Fate of 'detainees' hangs on US wording

The future of the Taliban and Al Qaeda fighters being held in Cuba is as unclear as the view through the darkened goggles they were made to wear when they stepped off the plane at the US military base in Guantanamo Bay.

Already, Washington's refusal to grant them official prisoner-of- war status has sparked protests from human rights groups, and a disagreement with the International Committee of the Red Cross (ICRC), which oversees the Geneva Conventions. But for the US, the POW designation has little to do with steel manacles or open-air cells. Rather, it appears to be sidestepping the conventions in order to craft an unusual legal strategy that will enable it to try Al Qaeda suspects in special US military tribunals.

Fifty men are currently being held in Guantanamo, in six-by-eight foot concrete-floored cells, with wooden roofs and chainlink fence "walls" that leave them open to the elements. US military engineers are preparing to build up to 2,000 such cells, if necessary; more than 400 prisoners are still being held in Afghanistan.

Defense Secretary Donald Rumsfeld told re- porters that "we do plan to, for the most part, treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent that they are appropriate."

But he was careful to refer to the prisoners as "unlawful combatants" or "battlefield detainees," not prisoners of war. That description severely reduces the rights that the men would have as POWs under the Geneva Conventions, and prompted a rebuttal from the International Red Cross.

"We say they should be presumed to be POWs, and it is not up to the ICRC or to the US military authorities to decide, but up to the courts," said Michael Kleiner, an ICRC spokesman.

He recalled that a US court determined that former Panamanian strongman Manuel Noriega was a POW, despite the government's refusal to classify him as such following his capture. The issue goes to the heart of the US administration's hopes of prosecuting Al Qaeda leaders suspected of involvement in terrorist attacks against US targets. Under the third Geneva Convention, prisoners of war may only be tried in the same courts and according to the same rules, as soldiers of the country that is holding the prisoners. That means the Al Qaeda suspects could not be tried in the special military tribunals whose rules are currently being worked out, but only by regular US military courts using the Uniform Code of Military Justice. That would give the prisoners the right to a three-tier appeal system reaching possibly to the Supreme Court.

"This is one reason why the Americans are nervous about applying the POW convention in all its glory," says Adam Roberts, an expert on international law at Oxford University in England, and editor of "Documents on the Laws of War."

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