Guantanamo Justice?

Deep in the treacherous mountains along the Afghanistan-Pakistan border, villagers remember the five Kuwaitis who showed up on Dec. 16. The men were hardly the first Arabs to come scrambling over the terrifying paths of snow-covered WhiteMountain, fleeing the American offensives around Tora Bora. They were just the softest. A witness says the Afghan guide who brought them was furious, swearing he'd never take Kuwaitis on that trail again.

Unlike the hardened Arab fighters he'd dealt with before, these were weak, nervous, ill-clothed and inexperienced climbers. The guide grumbled that he and his friend practically had to carry them.

Unlike many "suspected members of Al Qaeda," a lot is known about who these guys were. We know their family backgrounds and their jobs. And we know where they are today: half a world away in the U.S. naval base at Guantanamo Bay, Cuba. NEWSWEEK has traced their strange odyssey from their affluent homeland to their isolated cells on "Gitmo." And what the investigations show are men--all zealous, some naive, some just foolish or unlucky--who don't fit the standard profile of terrorists held at Guantanamo. "These are among the most dangerous, best-trained, vicious killers on the face of the earth," Secretary of Defense Donald Rumsfeld declared soon after the facility was opened. Yet the five who stumbled off White Mountain last December, at least, may be little more than volunteers for their society's versions of faith-based charities.

Can we be sure? No. Al Qaeda has used charities as fronts, and thrives on the murkiness of its membership. There are now 564 prisoners of 39 nationalities at Guantanamo, and some are wanted for crimes, political and otherwise, in their homelands. Of 12 Kuwaitis held, four are suspected by their own government of extremist connections, and at least one of those four was part of an infamous gang of religious zealots who did jail time in Ku-wait. But none of the five who crossed White Mountain is on Kuwait's suspect list. They left their country legally, saying they wanted to help Afghans suffering from drought and famine--and then from the war. They stayed in touch with their families as best they could. They planned to return within weeks but discovered, once the conflict began, that they could not get out. And as the war turned against the Taliban, the Afghan people turned against the Arabs, no matter what had brought them to the country. When the five Kuwaitis made their escape, they took some of the same trails as Al Qaeda, but they traveled as a separate group.

So, are they guilty or innocent? And of what? The Defense Department says answering such questions is not what Guantanamo is about. Set up as a curiously high-profile interrogation center in January this year, it has since become a kind of warehouse for alleged "enemy combatants" whose information about Al Qaeda, in the best of cases, is now out of date. But outsiders' efforts to clarify the status of any detainee--simply to find out what crime he is supposed to have committed--run up against a wall of baffling legalisms. The military's normal penchant for Catch-22s is taken to an extreme that borders on the Kafkaesque: the prisoners are not charged because they're being "interrogated," not "investigated." The Geneva Conventions do not apply because, by presidential decree, these men are not "prisoners of war." But the U.S. Constitution does not protect them because the Pentagon shipped them to "foreign soil," even if it is a U.S. naval base.

The Kuwaiti prisoners are a sampling of what one veteran U.S. intelligence officer calls the "flotsam and jetsam" of the war in Afghanistan. He suggests they're lucky to be where they are: "Would you rather be in Club Med [Guantanamo] or in a mud hut in Mazar-e Sharif?" And some of the Kuwaitis, in rare letters home, would seem to agree. "They treat us well, better than any treatment of any government all over the world," wrote the one who had previously been jailed in Kuwait. But for the families of the five, that's little consolation. One of the detainees was a government auditor and father of five; another worked for the Kuwaiti Ministry of the Interior; a third is a young teacher of the Qur'an who, his family says, has spent his summers since 1996 doing charity work in Africa or Pakistan.