Silence is about the only right the Guantanamo prisoners have left.

Silence is about the only right the Guantanamo prisoners have left.

Silence is about the only right the Guantanamo prisoners have left.

The law, lawyers, and the court.
May 1 2007 6:45 PM

The Right To Remain Silent

Silence is about the only right the Guantanamo prisoners have left.

Guantanamo Bay. Click image to expand.
A guard and a detainee at Guantanamo Bay

Nobody seems to mind all that much when the Bush administration nibbles away at the rights of the almost 400 prisoners still being held at Guantanamo Bay. Maybe we figure that if they didn't deserve the really important rights we've taken away (to speedy trials, say, or to due process in challenging their detentions), they can't possibly merit the lesser ones (such as the right to hunger strike or the right to an attorney). Last fall, through the Military Commissions Act, Congress stripped everyone at Gitmo of the right to petition for habeas corpus relief in the federal courts, barred them from invoking the Geneva Conventions in federal court, and allowed secret evidence to be used against them at trial. Now, using an elegantly Zenlike circular argument, the administration contends that since they have no real procedural rights anymore, they probably won't be needing their funny little lawyers to enforce them.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

The island that houses the prison at Guantanamo is shrinking every day as a legal matter, but it's worth reminding the president that even at this rate, it's never going to disappear.

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Last week, the Justice Department quietly filed a motion with the Court of Appeals for the D.C. Circuit that would cap the number of visits by civilian defense lawyers to their clients at Guantanamo at three. Ever. Attorney-client mail would no longer be private. These requests are grounded in the brazen claim that civilian attorneys foment unrest at the prison. Perhaps if the detainees were to be completely isolated and ignored, they would realize how happy they are.

This week, the U.S. Supreme Court also declined to hear the claims of two detainees appealing the constitutionality of last year's MCA. The court had done the same thing just last month but did so this time without a written explanation. The high court elected to sit this one out, allowing for the military tribunals to proceed, with only the promise that the court might intervene at a later date.

And yesterday, the Justice Department filed a motion with the Supreme Court claiming that the U.S. courts have absolutely no role to play in overseeing where Guantanamo detainees will be released to, even if they're headed somewhere they claim they will face torture. Abu Abdul Rauf Zalita seeks to have his transfer stayed because he claims he "faces a grave risk of arbitrary detention, torture, persecution and extrajudicial assassination at the hands of the dictatorship of Colonel Muammar Al-Qadhafi." I'm going to wager that he feels pretty strongly about that if he's begging the government to let him stay on the island for even another day.

Now, the Bush administration doesn't just tell the court that it can't look at these claims as a result of the jurisdiction-stripping provisions of the MCA. Amazingly, in a supporting document, the government claims that (after years of doing nothing about anything at Guantanamo) it's the need for speedy dispositions of cases that demands that judicial review be bypassed.

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No constitutional rights, no right to habeas, limited rights to confer with lawyers, no rights to ask a court that you not be shipped home to the tender ministrations of Col. Qaddafi. It's not simply that the detainees have fewer and fewer rights. It's become almost impossible to determine what rights they do have, beyond the right to wait for some vestigial other right to be snatched away. In the wake of the federal appeals court determination last February that a detainee "without property or presence in this country has no constitutional rights, under the due process clause or otherwise," and with the Supreme Court refusing to step in, whatever remaining statutory rights they may have will be evaluated with great deference to Congress and the administration. As Lyle Denniston describes it, "the legal status of the detainees overall is currently at its lowest ebb since just before the Supreme Court stepped in, in 2004."

Here is the problem for the Bush administration: Guantanamo is an embarrassment. It's an embarrassment because it's been the most grievous and enduring symbol, at least internationally, of how far this government has strayed from basic principles of the rule of law. It's such an embarrassment that even Secretary of State Condoleezza Rice and Defense Secretary Robert Gates urged, futilely, that the facility be closed down. As has John McCain. And since government embarrassment is now Guantanamo's sole export, the principal government goal now appears to be stopping that embarrassment at any cost.

That's why of the 700 "worst of the worst" we were holding at Guantanamo, hundreds have been quietly released without comment, and 82 others are cooling their heels, waiting for some country to agree to take them. It's why the hunger strikers have feeding tubes shoved down their throats. It's the government's own stated reason for limiting meetings and opening mail between civilian attorneys and their clients there—to keep the prisoners from getting uppity. It's why we need to quickly ship folks back to Libya without a determination that they may live to tell about it.

And the real problem at Gitmo, adds Karen J. Greenberg, executive director of the Center on Law and Security at NYU law school, is that even after you funnel all 60 or so prisoners who are still awaiting their not-yet-begun "trials" through to their quite inevitable findings of guilt, you still have at least 160 more "who will most likely never be charged, never be tried, and may nonetheless never be sent home." These are the folks whom, no matter how thin the evidence and how cooked the proceedings, the government still can't make a case against, yet doesn't want to release. The Bush administration has absolutely no clue what to do with these people, and they aren't going to figure it out. So, the new legal strategy seems to be: Stop them from embarrassing us. That means no contact with attorneys who might tell your stories of torture and abuse to the outside world. It means no awkward hunger strikes that might garner world sympathy. It means doing everything you can to make even the "black hole" there disappear. What the government really needs is for the folks down at Guantanamo to stop complaining, stop talking, and stop trying to kill themselves.

So, seeing as it's Law Day, perhaps instead of asking the boring and abstract questions about which new rights the Gitmo detainees have lost in the past week, we should ask ourselves what rights all these people—some of whom are there by mistake or misunderstanding—do have. I can't name a whole lot of them. I guess they have the right to wait around and grow more desperate, so long as they don't off themselves. It's a strange paradoxical right: To disappear a little bit more every day, without ever fully fading away.