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by Curtis J. Smothers

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The detainees at Guantanamo Bay, Cuba, are a Who's Who of international terrorism. They ended up there after a rigorous screening process that began with their capture either in the wilds of Afghanistan or having been picked up other governments. A few have even been captured in the United States.

The inmates, according to a U.S. State Department fact sheet include rank-and-file jihadists who took up arms against the U.S., "as well as senior al Qaida operatives and leaders, and Taliban leaders." These detainees have proved to be a gold mine of intelligence information about al Qaida, its affiliates, and other extremely dangerous terrorist groups. According to the fact sheet, "The combined effect of this information is critical in the ongoing efforts to disrupt the attack plans of al Qaida and its affiliates throughout the world."

U.S. Government spokesmen and subsequent inspections by the Red Cross, news media, and international human rights groups have verified that the prisoners at Guantanamo are treated well. They receive three meals per day that meet their cultural and religious dietary requirements. They are adequately sheltered and clothed, are allowed to worship and are provided copies of the Koran and prayer beads. They can receive and send mail and are given reading materials. They also receive excellent medical care. These privileges, the U.S. Government claims, are comparable to what regular prisoners of war (POWs) could expect.

The fact that the United States does not recognized Taliban fighters and their Al Qaida affiliates as bona fide POWs protected by the protocols of the Geneva Convention is the crux of the dispute between human rights groups, such as Amnesty International, and U.S. officials. As POWs these detainees would be granted certain rights that would include immunity from prosecution for hostile acts against U.S. soldiers and would preclude other coercive interrogation techniques employed by U.S. intelligence operatives. They could also look forward to confinement in relative safety in U.S. custody without the threat of being turned over to governments where their treatment would be far worse.

The United States has insisted since 2002 that these inmates cannot be considered regular soldiers. They fight in disorganized bands, have no recognizable military insignia; they hide in mosques and among the populace, and they do not conform to the normal practices of war. The latter reasons, the U.S. purports, make these people ineligible for protection by the Geneva Convention, which was devised, among other things, to protect the civilian population from being targeted when conventional forces go after irregular combatants. Moreover, the U.S. cites instances of gross cruelty on the part of these fighters whenever American troops have the misfortune of becoming captives of these groups.

Human rights groups and spokesmen for the American Society of International Law have a different view of the matter. Their argument is this: Taliban fighters and their Al Qaida affiliates are an unconventional fighting force, who were fighting an invading army on behalf of the deposed Taliban government of Afghanistan. The U.S. has a better case, they agree, for not granting POW status to independently operating Al Qaida terrorists. However, they argue, those independent terrorists should be treated under the Third Protocol of the Geneva Convention as hostile civilians to be held accountable for criminal acts and not be held as unprivileged combatant detainees.

U.S. spokesmen counter these objections by pointing out that the Geneva Convention Protocol was never intended to govern international terrorism. Besides, they point out, stateless groups like Al Qaida could never sign such an agreement anyway. U.S. spokesmen, again, point to the "actionable results" from questioning the Guantanamo detainees that have provided an invaluable "connecting the dots" in America's war on international terrorists.

In response to complaints about violating detainees' rights, U.S. spokesmen point out that even if they were given POW status, they would not have the right to lawyers, access to the courts to challenge their detention, or the right to release prior to the end of hostilities. Nothing in the Geneva Convention gives POWs such rights, and in past wars POWs have not been given such rights.

What is next? There seems to be a growing consensus in the U.S. Congress that the war on terror will probably outlast the advantage of housing over 600 hostile Muslims who have become a growing embarrassment to the image of the U.S. around the world. Our government needs to find a way to process, prosecute, repatriate, or continue the legal detention of the most dangerous and intractable enemy terrorists. In the short term, the Guantanamo Bay detention facility will remain both the center of a controversy on human rights as well as a singularly valuable resource on the war on terrorism.

Sources:
"Guantanamo Detainees," http://usinfo.state.gov/xarchives/display.html?p=was hfile-
english&y=2004&m=March&x=20040316162613maduobba0.2 819483&t=livefeeds/wf-latest.html), accessed August 5, 2007
"Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law," by Robert K. Goldman and Brian D. Tittemore, http://www.asil.org/taskforce/goldman.pdf, accessed August 5, 2007

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