Ben Wittes’ Appalling Take on Rahmatullah

Readers interested in watching Ben Wittes desperately try to spin British condemnation of the U.S. approach to the war on terror need only check out his post today on Rahmatullah.  As I discussed a couple of months ago, the British Court of Appeals held that Rahmatullah was entitled to be released from U.S. custody because the U.S. had rendered him from Iraq to Afghanistan in violation of the Fourth Geneva Convention.  No one ever expected the U.S. to release Rahmatullah; the U.S. has a long and ignoble history of ignoring criticism from abroad, even when that criticism comes from its close allies.  And that is exactly what happened: the U.S. refused to release him.  So three days ago the Court of Appeals issued a new decision stating that there was nothing more it could do to enforce its writ of habeas corpus.

Enter Wittes, seeing the sordid affair as some kind of reaffirmation of American goodness and virtue:

It is always an awkward spectacle when a court has to climb down, having issued an opinion that it has no real power to effectuate. That’s what has now happened in the British Court of Appeals in the case of Yunus Rahmatullah. The opinion, which came down today, is a faintly-embarrassing retreat from the judicial arrogance with which this case began. The Rahmatullah case began with a roar, but it ends with a whimper.

Rahmatullah, you’ll recall, is the Pakistani detainee held at Bagram by U.S. forces but who was captured by British forces in Iraq in 2004 and transferred to American custody. Back in December, as Bobby explained at the time, the British court ruled that he was being unlawfully detained and issued a habeas writ compelling the British government to seek his return so that he could be freed. In that opinion, the judges were making a statement of sorts–a statement of impatience with supposed American lawlessness and with the war paradigm for counterterrorism. They were ordering the British government, on pain of contempt, to confront these evils, at least as to this one detainee.

[snip]

And in today’s opinion, the same British court that ordered this whole Kabuki dance concluded that, well, yes, this was, in fact, good enough. The tone of the opinion today is very different from the tone of the one in December.

This interpretation of the decision may comfort Wittes, but it bears no resemblance to what the Court of Appeals actually wrote.  Here are the most important paragraphs:

16. The melancholy truth is that the events since we handed down judgment appear to establish that (i) when the UK defence forces handed over the applicant to the US authorities in questionable circumstances in 2004 (see [2011] EWCA Civ 1540, para 9), they most unfortunately appear to have sold the pass with regard to their ability to protect him in the future, and (ii) Mr Parmenter of the MoD turns out to have been right when he said that he thought that the issue of a writ of habeas corpus would, in terms of its practical outcome for the applicant, be a ‘futile course of action’ (see [2011] EWCA Civ 1540, para 21).

17. That does not mean that the issue of the writ of habeas corpus was a pointless exercise in this case: it performed its minimum function of requiring the UK Government to account for its responsibility for the applicant’s detention, and to attempt to get him released. This case is an illustration of (i) the court performing perhaps its most vital role, namely to ensure that the executive complies, as far as it can, with its legal duties to individuals, in particular when they are detained, and (ii) the limits of the powers of the court, as a domestic tribunal, in that its reach cannot go beyond its jurisdiction, and that jurisdiction does not extend to the US military authorities in Afghanistan.

So, in Wittes’ view, it is “judicial arrogance” to point out that the U.S. violated the Fourth Geneva Convention when it rendered Rahmatullah from Iraq to Afghanistan (and that British authorities should never have handed him over in the first place).  And it is “a faintly-embarrassing retreat” from that “judicial arrogance” to reaffirm that the U.S. violated the Fourth Geneva Convention and acknowledge that, in light of the U.S.’s willingness to ignore one of its closest allies, there was nothing more the court could do to remedy the violation.  Apparently, Wittes believes that the Court of Appeals should have ordered the British military to invade Bagram and free Rahmatullah.

Finally, note Wittes’ reference to “supposed American lawlessness.”  I guess that it’s “supposed” because Wittes personally disagrees with the Court of Appeals’ careful analysis of the Fourth Geneva Convention issue.  Far be it from him to explain why it was legal for the U.S. to transfer Rahmatullah into occupied territory.  Indeed, Wittes does not even bother to defend the Yoo-like memo written by his co-blogger, Jack Goldsmith, that the Court of Appeals repudiated in its first decision and repudiates again in this one.  Better to simply accuse British judges of being arrogant wussies.

I guess legal argument is for wussies, too.  Real men like Wittes engage only in empty rhetoric.

UPDATE: Ben links to my post at Lawfare and asks, sarcastically, what I really think about his post.  That’s one of the things that I genuinely like most about him: he can take it as well as dish it out.  Unlike someone like David Bernstein, who complains endlessly when someone uses the same kind of rhetoric toward him that he regularly uses toward others — this post, in which Bernstein said he’d engage in “honest, intelligent debate” about Israel with Glenn Greenwald only if Glenn “promise[d] to blog more responsibly in the future,” made my entire week — Ben knows full well and accepts that when you write as tendentiously as he does, others (i.e., me) are going to respond in kind.