Ben Wittes’ Appalling Take on Rahmatullah

by Kevin Jon Heller

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.


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.

12 Responses

  1. Kevin, as Emeril might say, “Bam!”  Or, as is said in the wonderful exclamatory affirmative declarative form in Texas, “Tell you what!”
    Righteous fire!  Now let us turn to Obama and ask for the rule of law even in an election year – not the law of the jungle as we have had from Bush and Obama in the detention space.

  2. Lawfareblog is starting to feel like Fox News.

  3. Ben,

    I don’t think that’s fair to the blog.  Vladeck is very progressive and Chesney is one of the most sophisticated and interesting conservative national-security law scholars in the U.S.

  4. Possibly so – but my worry for them is that they are like Juan Williams on Fox – more credulous than warranted.  I remain skeptical of the labels of progressive and conservative placed on either of them or on many people in this space.  I find siding with JAG’s being sometimes viewed as progressive which to me is curious as I never thought of JAG’s as leftists.  No, there is something different happening here and what it is ain’t exactly clear.  Something more like political branch deference or different emphases in the US foreign relations law space around a common Executive dominance (unitary or not).  It is a narrow space between the group of them over there at Lawfare from what I have seen.

    I feel grave unease about what my government is doing right now and has been doing for the past 11 odd years.


  5. As someone who was taught by Prof. Vladeck, I can confirm that he is indeed progressive. He also always seemed very cautious to me, so if you’re looking for an All Guns Blazing rhetorical-type progressive, he’s probably not your guy.

  6. Nope, the AGBRTP is me…

  7. Kevin, I don’t think there was any substantive point here that could not have been made – and made more persuasively – without the personal attacks, insults, and ad hominem.  I have no problem with a lively style of debate, but I object to the tone here.

  8. Ken,

    So I assume you sent an equivalent comment to Ben, complaining about his attacks, insults, and ad hominem on the British judges in Rahmatullah? And to David Bernstein, complaining about… well, basically all of his blogging?

    I realize that you now have a vested interest in protecting your co-bloggers at Lawfare and Volokh Conspiracy.  I just hope you’re being consistent with your complaints.

  9. Kevin, I don’t think a reasonable person would think that the tone of Ben’s post compares to the tone of yours.  Reasonable persons might differ, I suppose, but no, I don’t think that Ben’s post requires a reminder as to civility, whereas, yes, I think yours does.  I’m in favor of lively, not in favor of snark, and I think you cross the line here.  Other readers might well like it; I don’t.  

    As for vested interests … well, I have long had a vested interest, I thought, in maintaining the general civility of this blog. What I think, actually, is that your immediate move to attack me personally for something that is frankly extraneous to the topic is just more ad hominem.  I pull my weight on this blog, thanks very much, and I appreciate how much time and effort you put into OJ.  But I do object to the tone and personal attack featured in this kind of post.

  10. I had to re-read the post like twice in order to figure out what it was that offended Kenneth Anderson’s sensibilities.
    And I still can’t find it.

  11. Ken,

    Apparently, incivility only offends you when it comes from someone you disagree with politically.  Either that or, because you share Ben’s contempt for the British Court of Appeals, you are not able to recognize just how offensive Ben’s rhetoric was — the blog equivalent of him sticking his fingers in his ears and going “nyah, nyah, you can’t have Rahmatullah.” I’m quite confident that a reasonable person would view attacking judges for their “judicial arrogance” without even attempting to explain why the judges’ decision was legally incorrect (which it wasn’t) as both uncivil and ad hominem.

  12. By the way, what is ad hominem about pointing out that you apparently object to only one kind of incivility — that coming from the left? Pointing out that your argument is undermined by its selectivity is not an attack on your character.

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