Foolishly, I’m leaving my comfort zone here. I’m rather familiar with habeas in the context of collateral attacks under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). I’ve spent less time familiarizing myself with the use of habeas by detainees and enemy combatants. Fortunately, it’s a nascent field so there’s not as much to know in the first instance. As a caveat, I neither expect nor intend to be exhaustive in this post. Instead, I only seek to bring up the major relevant law then comment on the legal landscape.
Well, now’s as good as any time to ameliorate my disparity of knowledge. If you’re wondering why the sudden interest, it’s because of a shiny new judgment on habeas law from the UK. As the BBC reported yesterday, the Court of Appeal (Civil division) directed “that a writ of habeas corpus be issued[ ]” to test the legality of Yunus Rahmatullah’s detention. See Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs & Anor,  EWCA Civ 1540, . The High Court (Administrative division) had refused to issue the writ. See Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs & Anor,  EWHC 2008,  (Admin). So what’s going on here?
I. BACKGROUND FACTS
The facts of this matter are well-established in the High Court opinion and incorporated into the Court of Appeal’s opinion. The basics are these: Yunus was captured by British forces in 2003 and handed over to American troops as part of a “Memorandum of Understanding.” In 2010, Yunus’ detention was reviewed by the U.S. Detainee Review Board. That board found that Yunus is no longer a security threat. However, he still remains in an American detainee prison – specifically the one in Bagram, Afghanistan.
Yunus’ cousin learned in May 2010 about the detention and filed an application for a writ of habeas corpus in the UK. As far as I have been able to tell, Yunus’ cousin did not petition the D.C. Circuit in the US under 28 U.S.C. § 2241. I bring this up now but table it for some discussion later.
II. THE DIVISIONAL COURT RULING
Laws, LJ, issued a thoughtful opinion refusing to grant the writ. I found his discussion of habeas precedent especially illuminating. He noted that “[t]he common law . . . does not confine the benefit of the writ to British subjects.”  EWHC 2008, . Pay attention to that language; we’ll be coming back to it in a bit. Furthermore, he points out that habeas is not limited to merely remedying unlawful detention but also allows a court to inquire into the legality of the detention. In other words, the writ may be issued in order “to investigate the legality of a detainee’s confinement . . . .” Id. at .
Did you catch that? A writ may issue merely to investigate the legality of detention; issuance needn’t be reserved for instances where detention has already been shown unlawful. Wouldn’t it be nice if American habeas law followed this approach? I, for one, would quite like that.
Though Laws, LJ had some insightful words about habeas, he ultimately denied issuance of the writ on the grounds that the United Kingdom lacks sufficient control over Yunus to direct his release / delivery. See id. at . This logic was based on Laws’ notion that “[t]he [Memoranda of Understanding] did not create legally binding rights or obligations; and even if they had, they would have sounded on the international plane only.” Id. at .
III. THE RECENT COURT OF APPEAL RULING
On December 14, the Court of Appeal went the other way on the issue of control. The rationale for finding that the UK could exhibit control turns, somewhat oddly, on the “sufficient uncertainty” of the matter. See  EWCA Civ 1540, . The argument goes that because the Memorandum of Understanding allows the UK to demand production of the detainees it hands over to the US, the government “is . . . entitled either to demand [Yunus’] release or to demand his return to UK custody . . . .” Id. at .
The reasons that the UK would be entitled to demand Yunus be delivered turns on the Geneva Convention. Both the Divisional Court and Court of Appeal discuss briefly the Geneva Convention and how Yunus’ continued detention probably violates it. As a result, the Court of Appeal noted that “there is a substantial case for saying that the UK Government is under an international legal obligation to demand the return of [Yunus], and the US Government is bound to accede to such a request.” Id. at .
And so, because the court found that the UK government could demand production of Yunus, that was sufficient to require them to make such an attempt. As the BBC article I referenced at the beginning of this post notes, this decision will probably be appealed to the United Kingdom Supreme Court.
IV. HABEAS LAW & DETAINEES IN AMERICA
I find so much about these two opinions fascinating but I think it’s worthwhile to focus on the detainee aspect. The “war on terror” has caused habeas to be employed in an original way. In America, the most common use of habeas corpus is by prisoners attempting to attack their convictions. We call these petitions “collateral attacks.” As I noted at the outset of this post, collateral attacks are governed by AEDPA, which is a procedural nightmare. For better or worse I’m developing a healthy understanding of the area.
