The Washington Post ran a story yesterday that seems thus far to be flying under the radar.
On Friday the Justice Department asked U.S. District Judge Gladys Kessler to rule that an Afghan detainee being held at Guantanamo has no right to ask for the intervention of any U.S. court in his case due to the standards set by the Military Commissions Act. Judge Kessler apparently didn't play along.
More below the fold.
The following is a portion of her denial of the government's motion:
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
I don't know what I find more encouraging: that a District Judge has so quickly decided to call the legality of the MCA into question, that this might be the means by which the MCA works its way to the Supreme Court, or that The Washington Post found her words to be so powerful that they were run practically verbatim.
Let the games begin.