October 18, 2003 | Broadcast

CNN Live Saturday with Andrea Koppel

Images like these generated debate last year about the conditions in which detainees are being held. Now, the International Red Cross says continued detention is simply unacceptable.

Our guests are going to discuss the issue. Andrew Apostolou is with the Foundation for the Defense of Democracies. He is in Washington. And in New York, Sohail Mohammed, an immigration attorney who represented some of the Muslims detained after 9/11.

Mr. Mohammed, I’d like to begin with you. There are apparently 1,200 detainees not just in Guantanamo but elsewhere that the U.S. has in its custody that are being held — again, this is my understanding — without any charges having been made. How can this be?

SOHAIL MOHAMMED, IMMIGRATION ATTORNEY: Well, Andrea, that’s an interesting question, because since 9/11, the government has said 1,200. The activists have measured up to 2,000. But even if we take the 1,200, the detainees that were held, not a single one to this date have been charged with terrorism.

They have charged with some minor criminal offenses, but not a single one. The only person that is in the U.S. custody today is Zacarias Moussaoui. Even that case is under scrutiny now.

So you can see this war on terror, where we’re taking people and holding them in a legal limbo, has not — I mean basically generated the kind of information that our government claims that they want to have. It’s basically counterproductive, and the problem that we have is, when we put people in a limbo like this, we’re basically running the risk of, when our Americans overseas or anyplace are held, what are we going to invoke?

I mean, this administration is trying to use the style of some sort of a buffet. You know you can pick and choose the laws that you want to use. That’s not the way.

KOPPEL: Andrew Apostolou, the commander of the task force that runs the detention center in Guantanamo, Cuba said, “There is intelligence of enormous value that’s received every day from questioning these individuals.” Do you care to comment?

ANDREW APOSTOLOU, FOUNDATION FOR THE DEFENSE OF DEMOCRACIES: Well, first of all, thank you very much for inviting me on the program. Let’s be clear that there are two sorts of detentions happening here.

The first is people who have been detained in the United States. The peak number was apparently 1,200, but my understanding from simply reading the newspapers is that many of those people are now not in detention. In fact, I was on an airplane traveling back to London in January, 2002 and some of those people were on the airplane. They were being deported back to Britain. So it’s false the claim that there are 1,200 people in the U.S. still being detained.

Secondly, with regard to Guantanamo Bay, these people were detained in the theater of operations of combat in and around Afghanistan. Believe me, they weren’t in Afghanistan for the skiing. And with regard to interrogating them, the Geneva Convention does allow you to do that.

That’s very clear. Even human rights supporters said that.

KOPPEL: Well, that may be true. And certainly the Bush…

APOSTOLOU: No, it’s not maybe true. It is true.

KOPPEL: Well, what I’m going to say is that the Bush administration has labeled them enemy combatants for that very reason, because many of the Taliban fighters, let alone the al Qaeda, were not wearing uniforms and therefore could not be easily identified as members of a military. But nevertheless, is it not a valid criticism to say you’ve had these guys in custody now, in some instances for close to two years. You haven’t charged them with my terror-related charges.

When does push come to shove?

APOSTOLOU: Well, there are two issues there. First of all, they are what the U.S. government calls unlawful or illegal combatants, and that is, as you’ve said, because they violated the most basic rules of war. Let’s not forget the Geneva Convention isn’t just about prisoner rights. It’s about distinguishing combatants from civilians.

These people deliberately blurred all the distinctions. And now they have the cheek to try to arrogate to themselves the protections of combatants.

MOHAMMED: Andrea…

APOSTOLOU: Excuse me. Will you allow me to finish my point? Thank you very much indeed.

They have blurred the distinctions. The U.S. government has given them considerable Geneva Convention rights, and rightly so to. But it would be to damage the integrity of the convention if you were to give them full POW rights.

And remember, if you have full POW rights — and whether you’re a legal or a illegal combatant, that doesn’t matter — you can be detained until the end of hostilities. Hostilities are still ongoing. You will recall that American soldiers are being killed in Afghanistan by the Taliban very recently.

KOPPEL: Let’s give an opportunity to Mr. Mohammed. You’ll have the last word, sir. Do you care to comment?

MOHAMMED: Yes, Andrea. You know, the Geneva Convention provides a mechanism, when, if there is a question about a POW status, it must be resolved by an independent judicial. It’s not up to President Bush. It’s not up to individual nations to decide…

APOSTOLOU: That is a misquote to the Geneva Convention. That is a misquote to the Geneva Convention.

MOHAMMED: No, it’s not. And would you let me finish, sir. I let you finish.

And with regard to the 1,200 detainees, yes, those were the detainees. Nobody here has said that that’s the number that’s being held today. But all of the detainees that were sent home, none were charged. And some of my clients spent four months in jail because they basically were violating the INS laws.

And you call that a fair system? Is that the style of democracy that we want other nations to embrace, Mr. Apostolou? Is that what you want?

KOPPEL: Mr. Mohammed, I’m afraid even though you ended with a question we’re going to have to leave it there. Sohail Mohammed, Andrew Apostolou, thank you both for coming in.

APOSTOLOU: Thank you. Pleasure.