UK 'must help release detainee' in Afghanistan, High Court told
Lawyers for a man held in Afghanistan are demanding he is freed under one of the England's most ancient laws.
Yunus Rahmatullah was seized by British soldiers in Iraq in 2004 as a suspected insurgent and then secretly taken by US forces to Bagram Air Base.
His lawyers want the High Court to issue a writ of "habeas corpus", forcing the government to ask Washington to release Mr Rahmatullah.
Government lawyers say the UK has no control over the prisoner's fate.
Mr Rahmatullah's case emerged in 2009 after ministers admitted that two detainees formerly held by British forces in Iraq had been transferred by the Americans to Afghanistan, a process dubbed extraordinary rendition.
The 28-year-old Pakistani man was seized by British forces in February 2004 during an operation against insurgents in Iraq.
The soldiers handed him over to their US counterparts under a Memorandum of Understanding (MOU) covering how prisoners would be managed. Within weeks he was at Bagram and was held incommunicado until his family were permitted to speak to him on the telephone last year.
Mr Rahmatullah told US commanders he was the victim of brainwashing and regretted ever joining the jihad in Iraq. In June 2010, a detention review board accepted his pleas and authorised his release, saying he posed "no enduring security threat". Since then nothing has happened.
Deal with US
Nathalie Lieven QC, for Mr Rahmatullah, told the High Court that the UK's foreign and defence secretaries had a legal obligation to demand her client's release because they had been the detaining authority, not the Americans.
She said that the MOU between the US and UK specified that London had the power to request the prisoner's return at any time.
This agreement meant the High Court should issue a writ of habeas corpus, an 800-year-old English judicial order, which requires ministers to bring to court someone who has been unlawfully detained.
The power was originally designed to prevent monarchs from detaining their enemies without fair trial, often in prisons beyond England's borders. It is rarely used today, but sometimes features in cases where an individual has been detained under the Mental Health Act.
Ms Lieven told the High Court: "The detaining authority has the right to request the man back," she said. "The US is obliged under the MOU to hand him back."
But James Eadie QC, for the government, said the court could not issue the writ.
"The short and complete answer to the application for habeas corpus is that [Mr Rahmatullah] is not in the custody, power or control of [the British Government]. He is in the power, custody and control of the US," he said.
The case comes after new details emerged of the arrangements between the UK and US over the handling of prisoners during the Iraq war.
Key documents relating to Mr Rahmatullah's case were released under Freedom of Information to Conservative MP Andrew Tyrie, chairman of the all-party parliamentary group on extraordinary rendition.
The papers show that when Mr Rahmatullah was detained, the UK was not monitoring what was happening to detainees handed over to the US.
Mr Tyrie called on a forthcoming inquiry into detainees and rendition to look at cases like Mr Rahmatullah's.
"More than three years after I first requested information on rendition from the Ministry of Defence it has finally been required to disclose much of it," said Mr Tyrie.
"It reveals a catalogue of MOD mishaps and failures, including a failure to track detainees handed over to the US, a weakening of protections for those handed over and a failure to keep proper records.
"The detainee inquiry's position, that 'military detention operations should not be one of the key themes for the inquiry', now looks unsustainable.
"Without a comprehensive examination of rendition, the drip-drip of allegations will continue. This is why it is essential that the Gibson Inquiry into rendition covers detainee transfers in theatre."