From NPR News, this is All Things Considered. I'm Michele Norris.


And I'm Robert Siegel. When President Obama signed an executive order to close Guantanamo Bay, he ordered a review of what to do with the roughly 245 detainees who are still held there. Coming up, we'll examine what's happened with rehabilitation programs aimed at Jihadists.

For the current detainees, some may be returned to the home countries or to a third country. Others likely will be prosecuted. And there's a third category which may be the most problematic. Here's NPR's Jackie Northam.

JACKIE NORTHAM: Among the remaining detainees at Guantanamo Bay are roughly 100 men whom the Pentagon says are too dangerous to release and yet can't be tried for a lack of evidence.

Mr. SABIN WILLETT (Partner, Bingham McCutchen, Boston): I have one question. What are their names?

NORTHAM: Sabin Willett is a Boston lawyer and has represented Guantanamo detainees for nearly four years. He criticizes the Pentagon for not naming the detainees who fall into this category or state what kind of threat they represent. Pentagon officials simply say the threat is high. Willett sharply questions the assertion that there are detainees who can't be tried and can't be released.

Mr. WILLETT: And who's decided that they're too dangerous to hold and on the basis of what? Or are they really saying that we have these people down there and the only evidence on them is what we tortured out of them, which we can't use in a prosecution.

NORTHAM: Willett says there is little reason to believe statements that these men are too dangerous to let go. After all, about 500 Guantanamo detainees - men whom the Bush administration referred to as terrorists, have already been released.

And while the majority melted into obscurity, the Pentagon claims that several dozen of those freed are now in terrorist operations. Bradford Berenson is a Washington lawyer who helped draw up the policies for the military commissions at Guatanamo.

Mr. BRADFORD BERENSON (Litigator, Sidley Austin LLP): We've been tricked into releasing people that we have captured and held at Guatanamo who are, in fact, senior al-Qaeda operatives and who, after release, have gone back to the battle and back to planning attacks on the United States and its allies.

NORTHAM: Many analysts, military and civilian, say there has to be a better way to gauge the risk posed by these so-called dangerous detainees. There is increasing concern among human rights groups and defense lawyers and others that the approximately 100 men may fall into some legal black hole.

David Rittgers, a legal policy analyst at the Cato Institute, says the U.S. doesn't really have to let the men go or prosecute them under the law of war.

Mr. DAVID RITTGERS (Legal Policy Analyst, Cato Institute): We know that we can hold these people until cessation of hostilities. The law of war supports that. I don't take credibly claims that that's somehow inhumane to hold these people who clearly are combatants.

NORTHAM: Rittgers says the troubling part is that no one knows when the war on terrorism is going to end. That's just one of the variables that President Obama's task force on Guatanamo is going to have to consider.

Rittgers says he'd like to see Guatanamo closed and some of the detainees tried in federal court, but he says it's likely the members of the Guatanamo task force may very well agree that there are some men the U.S. cannot try in any courtroom. If so, Rittgers says President Obama will need to explain it fully and carefully to the American public.

Mr. RITTGERS: And if that's done right, if that's done openly and just with an eye to convincing people that we can't let them go, then we will end up keeping some of these people under those conditions.

NORTHAM: Brad Berenson says the new administration will have more luck explaining the situation than the Bush administration.

Mr. BERENSON: I don't think that people around the world or interest groups in our own country are nearly as suspicious of the new administration's intentions and basic background beliefs as they were of those of the Bush administration.

NORTHAM: But holding someone without charge or trial goes against the grain of everything the U.S. is supposed to stand for, says lawyer Sabin Willett.

Mr. WILLETT: And let's also be honest about what it means. When does a person stop being too dangerous to release? I mean, if it's a life sentence, we better be honest with ourselves in saying we've become a country that holds people in a prison for life because somebody in intelligence has a suspicion.

NORTHAM: The Pentagon says a comprehensive inter-agency review of each detainee will be conducted. After that, the prisoner's fate will be determined on a case-by-case basis. Jackie Northam, NPR News, Washington.

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