Thursday, April 20, 2006

One Guantánamo Inmate May be British, and May be Freed

Further to the list of Guantánamo inmates linked by Nicki below, there may well be a change in one the listed cases fairly soon, due to two recent decisions by English courts: R (Hicks) v. Secretary of State for the Home Department [2005] EWHC 2818 (Admin) (High Court of Justice, Queen’s Bench Division, Administrative Court, before Collins J), Secretary of State for the Home Department v. Hicks [2006] EWCA Civ 400 (Court of Appeal, Civil Division, before Pill, Rix and Hooper LJJ).

One of the Guantánamo inmates is Mr David Hicks, who was captured by Northern Alliance forces in December 2001 and transferred to Guantánamo Bay in January 2002. He admitted that he had been to training camps in Afghanistan and that he there received training in weapons and guerrilla warfare.
Mr Hicks was until recently believed to be of Australian nationality, and of Australian nationality only. This did not present the Bush administration with any serious difficulties, as the Australian government had declared that they would in no way challenge the detention of any Australian citizens at Guantánamo Bay, believing that the detention and the planned prosecution before Military Commissions were permissible.

However, Mr Hicks found out recently that he was, by reason of descent, eligible to be registered as a British citizen. This obviously held great appeal for him, because the British government has long been particularly unhappy about US plans in relation to Guantánamo Bay, and has already used its influence to secure the release of British inmates.
Mr Hicks therefore applied to the Secretary of State for the Home Department to be registered as a British citizen. The application was refused on grounds specified in the relevant British Act of Parliament, the British Nationality Act 1981.
Mr Hicks applied to the High Court for judicial review of this decision, and was in the event successful. While the judgment of Collins J of 13 December 2005 is mainly concerned with fine questions of construction of the British Nationality Act 1981, it does make fascinating reading in some parts. In particular, Collins J, a notable international lawyer (otherwise known as Sir Lawrence Collins), made very clear quite what he thought of the regime imposed by the US administration at Guantánamo Bay.
For example, he said that ‘[t]he Military Commission quite obviously does not provide the missing remedy and in any event it is itself an entirely unsatisfactory and potentially unjust means of trying and possibly ordering the very lengthy imprisonment of the claimant’ (para. 12 of his judgment).
More relevantly, he concluded his judgment by stating that ‘[o]nce he is a British Citizen, he should be entitled to all assistance which can be given to a British citizen. There is no doubt that Her Majesty's Government has a discretion as to what assistance should be given (if any) in a given case. But in my view it would be improper to fail to give assistance which would otherwise have been given simply because the claimant was believed to be involved in terrorism and has not had any previous connection with this country’ (para. 39 of the judgment).

The Court of Appeal gave its judgment last Wednesday (12 April 2006), and for its part dismissed the appeal brought by the Secretary of State.
The Court of Appeal did not decide whether the Secretary of State could lawfully revoke Mr Hicks’ citizenship, once it has been granted in accordance with the judgment, so this remains a possibility. However, the Court did decide that Mr Hicks could not be deprived of British citizenship because of the things he had done in Afghanistan in 2000 and 2001. These could only be relevant if he continued to hold views disloyal to the United Kingdom after his registration as a British citizen, and if he said or did anything to this effect from that moment on, for example by expressing approval of his past deeds. A fresh assessment by the Home Department was held to be necessary.
It remains to be seen whether the Secretary of State does find sufficient evidence of any remaining disloyalty to the British Crown, and if any possible decision to revoke Mr Hicks’ British citizenship survives challenges in the English courts.

For now, it appears to be likely that the British government will come under considerable public pressure to also secure the release of Mr Hicks from US custody. Indeed, such a request will probably be formally addressed to the Secretary of State for the Foreign and Commonwealth Office by Mr Hicks’ lawyers, and any refusal on his part may again be reviewed by the courts: see R (Abbasi) v. Secretary of State for the Home Department [2002] EWCA Civ 1316, [2003] UKHRR 76.
Whether the US government will play ball is, of course, another matter entirely.

How interesting to see that Guantánamo Bay leads to so much litigation even in countries other than the United States.
The courts of the United States, in turn, would do well to note that their decisions are closely watched by many other judges around the world.