Lawyers and human rights activists here are successfully turning to the courts to staunch the erosion of civil liberties released by the Bush Administration's war on terror
LONDON, UK -- Civil liberties advocates have chalked up a surprising victory in what is tantamount to their war on America's war on terrorism.
Yesterday, a three-judge court here ruled unanimously that a Pakistani man who was captured in Iraq by British forces, who then turned him over to the Americans, must be released from Bagram prison, where the Americans have held him without charges since 2004. For six years, the prisoner, Yunus Rahmatullah, who was picked up at the age of 22, was held incommunicado -- unable to contact his family, let alone a lawyer -- until the human rights organization Reprieve took up his case.
Reprieve described the court's decision as "historic." It is "the first time that any civilian legal system has penetrated Bagram, a legal black hole," Cori Crider, the Reprieve lawyer who handled the case, told me. "Lawyers have never been allowed in the prison, which is notorious for torture and homicides and has been called 'Guantanamo's Evil Twin.'"
In a deviation from the dry, legal language that marks the opinion, even the judges described Bagram as "a place said to be notorious for human rights abuses."
As in the United States, lawyers and human rights activists here have successfully turned to the courts to staunch the erosion of civil liberties released by the Bush Administration's war on terror, which the Blair government joined. While the British government steadfastly denied that it had ever been complicit in the American program of extraordinary rendition--under which terrorist suspects were secretly spirited away, bound and gagged, to third countries where they were tortured--court cases have shown otherwise.
In perhaps the most notorious case, Reprieve, representing Guantanamo prisoner Binyam Mohammed, sued the British government to obtain documents showing that Binyam, a British citizen, had been tortured (including having his genitals sliced with a razor) while in Morocco, before being transferred to Guantanamo. Binyam was seized in Pakistan, where the Americans alleged he was plotting to detonate a "dirty bomb" in the United States. The British Government fought hard in the courts to avoid releasing any documents, arguing that to do so would harm relations with the United States. The Obama Administration even went so far to argue that if the judges ordered the release of the documents, the United States might discontinue sharing intelligence with Britain.
The judges weren't cowed. Ultimately, Reprieve prevailed, securing Binyam's release without any charges ever being filed against him.
Along with several other former Guantanamo prisoners, Binyam sued here for damages arising out of their imprisonment, arguing that the British Government had been complicit. The men were represented by lawyers from several private firms. The government settled the cases for undisclosed amounts of money, but thought to be substantial.
In seeking Yunus's release, Reprieve lawyers relied on, and the Court accepted, the applicability of the Geneva Conventions and a bilateral agreement between the United States and Britain signed during the Bush Administration.
The Geneva Conventions govern the treatment of prisoners of war. In addition to requiring humane treatment, the treaty requires that prisoners not be held indefinitely without trial. The Bush Administration cavalierly declared that the Geneva Conventions did not apply to their "war on terror."
It was a policy decision that alarmed most American military commanders, who rely on the conventions to protect their soldiers when captured.
It also disturbed the British Government, which proceeded to seek a bilateral agreement with the United States, known as a Memorandum of Understanding. First signed in 2003, the MOU requires the United States to treat any prisoner turned over by the British to the United States in accordance with international humanitarian law. The MOU also required the "Accepting Power" (in this case the U.S.) to turn over any detainee transferred by the "Detaining Power" (the U.K.) upon the request of the Detaining Power. Stripped of legalese, the British were saying, It's okay if you want to ignore the Geneva Conventions, but not for prisoners we turn over to you.
The Bush Administration largely ignored the Memorandum of Understanding as well as the Geneva Conventions.
So did the British Government under Tony Blair. For years, the Blair government swore that it had not cooperated in any of the CIA's rendition operations, which saw scores of suspected terrorists picked up by American forces then rendered to third countries, where they were subjected to waterboarding and other forms of torture.
Then, in 2009, a senior government official said in parliament that Britain had captured two men in Iraq in 2004, and handed them over to the Americans, who rendered the men to Bagram.
The government did not name the men. Reprieve sued to get their names. The government resisted and prevailed in court. Reprieve began its own investigation, and last March learned that one of the men was Yunus.
Britain still did not request his release, and the United States continued to hold him even though the Pentagon's Detainee Review Board determined in June, 2010 that he did not pose a threat to the United States, and that same month Army Brigadier General Mark S. Martins ordered his release "as soon as practical."
It is not clear why Yunus was not released in accordance with this order. Nor is it known what the British and American governments will do now that the court has made its new ruling. If Reprieve's success with Binyam and others serves as precedent, though, Yunus might indeed be released.