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The Daily Telegraph editorial, Aug. 13, 2003

The Guantanamo solution


President Bush and Donald Rumsfeld, the US Defence Secretary, have been unfairly maligned in this country for their decision to put terrorist suspects on trial in Guantanamo Bay. Paradoxically, their difficulties stem not so much from their alleged illiberalism as from a desire to maintain some measure of due process in a time of a new and horrific kind of asymmetric warfare.

The Bush Administration has been wrestling with the problem - not dissimilar to that faced by Whitehall during the early years of the Troubles in Northern Ireland - about whether to treat suspects as prisoners of war or common criminals. His dilemma was understandable. Had he called them PoWs, he would have been obliged by the Geneva Conventions to release them at the end of hostilities. But when can a war against global terrorism be said to be at an end? With the fall of the Taliban? With the deposition of Saddam? Mr Bush had every reason to believe - he still has - that, if he were to release the prisoners in Camp Delta, a great many of them would return immediately to the war against the West, and plot a new atrocity like the destruction of the Twin Towers. That was something that no responsible leader could countenance.

But if he could not call his captives PoWs, nor could he treat them quite like common criminals. Under the US Constitution, criminal suspects have to be put on trial, and judged according to the rules of evidence. Any competent defence lawyer would make short work of testimony gathered from secret sources or from prisoners held for many months, in harsh conditions, without access to lawyers.

Mr Bush's liberal instincts told him that it was wrong to hold possibly innocent men for long periods without trial. But, equally, he knew that no ordinarily conducted criminal trial could be expected to result in a conviction, no matter how guilty the defendant might be.

So it was that the President hit upon the idea of treating them neither as PoWs nor as criminals, but as something in between. He decided to put them on trial by military tribunal, and instructed his Defence Secretary, Donald Rumsfeld, to draft special rules of evidence and procedure that would make convictions more likely than in a civilian court. In so doing, he landed himself in the worst of all possible worlds.

Mr Rumsfeld's rules, drafted on March 21, 2002, are not nearly as illiberal as his critics maintain. They include many safeguards of the rights of the defendant. But the fact is that they fall well short of the standards of justice required by civilian courts in both Britain and America. By being as liberal and fair-minded as he dared, Mr Bush succeeded only in making himself look more authoritarian than he appeared before he suggested trials of any sort. The British Government, which has never wanted responsibility for British prisoners held in Camp Delta, has been forced into the hypocritical position of defending the rights of its citizens against Mr Bush.

Only a fool would dispute that Mr Bush was right to hold and interrogate prisoners while they might still have useful information about planned terrorist atrocities. But the longer their detention goes on, in this limbo between PoW and criminal status, the less justified it seems to many in this country. The answer, surely, lies not in subjecting the prisoners to military tribunals, but in regularising their status under the law. During the Second World War, many Germans and Italians were humanely interned in Britain, under a form of administrative detention that made no comment on their guilt or innocence of Nazi sympathies. The prisoners in Guantanamo Bay should be treated like that.

THE DAILY TELEGRAPH, LondonWednesday, Aug. 13, 2003