Habeas Corpus and the Endurance of Legal Black Holes: a Case Note on Rahmatullah v Secretary of State for Defence

Abstract

This case note discusses a sequence of litigation at the centre of which is a decision of the British Court of Appeal to grant a writ of habeas corpus in favour of Yunus Rahmatullah, currently held by the United States in Afghanistan. Originally captured by British forces in Iraq, the writ required the British government to ask for Mr Rahmatullah’s return to British custody. This note assesses the application of the writ at each stage of the litigation. Habeas corpus allows much judicial discretion and the note discusses how this discretion was exercised in the litigation. The litigation sits within the larger issue of foreign affairs justiciability. The executive’s foreign affairs conduct is no longer judicially off-limits, and this note also addresses how the High Court and Court of Appeal approached this issue in their decisions concerning Mr Rahmatullah’s habeas corpus application. The note looks at factors that enable greater judicial scrutiny of executive conduct in the area of foreign affairs, and situates the Court of Appeal’s decision within this context. The note ends with the Court of Appeal decision concerning the British government’s return of the writ.