LONDON: As the United States’ war on terrorism meanders on, legal questions surrounding alleged terrorists and their associates have taken on all the complexity of the war itself. Despite George Bush’s and US attorney general John Ashcroft’s binary world view of friend or foe, many post-September 11 detainees live in a shadow world, denied the full measure of US constitutional rights, and held in custody under a system that will neither release nor charge them.

At the top of the list of legal quandaries facing the attorney-general is Yasser Esam Hamdi, the second of the two “American Taliban”. Unlike the first, John Walker Lindh, who is set to stand trial in late August on charges including conspiracy to murder Americans abroad and conspiracy to assist terrorist groups, Hamdi is being held at a naval base in Virginia on legal grounds that the justice department has yet to explain.

The 22-year-old, captured in Afghanistan, was flown from detention in Guantanamo Bay to the US after he told interrogators he was born in Louisiana but had moved with his family to Saudi Arabia as a small child. As an American citizen, he could not be kept with other Al Qaeda and Taliban detainees in Cuba, and has the right not to be held without charge or to face a military tribunal. Yet the authorities, for lack of evidence, have been unable to charge him with any criminal offence.

The Washington Post noted that Hamdi’s case jeopardises the essential protection of the justice system: that citizens who can’t be charged must be released. “This is a dangerous step, the indefinite detention of American citizens with no charge and no public legal justification is unacceptable,” the paper warned.

Officials say he will probably be charged with some of the same crimes as Lindh. But unlike Lindh, who gave interviews to CNN and talked to interrogators, Hamdi has kept his mouth shut. “He’s being detained solely on the president’s authority as commander-in-chief,” says civil rights lawyer Ron Kuby. “It’s unconstitutional and unprecedented.”

Nor have Taliban and Al Qaeda prisoners at Guantanamo been helpful in describing his role within the organisation. Interrogators have found them hard to crack. According to recent reports, only 20 of the 299 detainees in Cuba are cooperating with their interrogators. Inexperienced linguists attempting to build prosecution cases have been outflanked by evasive detainees. Many of the fighters are offering similar cover stories - that they were in Afghanistan to find a wife, or were teaching the Koran in a remote village. “Some of the interrogators are very inexperienced, nervous,” says one linguist. “They twist their pen 2,000 times a minute. The detainee is in full control. He’s chained up, but he’s the one having fun.”

This lack of evidence is leading the Bush administration to consider establishing new legal provisions that would make it an offence to have been a senior member or officer of an Al Qaeda unit, and which would allow prisoners to be tried by military tribunals without specific evidence that they engaged in war crimes. One official said that under the new approach “it could be enough to show that they were part of a group and furthered its aims”.

This is similar to the measure enacted by the allies at Nuremberg which made membership of the SS a criminal offence. However, experts in the law of war say that no one was ever charged solely for membership of the SS, and most were prosecuted for war crimes on the evidence of witnesses or from extensive Nazi record-keeping, neither of which exist in Afghanistan. Moreover, charging someone with a “status crime” is legally questionable. Since the McCarthy era, the supreme court has rejected status crimes, at least for US citizens.

In another complication, the difficulty in building cases against the Guantanamo captives has thrown into doubt the efficacy of Bush’s order allowing them to be tried before military tribunals. The justice department could have tried Zacarias Moussaoui, the so-called “20th hijacker” of Sept 11, by tribunal but has chosen not to. Instead, he will be tried before a jury later this year on charges that he was part of the conspiracy to commit the hijackings. —Dawn/The Guardian News Service.