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Last Updated: Tuesday, 23 December, 2003, 15:50 GMT
Guantanamo Bay
Guantanamo Bay
Sometime in the next few days, it's claimed, some of the nine British citizens held captive at the American base at Guantanamo Bay in Cuba may be sent home.

The Americans call them 'enemy combatants' - a term which has no meaning in international law.

Dr Rowan Williams is expected to use his first Christmas Day sermon as Archbishop of Canterbury to say that holding people in this fashion, neither as prisoners of war nor subject to legal process, sends the 'wrong message' to the Moslem world.

But even for the Americans, what to do with the detainees is becoming a political headache. Peter Marshall reported.

PETER MARSHALL:
After two years locked away, some could be coming home, while others face a military trial.

PRESIDENT BUSH:
Justice is being done. These are illegal combatants picked up off a battlefield.

MARSHALL:
For Britain's detainees, for the British Government and for international law, questions over Guantanamo Bay are coming to a head.

TONY BLAIR:
We are in discussion about this. I have already said it will be resolved in one or two ways.

MARSHALL:
No news is bad news. At the Foreign Office, families of the Britons detained in Guantanamo Bay have just met the minister, and she has given them no news at all. They are crushed.

AZMAT BEGG
(Father of detainee):

To start with, it was quite nice. Then she said, "I have five minutes, ask as many questions as you want." When people start asking, she says, "Sorry, I can't answer." That's it.

MARSHALL:
Repeatedly in recent weeks, the Prime Minister has been giving a different message.

BLAIR:
It certainly has to be resolved soon. I can't say exactly when. There is one of two alternatives. Either there will be sufficient undertakings given about the form of trial they will have under a military commission. Alternatively, they will be returned to this country. We have been in discussion with the American administration about this issue for several months. I hope we can resolve it quickly. It will be resolved at some point or other. It's not going to be resolved today, but it will be resolved at some point soon.

MARSHALL:
Mr Bush added to that.

BUSH:
As to the issue of the British citizens, we are working with the British Government.

MARSHALL:
But after months of negotiations between Britain's Attorney-General and the Americans, it seems there is only frustration.

BEGG:
For the last six months, our Attorney-General has been negotiating, but what has he come with? What has he given to us? Nothing.

MARSHALL:
It may not help Mr Begg's son, but for some in Guantanamo Bay's Camp Delta, the end could be imminent. Sources suggest the US is ready to send a number of the nine Britons back home. Once here, even if there were anything to charge them with, any UK court would be expected to throw the case out, their legal due process having long ago been denied. It will mean men the Americans at first claimed were the worst of the worst, Taliban or terrorists, will be free to talk about what it has been like living in what a senior British judge has called "the monstrous lawlessness of Guantanamo Bay". The reason for action now rests with America's Supreme Court judges. An application to have Guantanamo Bay declared unconstitutional goes before them next year. It is in the names of two of the British detainees from the West Midlands and a number of Kuwaitis. The first legal moves start in January. But the US government could end the case at a stroke by releasing these nominees. The British lawyer who has put that case together is convinced something is afoot.

CLIVE STAFFORD SMITH
(Defence Attorney):

I think we can anticipate that this is going to happen over the Christmas break when everyone can hope that people are into mince pies and not interested in Guantanamo Bay.

MARSHALL:
That assumes there is an embarrassment for the Americans in releasing these people.

STAFFORD SMITH:
The Americans are not worried because they have Saddam Hussein on the front pages. They don't care about what happens with the release of these people in Britain. It is the British Government who are concerned about looking bad. The British Government can spin this as, "Look, we are bringing these boys home for Christmas. This is good news."

MARSHALL:
This is a group of Afghans released from Camp Delta in the summer. Fewer than 100 prisoners have been freed, none Westerners. They are always flown out in secrecy. It is only when they are back in their home countries that their release becomes known. The US military say it will be the same with the British. What are the tales of their treatment? One of the legal advisors to the Pentagon on Guantanamo Bay is Ruth Wedgwood.

PROFESSOR RUTH WEDGWOOD
(Yale Law School):

I don't have any information that there is a set of horror stories about to be unloaded. The US can be held to the standard of the commitment made by the President, which is part of human rights law as well, that you have to treat people humanely. If you talk to individuals, you may discover they have gotten better medical care than they ever dreamed of, they've gained weight, they have been allowed to observe their faith.

