Resisting Guantanamo: Rights at the Brink of Dehumanization

Abstract

The Supreme Court's June 2008 decision in Boumediene v. Bush, granting constitutional habeas corpus rights to terrorist suspects at Guantanamo Bay, appeared to usher in a rights moment in which legal advocacy achieved transformative results. But the history of rights-based litigation at Guantanamo suggests that such victories often are fleeting, with court pronouncements failing to produce the meaningful change - freedom of prisoners, closure of Guantanamo - expected of such landmark decisions. This reflects not simply a failure of the courts, but a limitation of rights in the face of extreme state violence.

This Article argues that the work of rights - and of lawyers - at Guantanamo is best understood not as an example of transformative legal practice, but as a form of resistance to dehumanization. Guantanamo has proven to be a project of dehumanization, achieved through three forms of erasure of the prisoners' humanity: cultural erasure through the creation of a terrorist narrative; legal erasure through formalistic legerdemain; and physical erasure through torture. Because Guantanamo was defined by the Administration as rights-free, it placed the very value of rights-based advocacy in doubt, raising the question: Why adopt a rights-based strategy in a rights-free zone? Drawing on the author's experience representing a Guantanamo prisoner, the Article considers various theories of rights, concluding that rights at Guantanamo may not be able to achieve the transformative results of prisoner freedom or prison closure, but nonetheless do the important work of maintaining prisoner humanity. A comparison between the rights-based litigation brought by the prisoners' lawyers and the hunger strikes engaged in by the prisoners themselves illuminates the nature of such resistance, its potential, and its limitations.

Keywords: rights, human rights, Guantanamo, war on terror, terrorism, military commissions, resistance, lawyering