Amid criticism from European governments and international human rights organizations, the U.S. announced Wednesday that it had suspended further transfers of detainees out of Afghanistan, pending new construction at the Cuban facility. Officially, the U.S. line was that the suspension had nothing to do with the criticisms and was based solely on the fact that the current holding cells were full to capacity. But Camp X-Ray's commander, Brigadier General Michael Lehnert, indicated that changes being made at the camp would incorporate some of the recommendations made by the International Committee of the Red Cross, which sent a delegation to inspect the camp earlier this week.
Even so, European alarm persists: Britain's foreign secretary Jack Straw said Thursday that his government would press for the British subjects held at Guantanamo to be returned to the U.K. to stand trial there, rather than before a U.S. military tribunal. An American diplomat had further inflamed European tempers by telling the British media that British subjects held at Guantanamo would face the death penalty if tried by U.S. military courts capital punishment is forbidden in the European Union, and most EU countries won't extradite prisoners who may face the death penalty elsewhere.
POW or detainee?
Three sets of issues define the controversy. The first is simply their treatment: Humanitarian concerns over keeping the detainees in open-sided cages, for example, were inflamed by the U.S. inexplicably releasing photographs of newly-arrived detainees bound, gagged, blindfolded and on their knees, as part of a PR effort designed to show their humane treatment. But it was a relatively simple matter for the U.S. to defuse those concerns by allowing Red Cross inspections and accepting some recommendations for improving conditions at the base. British diplomats who visited the camp on Monday reported that British detainees were being treated well.
The second and third issues are closely linked whether the captives enjoy Prisoner of War status, and how they are to be tried. The U.S. has not indicated a preference on this front, although it may be tending towards using military tribunals the option least favored by the Europeans, who would prefer to see the captives tried in either the U.S. or their home country's court systems, or in some form of international criminal court.
But the immediate purpose for holding the prisoners is not to prepare charges against them; it's to interrogate them in order to more effectively wage the fight against al Qaeda. According them POW status would necessarily impede that process, if not render it impossible. After all, the Geneva Convention obliges a POW to reveal only his name, rank and number, and protects him from any form of duress.
Even though European security and intelligence agencies share Washington's concern to extract whatever information the prisoners may have in order to prevent future terrorist strikes, the European Union has looked skeptically on Washington's claim that the captives are not POWs, but "unlawful combatants." No such category exists in international law, say the Europeans, backed up by many leading international jurists who insist the captives are entitled either to the rights of POWs, or else to those of common criminals.
The dispute doesn't detract from the fact that the Europeans have enthusiastically and effectively taken up the war against al Qaeda. They have uprooted its European networks, shared intelligence and offered thousands of troops to the U.S. war effort in Afghanistan. But the controversy over Guantanamo has reminded them of the reasons they regarded the Bush administration with suspicion before September 11. Tempers were not cooled by Defense Secretary Rumsfeld's initial reaction last week to concerns over the fate of the detainees: "I do not feel the slightest concern at their treatment; they are being treated vastly better than they treated anybody else." In European eyes, Rumsfeld's response confirmed fears that the U.S. was using its military might to set its own rules, rather than abiding by accepted international legal norms.
And that brought back European concerns over the perceived unilateralism of President Bush. The administration's reactions to everything from the Comprehensive Test Ban treaty and the Anti-Ballistic Missile treaty to the proposed International Criminal Court, the convention against landmines and the Kyoto Accords have painted Bush, in European eyes, as the bully on the block rather than a global citizen in good standing. And while his record on the death penalty may be in keeping with the American mainstream, it's beyond the pale in Europe.
It depends on what you mean by "we"
But the schism over Guantanamo between the U.S. and its European allies isn't simply about continental perceptions of Bush. The Europeans who signed up for the anti-terror war feel excluded from any decision making over its basic principles. In other words, beyond "with us or against us" is the question of what exactly "we" stands for. The British, for example, have grown exasperated trying to get Washington to take more seriously Arab concerns over the deteriorating prospects for Israeli-Palestinian peace. The Europeans were, for the most part, content to let the U.S. call the shots in Afghanistan although they did feel a little slighted by the fact that the Americans had little use for the men and machines they offered to send. But they're unlikely to simply accept Washington applying its own reading of international law in the aftermath of battle. There's no question that the detainees on Guantanamo represent a challenging category of combatant indeed, of warfare not envisaged by the framers of the Geneva Convention. Indeed, the Europeans may have been somewhat placated by being drawn into a discussion at an earlier stage over how to deal with al Qaeda captives.
Instead, the atmospherics of the anti-terror coalition have been soured. The Guantanamo controversy won't have any negative effect on European intelligence cooperation or other concrete aspects of the war on terror. But the administration's early handling of the issue may have sealed European public opinion of President Bush's war effort in ways not helpful to the U.S.
With reporting by J.F.O. McAllister/London