Legality and America's prisoners

What on earth is going on in America's war? After more than 100 days, with the Taliban government in Afghanistan overthrown, the US bombing continues as relentlessly, and perhaps more heavily, than ever. Many Afghan villagers, according to reports, say that areas empty of al-Qaeda fighters are still being bombed and that the only victims are civilians. But so sparse is the information, and so unreliable the witnesses in a country of impenetrable politics, that we can have no idea how many innocent people are being killed or injured. All we can say is that there must be some and that, if terrorism still poses a threat, it is hard to see how it can do so from the ravaged terrain of Afghanistan. But for those who question America's war - and the present bombing makes crystal clear the distinction between a real war campaign and the police action that many critics advocated - there has always been a catch-22. If there are no more terrorist attacks, but only claims of plots being foiled by vigilant intelligence and security, this will be taken as vindication of American actions. If, on the other hand, more attacks were to take place, they would be presented as proof of how serious the threat truly is, and how right America is to respond ruthlessly.

We are on somewhat firmer ground - in the sense that more facts are available - when we come to the American treatment of al-Qaeda and Taliban prisoners. Here is clear support for the proposition that the understandable lust for revenge for the 11 September attacks has overthrown all moral standards. We have become accustomed to America's disregard for international treaties, such as the Kyoto Protocol on global warming. Now it seems that the US is prepared to ditch the Geneva Conventions.

Hundreds of prisoners have been flown to the US naval base at Guantanamo Bay in Cuba - chained, hooded and sometimes sedated. Even if that can be justified on security grounds, it is hard to see what, beyond humiliation, justifies shaving off their beards or denying them insect repellent as they sit in outdoor cages in Cuba, among possibly malarial mosquitoes. There can be no evidence linking many of these men to the 11 September or any other attacks; they may have no more idea of the evil they serve than did the average German private in the Second World War.

Under the Geneva Conventions, this treatment of prisoners of war would be of dubious legality and might well be classified as torture. Moreover, the prisoners would be entitled to a court martial with more legal protection than they will get under the military tribunals (which have the power to impose the death penalty) that are now being planned at Guantanamo.

Donald Rumsfeld, the US Secretary of State for Defence, argues that these are "unlawful combatants", not prisoners of war. He is wrong on two counts. First, it is not up to Mr Rumsfeld to define an unlawful combatant; the Geneva Conventions require the matter to be decided by a court or a competent tribunal. Second, it is America that declared itself at war, and it is America that insisted no sensible distinction could be drawn between the Taliban government of Afghanistan and Osama Bin Laden's terrorist network. The logic of all that is that anybody fighting against the Americans or the insurgent Northern Alliance in Afghanistan was fighting for the government and, therefore, according to the Geneva Conventions, should be treated as a PoW.

To Americans and their supporters, these points may seem to be just hair-splitting, liberal pedantry. In President Bush's airily dismissive words, "whatever the procedures are for military tribunals, our system will be a lot more fair than the system of Bin Laden and the Taliban". But if everything is now to be judged by Taliban standards, we are all lost. Legal questions nearly always hang on the interpretation of words. What is so alarming is the American indifference to legality, since legality is a defining characteristic of a liberal democracy and of the way of life that the US is supposedly fighting to protect. It cannot be said too often that the true test of our commitment to legality is not our treatment of well-spoken men in grey suits - such as the executives of Enron, perhaps - but our treatment of the most violent and odious people.

America's continued bombing and its treatment of its prisoners is further evidence that, since 11 September, it has dropped all pretensions to be a defender of human rights and a source of moral authority, and decided to rely on brute force to impose its will on the world. Its friends - such as the Financial Times and the Daily Mail's Stephen Glover - are more alarmed than its critics, many of whom welcome America's appearance in what they have always argued are its true colours. But, as usual, British government criticism of the US is muted at best. Tony Blair and Jack Straw, the Foreign Secretary, should speak out now. To adapt a phrase, those who are not with us on this subject must be against us.

No laughing matter

The red menace, like the poor, is always with us. We must all be grateful to Michael Gove of the Times for taking a fresh look under the bed. In two articles, he reports that Trotskyist and communist organisations, all "dedicated to eventual revolution . . . and hostile to private property and profit", have sunk old sectarian disputes to become the Socialist Alliance. Inevitably, he finds they are behind the recent rail strikes and are set to tighten their grip on "a major British institution" (he seems to mean South West Trains). Worse, they have "infiltrated" the legal profession. But most damning is their "skilful manipulation of the media". Socialist Alliance stalwarts such as Mark Steel, Jeremy Hardy and Linda Smith, disguised as comedians, get themselves on Radio 4, notably The News Quiz, where they "make jokes about the Conservatives and the government". This is indeed a wondrous thing. For years, the left was accused of being dreary and joyless. Now Mr Gove denounces it for an excess of humour.