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In an opinion by the Master of the Rolls (i.e., David Neuberger, Baron Neuberger of Abbotsbury), with concurrences from Lord Justices Kay and Sullivan, the Court of Appeal (Civil Division) holds that a Pakistani man held by the U.S. military in Afghanistan may pursue a habeas corpus petition against the UK’s Secretary of States for Defence and for Foreign and Commonwealth Affairs.
The petitioner—Yunus Rahmatullah—was captured in Iraq by British forces in 2004. He was then transferred to US custody pursuant to a memorandum of understanding that included provisions for (i) the arrangement to be governed by the Third and Fourth Geneva Conventions and (ii) the transferring state to have the option of reacquiring custody of the individual upon request. At some point thereafter, the United States moved him to Bagram in Afghanistan. After the Red Cross enabled Rahmatullah to speak with a relative in the UK, according to the opinion, that relative took steps to initiate this habeas proceeding on Rahmatullah’s behalf. It appears that the organization Reprieve is leading the litigation effort, while also pursuing related litigation in Pakistani courts simultaneously.
Today’s opinion observes that the war in Iraq is over, and that a Detainee Review Board in Afghanistan in any event (or perhaps for that reason?) ruled in June 2010 that Rahmatullah was “not an enduring security threat” and that continued internment was “not necessary to mitigate the threat he poses,” and thus that he should be released back to Pakistan. Citing these considerations (and emphasizing the lack of opposing argument suggesting that Rahmatullah nonetheless still lawfully may be detained), the Court of Appeal focused its analysis on the question of whether the UK government really was in a position to do anything about the situation, and whether the foreign affairs angle nonetheless precluded judicial intervention. As to the first, the Court concluded that there was enough reason to believe that it might be possible for the UK to take effective action, and as to the second it concluded that the foreign affairs consideration