Things change in the terrorism context. This isn’t surprising – it wasn’t until after 9/11 that the United States began indefinitely holding “enemy combatants” at Gitmo and abroad. Accordingly, there has only been a decade of development in this legal area.
For detainees challenging their detention through the use of US habeas law, the problem has always been one of jurisdiction. How do you even get in the door when the US Government has placed you somewhere abroad that (arguably) cannot be touched by a domestic court? This problem arose in earnest with Rasul v. Bush, 542 U.S. 466 (2004) and reached a plateau in Boumediene v. Bush, 553 U.S. 723 (2008). In between, two other notable cases also came along: Hamdi v. Rumsfeld, 542 U.S. 507 (2004) and Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
I don’t think it’d be useful to go through these decisions in intricate detail. However, a swift summary of this line might be useful. In Rasul, the Court found that the federal courts had jurisdiction under § 2241 to hear habeas petitions even if the petitioners were in Gitmo. In doing this, the Court rejected the notion that Johnson v. Eisentrager controlled. After this came Hamdi. It’s a case that has plenty of interesting things to say but that I mention for only one point: US citizens have a due process right to “meaningful opportunity” to contest his or her detention. This right naturally trumps any Congressional attempt to strip the judiciary of its habeas jurisdiction. After Hamdi, Congress passed the Detainee Treatment Act of 2005, which the Court picked away at in Hamdan.
Then we get to Boumediene, which is still the controlling law. And the Court was busy here. It once again held that Congress had unconstitutionally stripped the federal courts of their jurisdiction (through the 2005 DTA). But the Court went further, explicitly stating that Gitmo detainees have a right to petition under habeas. Thus, the Court flatly rejected the notion that Guantanamo Bay was an “untouchable” area outside of federal court jurisdiction. Lastly, the Court rejected the notion that the Combatant Status Review Tribunals (“CSRT”) established by the Department of Defense could act as a sufficient substitute of habeas to avoid a Suspension Clause problem.
Here, I’ll digress briefly. What do I mean by a Suspension Clause problem? Well, the right to habeas in the US has never been clearly defined from a constitutional standpoint. It is explicitly mentioned in Article I, § 9 of the Constitution. Clause 2 states that Congress is not allowed to suspend the writ of habeas corpus except in cases of rebellion or invasion. Does this presume habeas’ existence? If so, what precisely does it entail? As Lord Blackstone tells us, there were many variants of habeas corpus at common law. The point I seek to make is that it has never been entirely clear—nor is it now—what precisely the Constitution mandates. Nor is it clear that it would be unlawful to do away with habeas entirely. The Suspension Clause, after all, only speaks to a suspension and not to a full dismantling. The bottom line: some things may or may not be sufficient “alternatives” to habeas corpus. Although the CSRTs didn’t cut it, other mechanisms have (e.g. the REAL ID act).
Ok, so what do we know? We know that a detainee can petition for his release through habeas corpus under § 2241. That’s about it, though. It’s far from clear that a non-citizen detainee would ever be able to get any further. Why, you ask? Because we see, at this juncture, a departure from how UK and US habeas law operates. As I pointed out earlier, a British court may issue a writ of habeas merely to investigate the legality of detention. In the US, however, the writ only issues after it has already been determined that detention is indeed unlawful. This raises the huge hurdle that any non-citizen detainee must overcome: proving his detention is unlawful. There’s very little reason to suggest that such detainees have constitutional rights. Without such rights, there is no real leg for a claimant to stand on. I would expect the argument to focus on a violation of Geneva Convention rights but I haven’t been following the detainee litigation closely enough to know.
V. HABEAS LAW & DETAINEES IN BRITAIN
Are you starting to see the challenges that a prisoner faces by filing in district court? It strikes me that those who have access to an alternative route (here, habeas under UK law) are probably going to take that route instead of the US path.
The UK, of course, has no base like Gitmo nor—to my knowledge—any equivalent practice of indefinitely detaining prisoners. I think the closest they’ve come is handing over captured persons to the US. Even if the UK wanted to detain indefinitely, I believe that the European Convention on Human Rights (and likely the Geneva Convention) would prevent such detainment. The result is that habeas law (or an alternative mechanism) hasn’t developed in quite the same in Britain. And remember, habeas in the UK remains (to my knowledge) entirely common-law. Thus, we know from the outset that its contours will be less well-defined than if we were working with a statutory regime.
Yunus’ case (which I discussed above) somewhat highlights the path that British law has taken. Before his case, there was Abbasi and al-Rawi.
