Sorting out Guantánamo detainees

"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?

After examining Mr. Qahtani's interrogation records, the top military commissions official at the Pentagon, Susan Crawford, refused to authorize military commission charges against him. She told the Washington Post last week that she considered Qahtani's treatment torture.

Qahtani's lawyers say he should be allowed to return home to Saudi Arabia and enter a Saudi rehabilitation program. Bush administration officials have said he remains a dangerous man.

The Obama administration is expected to conduct a new assessment of the dangerousness of each detainee at Guantánamo as part of its plan to close the detention facility as quickly as possible.

"It is hard for someone on the outside to say what threat still exists, how credible those threats are, and how many people we are talking about," says Diane Amann, an international and military law expert at the University of California, Davis, School of Law. "My suspicion is that it is not going to end up being that many people at the end of the day. We may end up with three, four, five people that are the nut of the concerns that have been raised."

Professor Amann says it would be a mistake to continue to rely on a version of the Bush enemy combatant detention regime. "Are we going to depart from 200 years of legal tradition prohibiting this kind of detention [without charge] and craft an entirely new program on account of three people?" she asks. "It is a political decision that we need to make, and we need to make it with open eyes rather than out of vague fears."

Releasing terror suspects isn't necessarily a setback for the US. American intelligence agents could be tasked to watch them, trace their movements overseas, and tap their phones. If former detainees seek to contact Al Qaeda, their movements and contacts could provide fresh intelligence on the terror group.

"To me, released detainees are a window into the world that is out there, and if we are not looking through that window it is a waste," Denbeaux says.

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