A Victory both Great and Small

Last Friday, U.S. District Judge Gladys Kessler entered an order in Al Razak v. Bush that was a breath of fresh air for Guantánamo habeas counsel. The government’s position was that Mr. Al Razak, who had not signed a form asking for legal representation also did not have a proper “next friend” and that the case should be dismissed. "Next Friends" are other detainees who have asked their own attorney to file a habeas petition on behalf of a detainee who does not have a lawyer. No lawyer can meet with a detainee without a "protective order" being entered that outlines the rules for counsel visit and handling of "classified" information. The government tries to throw out the "next friend" cases before an attorney can get the protective order entered and meet with the detainee to ascertain if they want an attorney.

However, Judge Kessler recognized the following to be true of Mr. Al Razak and his situation:

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.

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

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.

Kessler’s order denied the government’s motion to show cause and entered the protective order that will allow Mr. Al Razak’s attorneys to access their client.

This order is good news for Mr. Al Razak and a victory for his lawyers. However, as with other Guantánamo cases, Judge Kessler granted the government’s motion to stay the proceedings until the completion of related appeals. These stays have delayed justice for hundreds of detainees as Kessler herself seemed to recognize,

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 Guantánamo Bay cases.

Still, in the bleak world of Guantánamo litigation, Kessler’s order and the frankness of its language came as a ray of sunshine.