The government has refused to give an undertaking not to take advantage of any intercepted communications between a former detainee, who is suing the Ministry of Defence, and his lawyers.
The dispute between Yunus Rahmatullah and the MoD is the latest to become entangled in concerns over the legality of intelligence services’ interception of legally privileged conversations.
Exchanges between lawyers and their clients enjoy a special protected status under the law. The government has previously given an undertaking in another case, that of the Libyan dissident , not to read or listen to any of his legally privileged material.
But the MoD maintains that there are already sufficient safeguards in place for regulating the obtaining or use of any private exchanges between Rahmatullah and his legal representatives. Those handling legal cases are not supposed to see intelligence material relating to the case in which they are involved.
Lawyers at the human rights group Reprieve represent both men in their claims against the MoD and Foreign Office (FCO) for compensation over their treatment. Belhaj and his family were forcibly returned to Muammar Gadaffi’s regime in Tripoli. Rahmatullah’s lawyers do not want the MoD to gain any unfair advantage in the case by reading private exchanges.
Rahmatullah, a Pakistani citizen, accuses the MoD and FCO of allowing him to be subjected to torture and severe abuse over a period of 10 years. He was captured by British special forces in Iraq in 2004 and handed over to US troops soon afterwards. His experiences were initially kept secret from ministers and only disclosed to MPs five years later, in 2009. Rahmatullah, 31, was released by the US without charge in May last year.
He is believed to have been held first at Camp Nama, a secret detention facility at Baghdad airport that British troops helped to run. He was later transferred to Iraq’s notorious Abu Ghraib jail before being rendered to the Bagram “black prison” in .
The court of appeal ruled in 2011 that Rahmatullah was unlawfully detained and ordered a writ of habeas corpus – the ancient British legal right to be charged or released from arbitrary detention – to be issued.
However, lawyers acting for the government later successfully argued in the supreme court that British ministers had no power “to direct the US” to release him from Bagram.
Rahmatullah claims he was at various times beaten unconscious, shackled, hooded and subject to simulated drowning. Commenting on the claim, the MoD has said: “These allegations of wrongdoing by UK soldiers – which have been made 10 years after the event – are already being investigated by the Iraq historic allegations team. As the case is subject to ongoing legal action we are unable to comment further.”
Kat Craig, the legal director of Reprieve, who has visited Rahmatullah in , said the undertaking sought was almost identical to the one obtained for Belhaj although it expanded the definition of legal privilege to include metadata – information about who has been in contact with whom and the timings of any exchange.
The draft undertaking, which also refers to the case of another Pakistani former detainee, Amanatullah Ali, asks the government to “take all reasonable steps to ensure they do not read, listen to or otherwise use or take advantage of the claimants’ legally privileged material, whether collected by the defendants, [the intelligence services] or provided to them by foreign governments and intelligence agencies.”
Earlier this year the government admitted that the regime under which UK intelligence agencies, including MI5 and , have been monitoring conversations between lawyers and their clients for the past five years was unlawful because the safeguards under which they operated were not made sufficiently public.
Craig said: “Not content with complicity in the torture, rendition and decade-long secret detention of Mr Rahmatullah and Mr Ali, the UK is now trying to prevent them from achieving justice.
“Why would any government otherwise refuse to implement safeguards that only serve to achieve a fair balance – and protect an age-old legal principle that is a cornerstone of our justice system? By preventing our clients from communicating privately with their legal team, and fairly and robustly seeking the justice they so sorely deserve, the UK government is holding itself above the law.”
The MoD confirmed that it had been asked to sign an undertaking relating to the handling of legally privileged material. It said it had declined to do so, however, because it considers it unnecessary.
The code of practice on the Interception of Communications Act 2002 and the Regulation of Investigatory Powers Act 2000, in addition to other statutory provisions in law already provide comprehensive safeguards for the protection of legal professional privilege, the MoD added.