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

By Dahlia LithwickPosted Tuesday, May 1, 2007, at 6:45 PM ET

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Neal Katyal described the flaws in the Guantanamo tribunals, and Brandt Goldstein explained how Bill Clinton laid the groundwork for today's Guantanamo. Emily Bazelon covered the Gitmo arguments at the federal appeals court, and Dahlia Lithwick evaluated the government's best evidence against the detainees. Lithwick argued that the Bush administration can't close Guantanamo for reasons that are more ideological than practical.

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.