While the Pentagon determined "no torture occurred," the findings were aired in high-profile congressional hearings in 2005 that drew intense scrutiny from human rights groups. A new US Army manual released in September, which does not apply to the CIA, now bans torture and degrading treatment, for the first time specifically mentioning forced nakedness, waterboarding and other tactics.

"Al-Qahtani is one who would cause us embarrassment if he is tried," Silliman said.

A Pentagon spokesman, Navy Cmdr. Jeffrey D. Gordon, said he could not comment on specific cases such as al-Qahtani's unless they are formally charged. He said prosecutions will be made "based on the facts and the law."

"We are giving the most egregious terror suspects, those accused of law of war violations, their day in court," he said.

Wells Dixon, an attorney for the Center for Constitutional Rights, is not so sure. His group represents many of the Guantanamo prisoners, and they are trying to stop the military trials immediately by getting the new law thrown out as unconstitutional.

One of the law's most controversial provisions bars Guantanamo prisoners from challenging in federal court their indefinite detentions as "enemy combatants." The law instead authorizes three-officer military panels to review whether sufficient evidence exists to justify the detention.

The Center for Constitutional Rights successfully sued twice before over the right of habeas corpus, a basic tenet of the Constitution protecting detainees from unlawful imprisonment. Their efforts prompted Supreme Court rulings in 2004 that said foreign-born terror suspects at Guantanamo could have access to US courts.

The rulings left open the possibility that "a properly constituted military tribunal" might suffice as a substitute. But several legal experts and Senate Judiciary Committee Chairman Arlen Specter, a Republican who voted for the new law, say the three-member panels rest on shaky legal ground.

In a filing Wednesday, retired judges from both political parties joined attorneys for the detainees in saying the new law "raises grave constitutional concerns" because it would let authorities use evidence that was gleaned from torturing prisoners.

The Justice Department has until November 13 to respond in the case, which is pending before the US Court of Appeals for the District of Columbia Circuit.

"One of the issues litigated will be whether certain techniques constitute torture," Dixon said. "I fully expect we will learn that many of the detainees who are held in secret prisons are subjected to waterboarding, prolonged isolation and perhaps forced medication."

"We will put the United States on trial for this," he said.

In a sign of that emerging strategy, lawyers for alleged al-Qaida suspect Jose Padilla asked a federal judge in Miami last month to dismiss his terrorism case in criminal court, arguing that he was tortured and force-fed psychedelic drugs at a US military brig for more than three years.

"The torture took myriad forms, each designed to cause pain, anguish, depression and ultimately, the loss of will to live," Padilla's attorneys said in their motion, citing prolonged sleep deprivation, exposure to extremely hot and cold temperatures and shackling in stress positions.

Michael Greenberger, a former Justice Department attorney who is now a law professor at the University of Maryland, said he believes public sentiment may prove to be the deciding factor as judges sort out the legal gray areas.

"People are going to be all over these proceedings," he said. "The human rights groups are upset. Civil libertarians are upset. You've got the worldwide community looking at this as something coming from outer space. This will not be done under cover of darkness."

1

2