The Obama administration is likely to face new challenges in deciding what to do with terrorist suspects held at the U.S. prison camp at Guantanamo Bay, Cuba. That's especially true in light of the current chief prosecutor's statement that she refused to prosecute a key suspect in the Sept. 11, 2001, terrorist attacks because he had been tortured.
Legal advocates say prosecutions of other suspected terrorists are also likely to be tainted if the evidence in their cases was obtained by torture, but they say it may still be possible to try them fairly on evidence gained by noncoercive means.
The latest revelation came in a Washington Post story in which Judge Susan Crawford, the Bush administration's chief prosecutor for Guantanamo detainees, said she decided not to prosecute Mohammed al-Qahtani because he was tortured.
Qahtani is a Saudi national, now 30, who is alleged to have been the would-be "20th hijacker" in the 2001 attacks on the World Trade Center and the Pentagon. He was denied entry to the United States a month before the attacks and was later captured in Afghanistan. Crawford told the Post's Bob Woodward that Qahtani's treatment during interrogations "met the legal definition of torture," and thus tainted his statements so badly that they couldn't be used as evidence.
Crawford is in charge of reviewing practices at Guantanamo and deciding whether to bring prisoners to trial. Her statement marked the first time a senior Bush administration official in her position has publicly said a detainee was tortured. President Bush and Vice President Dick Cheney have maintained that the United States never used torture in its interrogations of terror suspects.
Although military prosecutors said in November that they would refile charges against Qahtani based on evidence that was not obtained by coercive techniques, Crawford told the Post that she would not approve the further prosecution.
Jennifer Daskal, the U.S. advocacy director for Human Rights Watch, says "Crawford's point about Qahtani is that he was so tortured and so damaged by the torture that even statements obtained later by a so-called 'clean team' can't be used, because you can't remove the taint of torture."
"Clean teams" were teams of prosecutors set up after the Defense Department issued new guidelines forbidding the use of some of the most aggressive questioning techniques. The teams were given the job of building cases against the detainees that did not involve any of the information gained through harsh interrogations.
Daskal says it's hard to say how many other detainees at Guantanamo may be affected by Crawford's decision, because outsiders have not seen the evidence against them.
But she notes "it's very possible to prosecute someone without relying on their own statements."
She says the first step for the Obama administration will be to review the files and put together cases that don't rely on evidence gathered through torture.
Charles "Cully" Stimson, who oversaw detainee affairs for the Pentagon in 2006 and 2007, says he agrees wholeheartedly with Crawford's comments. Stimson, now a senior fellow at the Heritage Foundation, says the use of torture could make it impossible to prosecute some terrorism cases that took place after 9/11. But, he says, "the $100,000 question" is whether the harm done to someone such as Qahtani was so egregious that it makes it impossible to prosecute him for acts done before 9/11.
"There is no doubt some of these cases are tainted," Stimson says. "And the question is whether there's a work-around to prosecute them in other ways."
In Qahtani's case, that could mean prosecuting him based on his alleged efforts to take part in the 9/11 plot, using evidence that didn't involve statements obtained during later interrogations.
Daskal says it's possible that federal prosecutors could try Qahtani on new charges of conspiracy without using his coerced statements. She says it looks as if evidence against Qahtani may have been available to the government before the interrogations ever started.
The question that remains is what should be done with prisoners such as Qahtani if they are not prosecuted, or if they are tried and found not guilty.
Daskal says they should be released.
Stimson says, "As a military man, I still believe in the broader concept of military detention during war time."
He stresses that detention would not be indefinite, and that it should be subject to protections for the detainees' rights and periodic reviews.
"There should be a presumption that, over time, the guy is releasable," he says.
Daskal notes that Crawford's statements on detainee torture raise a larger question: "It's a huge deal that the prosecutor basically said that a crime was committed."
She notes that Crawford not only said the treatment of Qahtani met the legal definition of torture, but that the techniques were approved by former Defense Secretary Donald Rumsfeld.
"At a minimum," Daskal says, "that suggests there is a need to investigate."