washingtonpost.com
A Judge's Sharp Opinion

Monday, December 4, 2006

U.S. District Judge Gladys Kessler issued a blunt indictment Friday of the Bush administration's legal handling of prisoners at the Guantanamo Bay Naval Base in Cuba. Frustrated with the plight of prisoners held without charges for years at the base, Kessler expressed disgust with the federal government's repeated efforts to block courts from hearing detainees' complaints.

Kessler's written opinion was particularly unusual in that it came in a ruling about a technicality. The Justice Department had asked her to dismiss the complaint of an Afghan detainee, Hamid al-Razak, and to bar him from ever seeking the court's help. Below is a portion of her denial of the government's motion:

-- Carol D. Leonnig

The Petitioner . . . identifies the legal, cultural, and psychological isolation in which the detainee exists which demonstrate his inability to challenge the legality of his detention. They are as follows:

He is a resident of Afghanistan.

He has had virtually no contact with the news media or any word from outside the closed Guantanamo prison system for over 3 years.

He has had no contact with his friends or family members outside Guantanamo.

He is unfamiliar with the United States Court System.

He does not speak English.

He likely does not know what the term Habeas Corpus means.

He has no criminal charges against him.

He has every reason to distrust his captors and keepers.

He has every reason to rely on the friendship with other detainees, who speak his language and suffer the same disabilities.

He has every reason to challenge his confinement.

No party outside Guantanamo is aware of the specific camp in which he is being detained, nor the "grade" or "level" of detention he is presumed to be, each level being determinative of the privileges he receives.

He does not have access to a law library.

He cannot communicate with his attorney, nor does he even know at present that he has an attorney.

He has no expectation of release, ever.

In light of these facts, there can be little doubt in the Court's mind that Mr. Al Razak is not able to challenge the legality of his detention. . . .

The fact that some of the unfortunate petitioners who have been detained for many years in the terrible conditions at Guantanamo Bay have been knowledgeable enough to file their own petitions certainly does not demonstrate that Mr. Al Razak himself had either the sophistication, or confidence in the American justice system which has so delayed ruling on his status without even filing criminal charges against him, or the physical or mental stability, to do so on his own.

Finally, the Government has offered no evidence to contradict Petitioner's statements that he . . . knows that Mr. Al Razak wants a lawyer to assert his legal rights. . . .

In numerous cases, the Court has felt compelled, for purposes of judicial economy and efficiency, to grant Respondents' Motions to stay proceedings of the Guantanamo Bay cases until completion of related appeals. The longer those appellate proceedings drag on, the more problematic it becomes as to whether a stay serves the interest of justice. It is often said that "justice delayed is justice denied."

Nothing could be closer to the truth with reference to the Guantanamo Bay cases.

Gladys Kessler

United States District Judge

View all comments that have been posted about this article.

© 2006 The Washington Post Company