A good day for habeas corpus

A Pakistani man held in prison by the US since 2004 may finally go free, thanks to an ancient common law remedy.

Bagram air base
Yunus Rahmatullah has been held at Bagram Airbase for years without any charges brought against him [EPA]

At last. After years of waiting and worry – and confusion over why her son is still in Bagram prison in Afghanistan nearly two years after he was cleared of charges against him – Yunus Rahmatullah’s poor mother has reason to hope.

Yunus was seized by UK forces in Iraq in February 2004, and immediately handed over to the US. In order to make the handover legal under the Geneva Conventions, the two countries signed a memorandum of understanding stipulating that the UK could take back the prisoner at any point if it so wished.

The trouble is that the US was riding roughshod over the Geneva Conventions when Yunus was handed over. Just weeks after the seizure, the Abu Ghraib prisoner abuse scandal broke. The UK said nothing about Yunus. In June, they were “informed” that Yunus had been sent to Bagram, likely a grave breach of the Geneva Conventions. Still they stood by. Yunus then sat in Bagram for seven years. There was no charge, no trial and no help from the government that seized him in the first place.

“As of today, the Foreign and Defence Secretaries have seven days to get Yunus home to his mother – or spend a little time in a cell of their own for contempt of court.”

But today, things are looking up for Yunus. He has just been ordered freed by the Court of Appeal in a landmark habeas corpus judgment. Habeas is an ancient common law remedy: as old as, or older than, the Magna Carta. Its basic idea lies at the heart of our legal system: A man cannot be held in secret; he must be charged and tried, or released. Its bite is that it makes the jailor personally responsible for any man he has seized – he has to a) turn the man loose, b) produce a reason to hold him before the court, or c) face the judges’ wrath.

As of today, the Foreign and Defence Secretaries have seven days to get Yunus home to his mother or – unless they have a very good reason indeed – spend a little time in a cell of their own for contempt of court.

It took legal aid organisation Reprieve, Reprieve’s barristers, and law firm Leigh Day years to get the UK government to this position. Why they did not simply right this wrong from the start is still unclear. But the UK bobbed and weaved like a boxer about this case from day one: When the Minister of Defence admitted for the first time in February 2009 that it had turned over two men to the US, the government refused to say who they were. When we sued them for the names they still did not back down, and Reprieve had to spend much time and money to find Yunus’ family and bring a case.

Finally, when we brought a habeas action – effectively saying, “you seized him, he should never have been sent to Bagram, you get him back” – the UK government denied that it had control of him anymore. At some point, (although at what point precisely was never made clear), Yunus was “just not our problem”. Should he be in Bagram? No, but that’s got nothing to do with us, the government said.

The Court of Appeal saw through this, not least because of the written deal between the US and UK that entitled the British to get its prisoners back on request. This was the bare minimum required at the time to keep the British from committing war crimes – their ally, the US, had already made clear that it did not think the Geneva Conventions applied to captives in the War on Terror.

This is what habeas corpus is all about. Those responsible for secret detention tend to deny that they have control of the prisoner. That is the reason why the writ was created in the first place. The simple fact, and one the Court of Appeal rightly recognised, is that once the British seized this man, they cannot simply “wash their hands” of him – or of their obligations under the Geneva Conventions.

As the Court mentions, to not right the wrong done to Yunus now may well make the current UK government a party to a grave breach of Geneva – in other words, a war crime. One assumes there will be no difficulty in this respect. Both international law and the express agreement between the United States and Britain require the US to give over Yunus if asked.

The right course for the US and UK is simple. Britain erred when it handed this man over to the US in the first place, and it ought to bring him home.

The Obama administration, for its part, needs to see this situation for what it is: an error by the Bush administration that it need not embrace. It is also an opportunity. These are fraught days for US-Pakistani relations, and the transfer home of a cleared Pakistani citizen from Bagram would go a long way to establishing goodwill. It would be unlawful, as well as pointless and self-defeating, for the US to seek to ignore its obligation to Britain’s prisoner.

It is high time Yunus’ mother saw her son again. In seven days’ time, we may just see that happen.

Cori Crider is the legal director at Reprieve, an organisation that provides legal aid to prisoners facing the death penalty or held as part of the “War on Terror”.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.