Just retribution or an abuse of human rights? A big question, with only one answer in the US

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The controversy that has erupted over America's treatment of its Taliban and al- Qa'ida prisoners at Guantanamo Bay is more than just a spat about human rights. It reflects the increasingly complex post-Cold War relationship between the world's overarchingly dominant country and its European allies.

America believes it is conducting a righteous war to rid the world of a deadly enemy that will stop at nothing to achieve its fiendish ends. Europe, though, increasingly sees an arrogant superpower on the loose – one that after a brief, tactical flirtation with co-operation in the early stages of the war is back to its old unilateralist ways, safe in the knowledge that its power is unchallengeable.

There is, undoubtedly, truth in these charges. Donald Rumsfeld the Defence Secretary, makes clear America will do this its way, whether the world likes it or not.

Equally, however, the complaints reflect a jealousy and resentment of America's sheer power. This emerged in the not-uncommon European view after 11 September that the US somehow "had it coming". It cropped up, more justifiably, in the denunciations of the civilian casualties caused by the bombing campaign.

Now it is surfacing again, in the criticism of how America deals with its new prisoners, caging them in barbed wire pens half-open to the elements, with only a foam mat on the floor. Lost amid the polemics, however, is a genuine dilemma: how do you deal with some of the most dangerous people on earth? The prisoners at Guantanamo Bay are not genteel prisoners of conscience.

They are cut from similar cloth as the perpetrators of the attacks against New York and Washington that killed nearly 3,000 people, ready to sacrifice their lives if offered half the chance of a repeat. British critics might remember that even at its most ruthless, the IRA never used suicide bombers.

"These folks are ready to chew through the hydraulic wires of a C-17 to bring it down," Richard Myers, Chairman of the Joint Chiefs, remarked when complaints first surfaced about how the detainees had been manacled and blindfolded during their 22-hour flight from Kandahar to Guantanamo Bay. According to US military officials, many of them are still threatening to kill captors and, as one drily remarked: "We do not intend to let that happen." And where else could they have gone? Afghanistan, where American and British troops are sleeping in tents, was clearly not an option. Nor was the US mainland itself, where their presence could have acted as a magnet for more terrorist outrages. Other US bases overseas either did not have the facilities or were not suitable.

British critics are vocal enough in their complaints about distant Guantanamo Bay; what would they have said if al-Qa'ida's finest had been corralled up at Greenham Common? To return Saudis, Pakistanis, Egyptians to their native countries could invite a justice far more summary and brutal than that being meted out by the US now – or, equally conceivably, virtual exoneration for fear that their punishment might set off domestic political unrest. From a logistical viewpoint, Guantanamo Bay is perfect: close to the mainland US, yet remote, protected by the ocean on one side and barbed wire and minefields on the other.

Grudgingly, a critic of America might accept these arguments. But they do not address another complaint: why does not the US formally declare its captives prisoners of war? After all America is fighting what it proclaims itself to be a "war against terrorism". Indeed, by construing 11 September as an "act of war", President Bush invoked the right of self- defence contained in the United Nations charter. Thus the attack on Afghanistan, on whose battlefields the prisoners were taken. Surely, by any interpretation of the English language, they are prisoners of war.

Not so fast, the US says. War was never officially declared. The Pentagon maintains that those taken prisoner were not members of a formal Afghan army – though that is debatable in the case of Taliban soldiers. The al-Qa'ida fighters, obviously are different. Most of them were not Afghans, but "mercenaries of faith" drawn from Arab and Islamic countries, and in at least three instances, from Britain. They wore no uniform, the Pentagon insists, and had no rank.

Hence the strained terms invented by US military spokesmen, of "battlefield detainees" and "unlawful combatants", phrases constructed to distinguish them from conventional prisoners of war. "We are being guided by the Geneva conventions," says Brigadier-General Mike Lehnert, in charge of security at Guantanamo Bay. The operative words of course are "guided by". In fact these sophistries have two serious purposes. First, if they were officially categorised as prisoners of war, Americans would lose their right to interrogate them beyond establishing their name, rank and military number. These men are being held, first and foremost, to help the hunt for new facts that can be fitted into the far-from complete mosaic of al-Qa'ida.

This explains why Washington has not yet released the names of those it is holding. Among them, Pentagon officials have hinted, are some fairly senior members of the terrorist organisation. Battlefield interrogators have done some preliminary work in Afghanistan. Now the FBI, the CIA and the Defence Intelligence Agency will have their own, far longer turn at Guantanamo Bay, an hour's flight from General Tommy Franks' Central Command in Tampa.

But there is a second, more subtle reason the detainees are not declared prisoners of war. The US is out to avenge 11 September, and this is a war of example. The world has seen how American military power has wrecked al-Qa'ida in Afghanistan. It is now seeing what happens to those who are taken prisoner. Rightly or wrongly, America calculates that others tempted to take up arms against it may have second thoughts.

In terms of diet and hygiene, the prisoners are not being treated especially badly. But as Mr Rumsfeld points out: "We are not running a country club." The question is where legitimate security requirements end and police state intimidation begins. Round-the-clock halogen lighting of cells may be defended as a sensible precaution. But sleep deprivation and constant light are also techniques of police states through the ages. The problem is less America taking the law into its own hands, more what law it chooses to behave by.