That Reprieve press release: a response from Clive Stafford Smith

by Carl Gardner on November 7, 2012

Following my post yesterday which was critical of Reprieve’s press release about the recent Rahmatullah case in the Supreme Court, Reprieve’s Director Clive Stafford Smith has contacted me to respond.

I’ll set out my own comments on his response in a separate post. But first (with his permission) here’s the text of his e-mail to me:

Dear Carl (if I may)

Thanks for your comments on the Reprieve story about Rahmatullah. Here you have my direct email, so if you want a comment before publishing next time, it will be readily available and may help.

The key point you make is that “the Supreme Court did not say the UK was involved in Mr. Rahmatullah’s rendition – indeed the judgment makes clear the British didn’t know about it at the time”. But, as the Divisional Court found, and was common ground throughout the litigation, this is not right. The British knew the US were intending to ship YR off to Afghanistan, before they did it. And the British did nothing about it. See the Divisional Court’s judgment, para. 8:

In a Parliamentary Written Answer on 6 July 2009 the then Secretary of State for Defence indicated that British officials became aware of the intention to transfer in March 2004, some days after the claimant’s initial capture. They had learned by mid-June that the two individuals had been transferred to Afghanistan.

This was common ground in the Supreme Court. The Supreme Court were well aware that the British well knew of the US proposal to transfer Mr Rahmatullah to Afghanistan, but did nothing. The press release is accurately based on para. 39 of the judgment:

39. Not only should the transfer of the two persons have been questioned at the time that they were removed, it should have been the subject of representation by the UK at the time that the authorities here became aware of it and subsequently. If the UK government appreciated that the transfer was in apparent breach of article 49 of GC4 (and it has not been suggested otherwise) and if, as it should have done, it became aware that Mr Rahmatullah continued to be held in breach of articles 132 and 133, it was obliged by virtue of article 45 to take effective measures to correct the breaches or to ask for Mr Rahmatullah’s return.

The “time the authorities here became aware of it” was before the transfer took place, not afterwards.

The next point you make is that the MoU was not technically an “extradition” agreement. In the technical legal sense, this is right. But for the purposes of a press release, it makes good sense and is readily understandable by the lay reader. The MoUs are an agreement governing the transfer of prisoners from one jurisdiction to another. And this is the first time in at least 150 years that the US has reneged on an agreement with the UK governing prisoner transfer. The point being made is one that we both share. We agree that (as you put it) “It suggests little respect from the Americans for their commitments, even though not formally binding ones, to the British”.

Your last point is that the quote from Kat Craig only refers to the detention being found to be “unlawful” rather than “prima facie unlawful”. This is also semantically true, so far as it goes. But it would have been fairer for you to note that the body of the press release quotes the relevant passage twice. As a result, I doubt anyone misunderstood.  I suppose it is fair to say that few press releases can withstand being read as a statute.

Finally, I am glad that we agree that the real story here is what the bulk of your piece rightly addresses: the “dodgy” conduct of the UK and US governments in leaving a man in a legal black hole from which, at the moment, he seems to have no prospect of escape.

Clive

He added:

Really what the UK did here is shameful. The truly embarrassing story that has not been properly told is that Amanatullah Ali was mistaken (by the Brits and all the way through many years  by the US, as reflected in the list of prisoners at Bagram) as the LET chief Ahmad Dilshan. That is why they got so excited about their prisoners, and why they have not wanted it all exposed. Of course we now know (although the UK has never admitted) that Amanatullah is a Shia rice farmer and therefore could no more be a member of the very Sunni LET than you or me. We also know that he had an entirely innocent reason to be in Iraq, since the Shia holy sites there had only just been reopened to visitors like him, in the wake of Saddam Hussein’s fall. So not only has Amanatullah, and Yunus, been held illegally for most of a decade, but this is yet another example of false intelligence, illustrating as powerfully as ever one could why the development of the rule of law over the last 800 years has been a good idea.

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