This is indeed a remarkable development, as the Bagram prisoners have been abandoned by the US courts, despite winning a remarkable — and entirely appropriate — victory in April 2009, when, in the District Court in Washington D.C., Judge John D. Bates granted habeas corpus rights to three foreigners rendered to Bagram from other countries, and held for many years, asserting that the circumstances in which they were held were essentially the same as those in Guantánamo. However, in May 2010, that ruling was reversed on appeal, leaving the prisoners still stranded by the Obama administration, in what Judge Bates described as “a ‘black hole’ for detainees in a ‘law-free zone.’”
The UK Court of Appeal’s ruling — by Lord Neuberger, the Master of the Rolls, Lord Justice Maurice Kay and Lord Justice Sullivan — came in response to a habeas corpus application by Reprieve, in which it was noted that the British government had “repeatedly refused to help Yunus,” even though the Abu Ghraib scandal was made public just weeks after his detention.
Reprieve noted that British officials “failed to get him back and said nothing when they learned he had been sent illegally to Bagram,” even though the British government “has always had the clear power to get Yunus back, under the Geneva Conventions and under the relevant ‘Memorandum of Understanding’ which grants control over the prisoner to the UK and explicitly requires Yunus to be returned to UK custody on request.”
Describing the history of Britain’s shameful role in Yunus’ long years of abuse, Reprieve explained:
In February 2009, after years of government denials that the UK had been involved in any rendition operations, then-Secretary of State for Defence John Hutton announced to Parliament that UK forces had captured two men in Iraq in February 2004, and handed them to US forces. In subsequent statements to Parliament, the government revealed that in March 2004, British officials had become aware of the US intention to transfer the men from Iraq to Afghanistan.
The British government admitted its complicity in crime (kidnapping, otherwise called rendition), admitted it was wrong, and appeared to apologize. Yet it did not and refused to identify the men — a crucial step if they are to be reunited with their basic human rights. Indeed, the government has apparently done nothing over the past seven years to ensure that they receive legal assistance.
Reprieve led a complicated and expensive search for the identity of these men, which covered three continents over ten months. One of the men has been identified as Amanatullah Ali and the other as Yunus Rahmatullah.
A spokesperson for Leigh Day also explained how difficult it was to actually represent Yunus Rahmatullah, because of the Obama adminstration’s refusal to allow any lawyer to visit Bgaram. Yunus, the spokesperson said, was “prevented from speaking with or instructing lawyers,” so instructions to act on his behalf “were received through his cousin, who has intermittent communication with the client through the International Committee of the Red Cross.”
In the ruling, Lord Neuberger said there was “a substantial case for saying that the UK government is under an international legal obligation to demand the return of the applicant, and the US government is bound to accede to such an request,” leading Reprieve to state that there was, therefore, “no reason” to think that the US government will not comply with the court’s request.
Reprieve also noted that the US government has already acknowledged that it no longer wishes to hold Yunus. At Bagram, his case was assessed by a Detainee Review Board on June 5, 2010, in which it was concluded that his continued imprisonment was “not necessary.” The review process at Bagram was established by President Obama — and was copied from the system introduced by the Bush administration at Guantánamo, which was described as “inadequate” by the Supreme Court — but, instead of being released, he continues to be held.
As Reprieve noted, “There is therefore no lawful basis for his imprisonment, as the UK government has admitted to the court. The UK therefore has the right — and the duty — to send Yunus home.” Reprieve also stated that, although the British government “has repeatedly declined to state on what legal basis Yunus was rendered, the Geneva Conventions define his rendition as a “grave breach” — that is, a war crime — about which the UK appears to have known in advance,” adding, “The Court of Appeal acknowledges this, and has said the UK may be required under international law to get Yunus out of Bagram — or face being in grave breach of the Geneva Conventions.”
The Court gave the British government just seven days to secure Yunus’s release, or to explain to the court why they cannot do so, and Clive Stafford Smith, Reprieve’s director, said, “Yunus Rahmatullah’s mother cries herself to sleep at night because the United Kingdom wrongfully arrested her son and has refused to facilitate his release. The legal black hole of Bagram is antithetical to the rule of law, and Guantánamo’s evil twin. The Court of Appeals is right to recognize this injustice and the British government must now do the decent thing, which it has so far repeatedly refused to do — help Yunus return home.”
In addition, Yunus’ solicitor at Leigh Day, Jamie Beagent, said, “This judgment affirms that our client remains the responsibility of the UK under international law. The government must now accept its responsibilities and seek the return of Mr. Rahmatullah from US detention, under the terms of its agreements with the United States.” He added, “We hope that the writ of habeas corpus will finally bring to an end our client’s nightmare of indefinite detention without charge in appalling conditions at Bagram.”
Back in May 2010, Yunus’s mother, Fatima Rahmatullah, issued the following statement:
Yunus is the youngest and closest son to my heart. I lost my other son, his only brother, in a tragic accident. Now, Yunus is my only hope in life. I see him in my dreams; I pray daily that I will see him in my waking hours again. Our family was shocked when we learned that the British government might have been behind Yunus’ disappearance. I am told the British government has refused even to confirm that Yunus was the person they seized six years ago. As a mother, this is a position that I struggle to understand.
As well as tackling the British government’s responsibility for Yunus Rahmatullah, Reprieve is also involved, in Pakistan, with the organization Justice Project Pakistan (JPP), fighting what it describes as “a ground-breaking case filed on behalf of seven Pakistanis imprisoned in Bagram Air Base, which challenges the Pakistan government over their role in renditions.”
In addition to Yunus Rahmatullah, the case also involves Awwal Khan, Hamidullah Khan, Abdul Haleem Saifullah, Fazal Karim, Amal Khan and Iftikhar Ahmad, who were “abducted from Pakistan and taken to Bagram, where they have been kept without charge or trial since 2003.” Reprieve added, “One prisoner is merely 16 years of age and was seized two years ago at the age of 14. Another was not permitted to speak to his family for six years, and is believed to be in a grievous physical and psychological condition.”