Europe Reluctant to Green Light U.S. Detainee Policy

The Bush administration is trying to convince European allies that its current policy for dealing with suspects in the war on terror, particularly those in Guantanamo Bay, is sound, legal and fair. But Europe is reluctant to go along — despite some agreement that it would be good to develop a new international framework for handling terrorism suspects.

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Now, for more than a year the Bush administration has been running something of a charm offensive in Europe. It's an effort to convince the allies that despite secret prisons, renditions, allegations of torture, and years of detaining terror suspects and not charging them, America's way of fighting terrorism is legally sound.

From Berlin, NPR's Emily Harris reports.

EMILY HARRIS: John Bellinger is the U.S. State Department legal advisor, and it's his task to charm the Europeans into at least understanding the Bush administration's view on terrorism.

(Soundbite of applause)

(Soundbite of speech by John Bellinger)

Mr. JOHN BELLINGER (State Department): Well, thank you all. It's a pleasure to be here…

HARRIS: His essential message at a speech last month in Berlin was this: al-Qaida is a unique enemy. Its fighters don't meet the Geneva Conventions' criteria to gain treatment as prisoners of war, to be released without trial at the end of a conflict. Nor can they be prosecuted in regular U.S. criminal courts, due to logistical and jurisdictional limits. Bellinger's question to Europeans who say these are the only legal options, is - really?

Mr. BELLINGER: If a group outside of one of your countries planned an attack from outside and killed 3,000 of your nationals, what would your nation's response be to that? While 3,000 of our people lie dead in the streets, all we can do is launch a massive investigation that maybe five, seven years from then could result in extradition requests somewhere in the world? What I'm trying to say is, these are very difficult legal questions.

HARRIS: Europeans fully back the U.S. view that it had a legal right to invade Afghanistan, because the Taliban government supported the group that attacked the U.S. But University of Munich law professor Georg Nolte says Europeans are wary of the U.S. assertion it is still at war with al-Qaida, suggesting it can still do things such as kidnap terrorism suspects from European countries.

Professor GEORG NOLTE (University of Munich): States are not assured by the mere statement that the United States will probably not do something. They want to know whether the United States considers that there are actual legal limits to what the United States claims it can do.

HARRIS: Then there is the question of what happens once the U.S. does pick up a terrorist suspect. Bellinger emphasizes new U.S. legislation establishing military commissions that bar secret evidence and allow for a review of commission verdicts all the way up to the Supreme Court.

Professor of international law at University of Frankfurt-Oder, Wolff Heintschel von Heinegg, says most people he knows see having a system to try detainees as a significant step forward.

Professor WOLFF HEINTSCHEL VON HEINEGG: (University of Frankfurt-Oder): There are some differences in opinion still, however, with regard to the procedures laid down in that act. Not many people are very satisfied with that, because they are still missing effective remedies for the detainees. There are others who even doubt the legality of military commissions altogether. I do not share those doubts.

HARRIS: John Bellinger points to a report on Guantanamo Bay issued this year by a group of legislatures from members of the 55-nation Organization for Security and Cooperation in Europe, or OSCE. Anne-Marie Lizin, the president of the Belgian Senate and the report author, wrote that there is, incontestably, some legal haziness to the question of what laws govern treatment of suspected al-Qaida members.

Ms. ANNE-MARIE LIZIN (President, Belgian Senate; Author, OSCE Report): We are not agreeing to call it a war against terror, that's clear. Because I think no European is in this mind. But we have to fight this sort of criminal actions.

HARRIS: On Guantanamo, specifically, she says:

Ms. LIZIN: It's not the worst jail in (unintelligible), definitely not, eh? So that's also part of the reality.

HARRIS: Still, Europeans have doubts that the U.S. has ended mistreatment or torture of prisoners, and are unhappy that the Bush administration says the now-empty secret CIA prisons could be used again.

Adam Roberts, editor of the book “Documents on Laws of War”, says Bellinger's claim that the fight against al Qaida has no previous comparison is extremely dangerous.

Mr. ADAM ROBERTS (Editor, “Documents on Laws of War”): Because if one says that the war on terror is completely unique - because of its scale, because of its international character, because of the risk of terrorist acquiring nuclear weapons; all these reasons why one might think it completely unique - the risk is that one will then ignore the very considerable lessons that can be drawn from history about how terrorism is best opposed.

HARRIS: One area of agreement: the practical effects of these different views of the law. U.S. and European officials say that disagreements have and could continue to make it difficult to cooperate in some aspects of fighting terrorism.

Emily Harris, NPR News, Berlin.

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