Change of command: Chief Petty Officer Bill Mesta replaces George Bush's photo with President Obama's in the lobby of the headquarters of the US Naval Station in Guantanamo Bay, Cuba. brennan linsley/ap

President Obama's pledge to close the terror prison camp at Guantánamo Bay, Cuba, is being hailed as a major step toward restoring world opinion of the United States as a champion of human rights and the rule of law.

But it remains unclear to what extent Mr. Obama will make a clean break from controversial policies in the Bush administration's global war on terror.

Obama administration officials agree that certain Al Qaeda suspects at Guantánamo should be tried in federal or regular military courts rather than the special military commissions set up under President Bush. And they agree that many of the remaining 245 detainees can be returned to their home countries for release or further detention.

But there is less agreement over what to do with a potential third category of detainees – an uncertain number of terror suspects whose cases do not lend themselves to prosecution in civilian or military courts but who are viewed as too dangerous to release.

In one of his first acts in office, the new president asked military judges at Guantánamo to halt ongoing commission trials pending a top-to-bottom policy review of the detention facility and the terror tribunals.

Some experts urge imposition of a bright-line policy to force the US government to either charge detainees with a crime or release them. They suggest that creating a third category of detainees deemed too dangerous to release would perpetuate Mr. Bush's policy authorizing the indefinite detention without charge of persons he deemed "enemy combatants."

"The problem with this is all fear," says Mark Denbeaux, a law professor at Seton Hall University School of Law in Newark, N.J., who wrote a series of reports critical of US actions at Guantánamo. Some pundits and security experts are "playing political games about dangerousness."

The best way to close Guantánamo, he says, is to file criminal charges against detainees who can be prosecuted and release the rest. "Everyone is looking for a perfect solution to an intractable pair of choices," Mr. Denbeaux says. "There is no magic bullet."

What makes the issue so difficult is trying to maneuver around controversial past US actions at Guantánamo – harsh interrogations and alleged torture, bypassing the Geneva Conventions, use of coerced statements to justify further detention, military commissions with stripped-down due process protections. "Everybody is ... trying to make policy and determine issues out of a half dozen absolutely disgusting aberrations," Denbeaux says. "Somehow we want to both convict these people and separate ourselves from the evil we did to them."

Many human rights advocates and detainee lawyers are urging Obama to turn a new page. "The most expeditious way to close Guantánamo is to announce as a matter of principle that 'charge or release' is going to be the methodology for sorting through these cases," says Shayana Kadidal, managing attorney of the Guantánamo Project at the Center for Constitutional Rights in New York.

Prosecution may not be possible

Other analysts warn of the potential consequences of trying to force the prosecution of cases built on evidence tainted by coercive interrogations or torture.

"It may make it impossible to prosecute them under the normal rules of criminal procedure," says Tung Yin, a national security law expert at the University of Iowa College of Law in Iowa City. "In a regular criminal case we would say the government violated the constitutional rules so the remedy is to suppress the evidence. The government can't make its case without the suppressed evidence so the defendant has to be let go."

Professor Yin says the prospect of releasing so-called high value terror suspects may force the new administration to create a system of preventive incapacitation similar to Bush's enemy combatant detention regime.

"I think there is going to be some discomfort level with simply releasing Khaled Shaikh Mohammed," Yin says.

Mr. Mohammed has admitted to being the mastermind behind the 911 attacks. But government officials have also acknowledged that he was subjected to harsh interrogation techniques, including waterboarding, which many experts consider a form of torture.

Special FBI teams have been working to assemble evidence against Mr. Mohammed and other top terror suspects that is not tainted or otherwise linked to statements induced through harsh interrogations.

Another potential candidate for preventive incapacitation is Mohammed Qahtani, a Saudi national believed to have been selected as the 20th hijacker for the 9/11 attacks. After being denied entry to the US, he was captured in Afghanistan and transferred to Guantánamo in 2002. He was subjected to an array of coercive interrogation tactics, including severe isolation, sensory deprivation, stress positions, and sexual humiliation.

Was evidence tainted by torture?

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