Captive Taliban in for long stay

 

fdavies@herald.com

WASHINGTON -- Defying its closest allies, the Bush administration is determined to keep hundreds of suspected terrorists in detention indefinitely in Guantanamo, Cuba, to assist a global investigation meant to prevent more terrorist attacks.

In one of the administration's strongest comments yet, White House counsel Alberto Gonzales said none of the 158 detainees in Guantanamo would qualify for prisoner of war status, despite the urging of Germany, the Netherlands, the European Union and human rights groups.

"We have determined that they are not POWs and there is no doubt about their status, " Gonzales said. "They are not going to become POWs."

The POW question is crucial to how the administration plans to bring to justice what officials call "the worst of the worst" - members of al Qaeda and Taliban fighters from Afghanistan.

This week, a European outcry over the treatment of the prisoners held at Camp X-Ray in Guantanamo overshadowed even larger questions U.S. officials must resolve soon:

How long will the detainees be held? What kind of justice will they face? Will some be sent home? Will the Navy base in Cuba become a penal colony for captives taken in a protracted global war on terrorism?

The complexity of the legal issues facing the United States, which is holding prisoners from at least 10 nations, was underscored Thursday when British Foreign Secretary Jack Straw said "it was far preferable" for three captured Britons suspected of belonging to the al Qaeda terrorist network to face justice in Britain.

Although Defense Secretary Donald Rumsfeld has acknowledged that some prisoners may eventually be returned to their home countries, many questions remain unanswered.

"The Pentagon has never faced anything like this before, at least on this scale, " said John Hutson, a retired rear admiral and former judge advocate general in the Navy.

"This is a very difficult situation because we have all these prisoners - whatever you call them - and we don't have the legal vehicle in place to deal with them, " said Hutson, dean of the Franklin Pierce Law Center in Concord, N.H.

The detainees could eventually total 1,000 if a permanent jail facility is built, according to a spokesman for the U.S. Southern Command, which oversees forces in the Caribbean and Latin America.

However, the outcry among critics may grow as the prisoners remain in their open-air cells. The U.S. armed forces have not yet begun work on the permanent complex, which means some of the prisoners will spend more than two months exposed to the elements.

So far, the 158 captives are a mixed lot, including young fighters from at least 10 countries, the chief of staff of the Taliban army and six Algerians taken from Bosnia, where they were suspected of plotting an attack on a U.S. embassy.

The administration insists they are "unlawful combatants" and potential war criminals who don't deserve the legal protection promised POWs under the Geneva Conventions, such as repatriation when hostilities end, or trial by the rules of courts-martial with a counsel of their choice.

Legally, they are in limbo. That's just fine with U.S. officials whose overriding priority is to interrogate the captives, seeking any information on al Qaeda, how it works, and plots of future attacks.

"I'm sure the lawyers will figure out at what point to bring charges against the detainees, Rumsfeld said Tuesday. "For the moment, I'm just pleased they're detained and off the streets and not killing people."

Interrogation of detainees in Afghanistan has already foiled plans for attacks against Americans in Yemen and Singapore, U.S. officials said this week.

The interrogation in Guantanamo did not begin until Wednesday and its "chief short-term goal is to develop information to help forestall terrorist acts, " said Steve Lucas, a spokesman for the Southern Command.

'BUYING TIME'

The Pentagon is in no hurry to charge the detainees or begin bringing them before military tribunals. General Counsel William Haynes and his staff have been working for more than two months on rules for those tribunals, a judicial system not used since World War II.

"They're buying time, because once you launch the tribunals, you start a timeline and that adds to the pressure to decide what to do with everybody, " said Scott Silliman, who was a senior attorney in the Air Force for 25 years.

One administration official, speaking on condition of anonymity, said there is "very little we know" about some of the Guantanamo detainees, and it will take time to develop a case against them.

Hutson said there's an added benefit to keeping prisoners in legal limbo without lawyers.

"After awhile, some may rat on others, " he said. "We don't know how many are true believers or how many are mercenaries, and some may start talking."

Some experts in international law caution that U.S. officials have to clarify the detainees' status eventually, especially if international pressure builds.

"We're setting an example for the world, and we simply do not have the authority to indefinitely detain individuals without some charge filed against them, " said David Scheffer, a former roving U.S. ambassador who helped set up war crimes tribunals.

"The dilemma is, we may not have enough evidence to prosecute some of them, but we don't want to liberate them either, " he added.

'COMPETENT TRIBUNAL'

Scheffer and other legal experts say the administration is brushing aside one provision of the Geneva Conventions, that military officers in a "competent tribunal" must sort out POWs from non-POWs.

Silliman, Scheffer and Human Rights Watch say that some Taliban fighters, as members of a defeated government force, could qualify for POW status.

The Pentagon has given no breakdown on the number of Taliban or al Qaeda detainees, or their nationalities. Some of the non-Afghan prisoners may eventually be returned home.

"My first choice would be for many of those to end up back in their countries, " Rumsfeld said.

"I think you'll see the three Brits, the Australian held there [David Hicks] and some others returned soon, to show U.S. flexibility, " said Silliman, who heads the Center on Law, Ethics and National Security at Duke University.

THE HARD CORE

But some of the "hardest of hard-core" terrorists aren't going anywhere, many predict.

And Guantanamo, isolated and secure, may be the future home for a prison, especially as the war on terrorism picks up suspects around the world.

"Long-term incarceration is a real possibility for Guantanamo, " said Lucas, of the Southern Command. "There is no place for these detainees to go."

Hutson said U.S. military prisons are not designed for dangerous terrorists, and keeping the detainees off U.S. soil gives the government a legal advantage.

"Guantanamo is just the perfect place - like putting them in Alcatraz, only better, " he said.

Read more Guantánamo Special Coverage stories from the Miami Herald

  • Web Extra | A prison camps primer

    The Pentagon has built a series of facilities at Guantánamo Bay since it inaugurated its offshore detention and interrogation center for terrorist suspects in January 2002 by airlifting captives to remote Cuba from Bagram, Afghanistan.

  •  
In this Feb. 2, 2002 file photo, a detainee brought by airlift from Afghanistan is carried on a stretcher before being interrogated by military officials at Camp X-Ray at the U.S. Navy Base in Guantanamo Bay, Cuba.

    GUANTANAMO

    ‘Flouting the rules of law and morality’

    GUANTANAMO BAY NAVY BASE, Cuba — Before this onetime coaling station for the U.S. Navy ships in the Caribbean was transformed into a site holding captives in the war on terror that U.S. officials had called the worst of the worst, most Americans were unaware of its existence.

  •  
These men are among those being force-fed at Guantanamo, according to their lawyers who say they got notice from the Justice Department. Top row from left: Yemeni Tariq Ba Awdah, 34, Syrian Jihad Diyab, 41, Yemeni Mohammed Al-Hamiri, in his 30s. Bottom row rom left: Kuwaiti Fayez Kandari, 35, Yemenis Yasin Ismael and Samir Muqbil, both in their 30s. Five of the photos come from the captives' military intelligence risk assessments obtained by McClatchy from Wikileaks. Kandari's photo was taken by the International Red Cross and released by his family.

    Who's still being held at Guantánamo

    Here is a comprehensive list of who is still held at the Guantánamo detention center in Cuba. McClatchy determined who was still there using both sources and court records as well as secret intelligence files obtained by WikiLeaks and passed to McClatchy.

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