MARSHALL:
But this is not a holiday camp. There are currently 660 prisoners. None has any idea if they will ever be freed. In the 13 months up to August this year, there have been 32 suicide attempts. Since then, there has only been one further attempted suicide recorded. They have, however, introduced a separate category - manipulative self injurious behaviour - SIB. It is applied to individuals deemed to have merely feigned suicide attempts. There have been over 40 SIBs since the summer. This new classification troubles Britain's leading forensic psychiatrist.

DR JAMES MACKEITH
(Maudsley Royal Hospital):

It is impossible to authoritatively assess attempts at self harm in such a way as to justify confidence that a particular self-destructive act is designed to have a manipulative purpose, rather than a self-destructive purpose.

MARSHALL:
It is not a valuable clinical definition, as far as you are concerned.

MACKEITH:
It is a new one on me.

MARSHALL:
Even if some of the British detainees are released, at least two - Moazzem Begg from Birmingham and from Croydon, Feroz Abbasi - are still due to go before Guantanamo's impending military courts, having apparently admitted plotting terrorism. Their families are concerned for their mental state. Begg is said to have made what his defenders call "a ludicrous confession". Their lawyers, barred from Camp Delta, rely on leaks for information.

STAFFORD SMITH:
There's a group of people in America, people of conscience within the military, close to what goes on in Guantanamo Bay, who really don't like what is happening. They view that as antithetical to everything that America stands for. Who are they going to call? They call us, the people in the civilian side who are trying to represent these guys.

MARSHALL:
The rules for the tribunals, with their restrictions on lawyers and access to evidence, have dismayed many, from law lords to international jurists to America's own Bar Association.

EUGENE FIDELL
(National Institute of Military Justice):

Very few US lawyers have offered to put their names on the list of potential civilian defence counsel to serve at the military commissions. I believe only two. We have a lot of lawyers in our country, I believe only two have been approved to serve as civilian defence counsel.

MARSHALL:
While Britain is still negotiating, the Australians have agreed to the trial of their citizen, David Hicks, on the understanding he won't face the death penalty and probably serves his sentence in Australia. This is being seen as special justice for America's allies.

FIDELL:
The fact, for example, that negotiations between the United States and the UK and Australia seem to have changed the terms of reference for the military commissions do not particularly suggest a settled system of administration of justice. That particular aspect is very disturbing to many observers because it suggests that distinctions are being drawn based on the nationality of the defendants who are suspects.

MARSHALL:
Britain's experience with Irish terrorist cases, like that of the wrongly convicted Judith Ward, also sounds a warning about the unreliability of confessions in custody. A key advisor for reforms in 1995's Criminal Justice Act, says Guantanamo's Camp Delta is almost a model environment for inducing false confessions.

MACKEITH:
It would be astonishing if they didn't confess, whether they have done anything or not, after a long enough period under extreme circumstances. Normal, resilient, admirable, intelligent, competent people can reach that state. We know that from the lessons of history. They can also be persuaded to incriminate somebody else. That kind of thing might be generated at Guantanamo Bay.

MARSHALL:
If the confessions are unreliable, what is the value of the inside intelligence on terrorist operations gleaned from Guantanamo? Is it helping thwart future terrorist attacks? It seems, here again, there are serious doubts. They come from the intelligence professionals, the CIA.

MELVYN GOODMAN
(Ex Senior Intelligence Analyst, CIA):

I've talked to military people and to some intelligence people. They received information early on that was in the tactical area, in terms of where these detainees were, what kind of training they had, what kind of training this would be used for. But in terms of actionable intelligence, I've never talked to anyone who claims they were getting trenchant information out of this group of detainees. You get the impression that you have 660 people there and that they were caught in a round-up. It's possible most of the people there probably don't belong there.

MARSHALL:
The acquittal in Hamburg of a man accused of helping the September 11th hijackers has exposed Guantanamo's great irony. His prosecution was undermined by intelligence acquired at Camp Delta and then leaked to the defence. It means that what intelligence the US is getting can rebound on them.

WEDGWOOD:
It is a very difficult situation. You really need human intelligence to prevent further attacks. If there is a better way of getting it, I'm all for it. But Al-Qaeda has learned not to use telephones, not to use the internet. They use couriers. The only way you will know what a compartmentalised network is planning to do is to talk to them.

MARSHALL:
Guantanamo Bay's Camp Delta is borne of America's dilemma, how to handle alleged prisoners of war while refusing them POW status. The longer these prisoners are detained the more acute the dilemma.

This transcript was produced from the teletext subtitles that are generated live for Newsnight. It has been checked against the programme as broadcast, however Newsnight can accept no responsibility for any factual inaccuracies. We will be happy to correct serious errors.



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