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."
US Attorney General John Ashcroft said Tuesday that the administration would seek criminal charges in a civil court against the American Taliban prisoner John Walker Lindh, rather than send him to a military tribunal. Mr. Ashcroft said he would not face the death penalty. (Related story, page 2.)
US officials say that the foreign prisoners captured in Afghanistan are not covered by the third Geneva Convention because they were "bands of people that I don't think would meet the criteria of organized military activity," as Pentagon spokeswoman Susan Hanson put it.
The Pentagon has also stressed that the prisoners are being well treated, given three "culturally appropriate meals" a day, and the opportunity to shower, exercise, and receive medical attention.
Human rights organizations, however, have raised questions about the prisoners' housing conditions, which according to the Geneva Convention should be the same standard of those enjoyed by their guards.
"If US POWs were ever kept under these conditions, the United States would complain, and rightly so," says James Ross, a senior legal adviser with the New York-based Human Rights Watch. The ICRC is to send a team to Guantanamo by the end of this week, US officials have said, to inspect Camp X-Ray.
Meanwhile Pentagon legal experts are currently working on a procedure to decide on the prisoners' fate. US policy towards them "is a new construct of the new military situation we find ourselves in," dealing with irregular forces from a variety of countries who are suspected of terrorism rather than traditional war crimes, Ms. Hanson says.
Little is clear, however. "There are a bunch of lawyers who are looking at all these treaties and conventions and everything, trying to figure out what is appropriate," Mr. Rumsfeld told reporters last week.
"They are a bit of a tangle, these people," says Prof. Roberts. Under the Geneva Conventions, POWs must be returned home at the end of the war. But Saudi or Egyptian detainees, for example, could face mistreatment at the hands of their governments, which means Washington would be forbidden by international law to hand them over.
It is also unclear what would constitute an end to the war on terrorism. And if some individuals were found to be a continued danger, the US authorities would be reluctant to release them.
"I don't think anything quite like this was envisioned when the Geneva Conventions were drawn up," says Tom Farer, dean of Denver University's Graduate School of International Studies and a former special assistant to the Defense Department's special counsel.
"What is worrying," adds Prof. Roberts, "is that by calling these people 'battlefield detainees', the United States seems to be creating a legal limbo where it is not clear what the legal standards are."