Law and Lawyers 14th December 2011. It now appears that the British Government has asked the United States to return him to British custody but the government has been granted further time (18th January) to obtain his production - see Telegraph 21st December 2011. It is not yet clear whether the US will comply with this request though Memoranda of Understanding (MoU) existed between the UK and US governments relating to Transfer of Prisoners of War, Civilian Internees and Civilian Detainees. Details of the MOU are in the Court of Appeal judgment.
English Courts are careful when issuing writs and orders since they have to be enforceable. Consequently, it is essential that those to whom the writ or order is directed are basically able to comply with it. The primary purpose of the habeas corpus writ is the physical production of the person concerned ('the applicant') before the court - (see Court of Appeal judgment at para 26).
The effectiveness of the
writ depends, in this case, on the effectiveness of the MoU. This is the heart of the case and it may prove to be the weak link if the Americans refuse to comply with the request. If Washington refuses to hand over Rahmatullah it would strike at the trust which is necessary between allies during times of conflict. For years neither the British nor the Americans would admit that Rahmatullah, and a second Pakistani national Amanatullah Ali, had even been captured. Both men have been held incommunicado for the past seven years and have been refused access to a lawyer.
It also appears that the Foreign Office has been granted leave to appeal the Court of Appeal's judgment to the Supreme Court on a "point of law." The decision of the High Court (Laws LJ and Silber J) was overturned by the Court of Appeal.