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The Right To Remain SilentSilence is about the only right the Guantanamo prisoners have left.

By Dahlia Lithwick
Posted Tuesday, May 1, 2007, at 6:45 PM ET
Guantanamo Bay. Click image to expand.

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.

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.

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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Dahlia Lithwick is a Slate senior editor.
Guantanamo photograph by Paul J. Richards/AFP/Getty Images.
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