Advancing a Free Society

Discovering Deference: The Rahmatullah Climb-Down

Friday, February 24, 2012

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.

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