Lawless in Guantanamo

By Richard Cohen

Tuesday, January 20, 2004; Page A19

If you are around my age, you grew up on combat movies in which some American POW told an enemy interrogator that he would supply only his name, rank and serial number. In the next breath, the American would cite the Geneva Convention in demanding fair treatment of prisoners. To someone like me in the movie theater, that sounded as American as apple pie. Now we're getting that pie in our face.

The reason, of course, is that the United States continues to hold hundreds of suspected Taliban and al Qaeda fighters at a special military prison at the Guantanamo Bay Naval Base in Cuba. I emphasize the word "suspected," because more than 80 of the original 660 detainees have been released -- a few to be jailed in their home countries, most just to go free.

It's not clear whether the Geneva Convention applies -- or can apply -- to detainees who are not conventional prisoners of war. After all, al Qaeda is a terrorist organization, not a state, and it is not likely that it will sign an armistice agreement ending hostilities. It's hard to believe that an al Qaeda fighter, freed from Guantanamo, would simply collect some doughnuts from the Red Cross and go home. The nature of war has changed.

But not, I would hope, the nature of the United States. Yet for more than two years now, the United States has been holding detainees without the benefit of counsel when, the law of averages says, some of them are bound to be innocent. One of the innocent might be David Hicks, a 28-year-old Australian who was captured in Afghanistan in December 2001. It was only last month that Hicks was visited by his lawyer -- the first time any Guantanamo detainee had gotten to see a lawyer.

It could be that Hicks, like some of the other detainees, was just in the wrong place at the wrong time. It also could be that he's a coldblooded killer, an Islamic militant and a zealous America-hater. Whatever the case, this is where lawyers prove useful -- and why defendants in the United States are guaranteed the right to counsel. Given enough time and enough pressure, even the innocent will confess to something -- anything just to end the isolation and deprivation.

From all accounts, Guantanamo is not a particularly harsh place. U.S. authorities don't go in for physical torture and all the Muslims are allowed to pray. But the isolation, the sheer hopelessness of the situation, has taken its toll. Vanity Fair magazine reported last month that 20 percent of the detainees are on anti-depressants and that by the end of the year, 32 of them had attempted suicide. In the end, jail is jail.

In any sort of sweep such as the kind the United States and its allies conducted in Afghanistan, the innocent are bound to be found among the guilty. That's a mathematical truth -- especially when Afghan warlords were given bounties for captured Taliban adherents. What did they care if they hauled in some innocent characters? It is these people, the innocent or the merely deluded, who are bound to be in Guantanamo -- and have been for at least two years now.

To an amazing degree, the word Guantanamo has become shorthand throughout the world for American arrogance and unilateralism. We insist that our POWs and others be treated by universally accepted rules -- the Geneva Convention, for instance. But when we capture some people, we say the old rules don't apply.

No one better articulated American arrogance than Defense Secretary Donald H. Rumsfeld, who, when asked in January 2002 why the Geneva Convention did not apply to the detainees, replied that he did not have "the slightest concern" about their treatment after what they had done. The Economist magazine, hardly an anti-American newsweekly, called Rumsfeld's remarks "unworthy of a nation which has cherished the rule of law from its very birth."

My own education in this matter came last October, when I went to visit the former president of Germany, Richard von Weizsaecker, at his home in Berlin. Weizsaecker -- both pro-American and adamant in insisting that Germany face its past -- answered all my questions but then brought up one himself: Guantanamo. "What is the rule of law and what is a human right?" he asked.

These are excellent questions -- directed not at me, but at the president and Congress. Both have been awfully slow to respond. To Weizsaecker, Guantanamo represents an America that has turned its back on its values. Anyone who watched the old war movies can only agree.

cohenr@washpost.com