Clive Walker on Rahmatullah
Clive Walker, a professor of law at the University of Leeds, responds to the following comment in my Rahmatullah post: "It’s funny how courts discover deference when they realize that they have no power anyway. . . . British and American officials alike, I suspect, will breathe a little easier knowing that the court has figured this out."
Writes Walker:
We shall see. The courts are realistic enough to know when a habeas corpus remedy looks futile.
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Clive Walker, a professor of law at the University of Leeds, responds to the following comment in my Rahmatullah post: "It’s funny how courts discover deference when they realize that they have no power anyway. . . . British and American officials alike, I suspect, will breathe a little easier knowing that the court has figured this out."
Writes Walker:
We shall see. The courts are realistic enough to know when a habeas corpus remedy looks futile. But there is still a breach of the memorandum of understanding and possibly a breach of the Geneva Conventions (points expressly left open at para.14 -- maybe another nod and a wink?). Plenty of mileage in these claims yet. While American officials might be feeling smug in their attitude to international law and their feeble military partners, I rather think that British officials will be more apprehensive. Having been bitten by Binyam Mohamed and others, the principle that the British state is liable in the British courts for breaches of rights engineered in foreign territories where effective control is established is now clear enough.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
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