In a now-notorious Aug. 1, 2002, legal memo written by conservative lawyers at the Justice Department, the CIA was told it could use a wide variety of unorthodox techniques, including waterboarding, against Al Qaeda suspects. Although the agency insists it has not used waterboarding since 2003, the CIA is believed to have continued to use some "enhanced" interrogation methods, such as temperature manipulation and stress positions, although the precise techniques remain classified. Counterterrorism officials close to the issue say they wanted to maintain the option to trick prisoners into believing they would face physical harm from foreign intelligence services if they didn't cooperate. While the Army Field Manual does permit some trickery, it expressly forbids physical threats to prisoners, as well as coercion, physical abuse and waterboarding. However, Obama's order does call for a special interagency task force to review interrogation methods and recommend some techniques that go beyond the Army Field Manual—effectively permitting the intelligence agencies to remake their case for more leeway.

In a stinging, if not entirely surprising, rebuke to Bush administration legal policies, Obama's order states that U.S. government officials involved in interrogations may no longer rely on any Justice Department legal memos written between September 11, 2001, and Jan. 20, 2009. Such memos—many of them still secret and the subject of fierce controversy during the Bush years—were, with one stroke of Obama's pen, made invalid.

But many of the hardest questions involving detainee treatment remain and are certain to be the subject of further controversy. No sooner did Obama issue his orders, for example, than Kansas GOP Sen. Pat Roberts fired off a press release denouncing as "unacceptable" the idea that some of the detainees there might be moved to a U.S. military prison in Fort Leavenworth, Kans. "If President Obama and [Senate Intelligence Committee chairwoman] Diane Feinstein want [Guantánamo] closed, why don't they move it to Illinois or California?" Roberts said.

Another GOP lawmaker, Sen. Chris Bond of Missouri, vice chairman of the Senate Intelligence Committee, raised the specter of notorious Gitmo detainees even being released inside the country. "I can't think of any city or town across this country that will be thrilled to have Khalid Sheikh Mohammad or Abu Zubaydah living down the street," Bond said.

Obama's directive gives his administration up to one year to shut down Guantánamo—a far longer time span than many human-rights groups would favor. The order directs his newly created interagency panel to review the status of all 240 prisoners there and seek to return as many as possible to third countries that will agree to take them—a goal the Bush administration tried to accomplish on its own with only limited success.

The order further directs that others be tried, either in criminal courts in the United States or in U.S. military court under the Uniformed Code of Military Justice. While the U.S. military commissions—which the Bush administration had been using to seek to try Guantánamo detainees—have been suspended, the Obama administration is leaving open the option of returning to such tribunals under revamped procedures in the future.

The toughest question of all is what to do with a third group of detainees: those deemed to be hard-core terrorists or still dangerous, but who can't be tried either because the evidence against them is classified or was gleaned from waterboarding or other methods that might be deemed to be torture. That group may be as many as 50 or 60 detainees, the senior Obama advisor said.

It is possible that Obama may end up seeking legislation or creating a process that would allow for indefinite detention of this group, with the caveat that some yet-to-be-created tribunal would periodically review their status. But that hasn't been decided. "All we've done for now," the adviser said, "is set up a process."

© 2009