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Washington Broods Over X-Ray Prognosis

28 February 2002

As the prisoners while away the weeks in their flyblown cages at Camp X-ray, Washington's government lawyers are in a state of confusion and embarrassment, having so far failed to come up with a coherent plan for the captives' future.

There are signs that the administration now regrets inventing the whole concept of military tribunals, the only war-related issue which has come close to giving President Bush political problems since September 11.

The Pentagon promised nearly two months ago that it would come up with a formal statement showing the legal basis under which the tribunals would operate. The statement has not been forthcoming.

If it ever comes, it seems improbable that any of the 194 prisoners now in Guantanamo Bay would face the tribunals: none of them seems likely to be characterized as a war criminal, the criterion suggested by the Department of Justice.

The tribunals were hastily instituted soon after the start of the war to cover the possibility of capturing Osama bin Laden or another major figure. The administration was desperate to set up a secret system to guard against the possibility of a primetime TV onslaught by grandstanding defense lawyers.

But with the biggest fish still unaccounted for, the US now has to deal with the fact that it has probably only caught tiddlers, or at least people who cannot be proved to be other than tiddlers. The signs are that interrogators have struggled to show that any of the men captured truly fit their original billing as "the worst of the worst".

The American public is registering no concern whatever about the conditions at Guantanamo Bay; the outcry elsewhere has hardly registered. But if tribunals were convened, the situation could change, with potential opposition from both right and left.

Donald Rumsfeld, the defense secretary, says he would like the detainees to be sent back to their own countries, if he can be sure they would not be released. Since most appear to be Saudis, this would depend on the highly problematic notion of a deal with the Saudi government.

Before that can be contemplated, their fate will depend on the outcome of a power struggle in the administration, in which the crucial figure is Alberto Gonzales, the chief counsel to President Bush and among the frontrunners to be the US's next chief justice.

Mr Gonzales, a close associate of Mr Bush from Texas days, is understood to be the man whose advice encouraged the president to say the Geneva Convention did not apply to the detainees. Opposition from the departments of state, defense and justice then forced the White House into the incoherent compromise announced earlier this month: supposedly the Convention applies but the men are not prisoners of war, a distinction outsiders regard as legal nonsense.

There are also indications that Mr Rumsfeld's department is tiring of its duties at Guantanamo.

"They don't want to be running the world's gulag," said Elena Massimino of the Lawyers' Committee for Human Rights. "They want to fight wars. That's what they're there for."

Matthew Engel, in Washington
Published in the Guardian © Guardian Newspapers Limited 2002

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