Today Jonathan Hafetz of the Brennan Center posted on Slate’s Convictions blog the compelling tale of Libyan detainee Abdul Hamid Abdul Salam al-Ghizzawi and a decision by a D.C. district court judge to refuse him adequate medical care while he’s detained at Guantanamo. Al-Ghizzawi suffers from a “severe liver condition,” and charges that the government is endangering his health by refusing him proper medical treatment. (According to a petition by Amnesty International, al-Ghizzawi has been diagnosed with tuberculosis and hepatitis B.)
In his decision (PDF), Judge John Bates denied al-Ghizzawi’s claim that he’s been improperly refused adequate medical care, and Judge Bates used an Eighth Amendment argument to do so. Hafetz writes:
Judge Bates denied relief, finding the treatment al-Ghizzawi had received was adequate. But his reasoning highlights the fundamental injustice at the heart of Guantanamo: Bates suggested that al-Ghizzawi’s claim should be analyzed under the same legal standard applied to convicted prisoners under the Eighth Amendment, which prohibits ‘cruel and unusual punishment.’
There is a poignant irony here. While Judge Bates applies the Bill of Rights and U.S. law to deny rights to Guantanamo detainees, the Constitution seems to have no place in the Bush administration’s plans to prosecute detainees in its military commissions, which uses secret evidence, hearsay and evidence gained through torture.
Jamil Dakwar, Director of the ACLU’s Human Rights Program, pointed to a similar double-standard with the military commission hearings in Guantanamo. The Military Commissions Act created a system that allows prosecutors to use evidence that the defendants cannot see or even know about, leaving defense counsel to feel its way in the dark about how to defend its client, who might have no idea why he’s being charged and with what evidence. Jamil finds the situation Kafkaesque:
As in the famous Franz Kafka piece “Before the Law,” [Guantanamo detainee] Al-Qosi has waited “to gain entry into the law” only to discover that this unjust system was created for him (and the others declared “unlawful alien enemy combatants” by the Bush administration). In the Kafka story, the man who waits at the door until he is about to die asks the doorkeeper why, even though everyone seeks the law, no one else has come in all the years. To this question the doorkeeper replies: “No one else can gain entry, since this entrance was assigned only to you. I’m going now to close it.”
Jamil was in Guantanamo overseeing the hearings as a human rights observer. You can check out all three of this blog posts in our DailyKos diary, and listen to a podcast of his thoughts on the proceedings at /multimedia/gitmo_dakwar_042008.mp3.