In R (Abbasi) and Anor v Secretary of State for Foreign and Commonwealth Affairs & Anor,  EWCA Civ 1598, the mother of a British national detained at Gitmo brought an action to compel the Foreign Office to take some sort of action on her son’s behalf. The Court of Appeal swiftly refused, noting that there was no legal duty to take diplomatic action. See id. at . It’s worth noting that Abbasi had also filed a petition for habeas corpus in the US. The court’s opinion also has a discussion of the American legal development on detainees up to that point in time. See -.
Now to al-Rawi. This is a case that is still being litigated in some respects. But we’ll be focusing on the Court of Appeal decision in R (al-Rawi) & Ors v Secretary of State for Foreign and Commonwealth Affairs & Anor,  EWCA Civ 1279. There, the Court of Appeal considered essentially the same prayer for relief under new arguments. The results were the same, however. See id. at .
Yunus Rahmatullah’s case breaks from these prior two cases. Of course, there are excellent reasons why it does. First, there is an argument in Yunus’ case that the UK Government still has ability to exercise control over him. The Court of Appeal says yes, though the Divisional court has said no. In Abbasi and al-Rawi, there was no such “control.” Moreover, Yunus’ cousin sought a writ of habeas corpus whereas neither Abbasi nor al-Rawi did. So, while the Court of Appeal takes a new direction, it’s far from clear that this is a “break” in precedent. And moreover, it’s far from clear that this will be the end of the matter. The UK has indicated its plan to appeal to the UK Supreme Court so things may change yet again.
VI. SOME FINAL THOUGHTS
The intersection of terrorism and habeas is uncharted territory. As the Rasul to Boumediene line in US law shows, indefinite detention of enemy combatants has tested where the limits of habeas are located. Is there jurisdiction over non-citizens? If so, is it geographic or is it more broad? Even if there is jurisdiction, what constitutes unlawful / illegal detention that could be remedied by the Great Writ?
The UK law also shows struggle with jurisdiction – but in a different way. In Yunus’ case, both the Divisional court and Court of Appeal cited older cases (one from the late 19th century and one from the early 20th century) dealing with issues of “control” over the prisoner. There was no suggestion that Yunus’ lack of British nationality and his custody in a foreign country would defeat jurisdiction. That is, the mere fact that British authorities had captured Yunus was enough to make them answerable for the legality of his detention. However, jurisdictional issues creep up with respect to the fact that the UK authorities do not clearly have custody currently.
What a fascinating landscape. The issue of control was never a problem for detainees seeking habeas in America because it’s so patently obvious that the US has control. The problem was how far a court’s authority could extend. Could a court in DC command authorities on leased land in Cuba to do something? The answer, as we know from Boumediene, was ultimately yes. However, what’s noteworthy is that it was a difficult question to answer. Indeed, it led to a 5 to 4 split in the Supreme Court. But this same problem was of little moment to British courts. Why?
Perhaps there are several very defensible answers. First of all, we of course must recognize that habeas in the US and UK have differed in some respects for a while. In the UK, the writ still maintains its place as a proper common law writ that lacks an intricately defined structure. There is no complicated regime of legislation that governs when habeas may be issued. Accordingly, judges are less bound up in considerations of what limits have been placed on them by a political body who wrote the law.
Furthermore, the UK does not have separate “federal” and “state” systems. This is important not because detainees are a matter for the states (it is, indeed, a federal matter). Rather, it recognizes that habeas in America has developed in the context of “federalism” concerns about the reach of federal power. Indeed, the Constitution lists rather explicitly what each political branch can do and in theory (though arguably less true in practice) the federal government does not have “general police powers” akin to what the states have. The result is less freedom to craft the law.
Finally, there is a pragmatic explanation for why UK habeas law is untroubled by the geographical jurisdiction question. Telling the UK government to produce a prisoner does not amount to telling an active military entity how to do its job. In other words, issuing a writ in the British system does not create the same power struggle between judiciary and executive as we have seen in the US. The cases up to and through Boumediene showed clear examples of a power struggle between the Executive branch (don’t tell us how to fight this war) and the Judiciary (don’t tell try to limit our authority by stripping jurisdiction). We can see that asking the UK Secretary for Foreign affairs to get a prison certainly creates a less immediate tension between governing authorities.
That’s what makes the Court of Appeal’s decision in Rahmatullah so fun for a habeas fan like me. We can only expect as time goes on and more habeas appeals are brought that we’ll start to see habeas become more fleshed out in UK law. I for one can’t wait to see how it develops and in what ways it tracks or diverges from American law.