The ACLU, meanwhile, has identified an important point about the chronology of the CIA’s internal communications about the tapes. Although the communications remain classified, the dates and summaries of their content provided by the government reveals that a request to destroy the 92 tapes were  made just days after The Washington Post reported on the existence of secret overseas CIA prisons known as “black sites.” Another request was made on the day The New York Times reported that the CIA inspector general had issued a report questioning the legality of the agency’s interrogation methods.

The tapes were destroyed that same day.

While that sounds good, remember that the Detainee Treatment Act was interpreted by the Bush administration’s Justice Department to allow such “enhanced interrogation techniques” as sleep deprivation, food deprivation, shackling, forced standing in stress positions, and a variety of “corrective techniques” that include physical slaps and grabs – either alone or in combination. The new “protections” in the MCA amendments are therefore not all that reassuring.

The amendments also continue to allow judges to admit hearsay evidence, even though the source of the evidence is unavailable for cross-examination by defense counsel. Classified evidence can also still be used against a defendant, although he does not have the right to see it. Protections were added, however, so that the procedures used to protect classified evidence essentially mirror those used in a civilian federal court.

This post has been updated.

The OLC is the office that housed such Bush-era luminaries as John Yoo and Jay Bybee, and issued the infamous “torture memos” that defined torture so narrowly that even waterboarding — which had always been considered a form of torture before, even by the United States — now passed legal muster. Johnsen was one of many critics of that office’s legal opinions during the Bush presidency, earning her the lingering ire of many Republicans.

Among them was Specter, who, during her confirmation hearing in February, took the lead in painting her as a radical left-wing ideologue. In April, even after switching parties, he reaffirmed that he was still opposed to her nomination. As a result of the staunch opposition of Specter, Sen. Ben Nelson (D-Neb.), and most Republicans, the Office of Legal Counsel has gone without a confirmed leader to advise the president on critical legal issues, such as the use of warrantless wiretapping and the treatment and trials of suspected terrorists and “war on terror” detainees.

But now, it looks like Specter may be changing his mind. Specter’s press secretary, Kate Kelly, emailed me Thursday with this:

Senator Specter has several concerns about Ms. Johnsen’s nomination, including her views on executive power and abortion. Senator Specter is solidly pro-choice, but he disagrees with her position equating limitations with involuntary servitude. Senator Specter had a second meeting with her to get clarification on her positions and he is still considering her nomination.

As I pointed out during Johnsen’s confirmation hearing, Specter grilled her on a footnote buried in a friend-of-the-court brief she’d co-authored with 10 other lawyers representing 77 different public interest organizations, 20 years ago in an abortion rights case when she was a lawyer for the National Abortion Rights Action League. The footnote said that laws curtailing the right to an abortion “are disturbingly suggestive of involuntary servitude, prohibited by the 13th Amendment, in that forced pregnancy requires [a woman] to provide continuous physical service to the fetus in order to further the state’s asserted interest.”

“When I read in your writings that abortion bans are a violation of the 13th Amendment ban on slavery,” Specter chastised Johnsen at her confirmation hearing, “that seems to me candidly beyond the pale.”

Johnsen, flustered, responded that, as far as she could remember, she hadn’t actually equated outlawing abortion with slavery, but was just making an analogy. Anyway, the point, while creative, was pretty tangential to the core of the brief’s argument. It was, after all, relegated to footnote 23. But that clearly did not satisfy Specter, who remained firmly opposed to her nomination.

Until Thursday.

The change is consistent with Specter’s overall transformation, captured well by Nate Silver’s Specterometer at FiveThirtyEight.com. According to Silver’s analysis, after switching parties on April 28th, Specter started out voting with the Democrats on “contentious votes” about two-thirds of the time. But since Rep. Joe Sestak (D-Pa.) announced on May 27 that he plans to challenge Specter in the 2010 Democratic primary, Specter has become a far more loyal party member, voting with the party on “contentious votes” 97 percent of the time.

That was Silver’s count in July, and I don’t have the count to date, but it does give some indication as to why Specter decided to meet with Johnsen a second time, and is now “reconsidering” which way he’ll vote on her nomination.

Developed by the Bush administration, the mandatory use of E-Verify, a computer system for employers to check their workers against the Social Security database, is another example of the Obama administration’s emphasis on enforcing the immigration laws to keep illegal immigrants from living and working in the United States. However, the administration has yet to press for a comprehensive immigration reform plan that would legalize some of the immigrants already living and working here.

Many experts and government officials expect the E-Verify system to eventually become mandatory for private employers as well, though critics say it relies on flawed databases that may wrongly disqualify employees who are legally authorized to work in the United States. A 2007 study by a research organization hired by the Department of Homeland Security found that E-Verify’s error rate for foreign-born U.S. citizens was almost 10 percent. It also found that employers often terminated or refused to hire workers whose information was initially unconfirmed by the E-Verify system, rather than allow the employee or applicant to try to fix the problem.

About 169,000 federal contractors and subcontractors are expected to be covered by the mandate that begins today.

That’s because the current administration announced earlier this week that it will continue the rendition program, albeit under the authority of a broader inter-agency team. But the administration has not ruled out sending terror suspects to countries that are known to torture them in custody.

A Justice Department release on Monday clarified that the U.S. government will obtain “assurances from foreign countries” that they’ll treat the prisoners humanely, and will “insist on a monitoring mechanism” to check up on the prisoner every once in a while, although it may provide some “advance notice to the detaining government.”

Whether or not that “trust me” approach is really worth trusting, given the similar assurances provided by the Bush administration, it does suggest that the Obama team may not welcome an Inter-American Commission inquiry into rendition.

Although the original El-Masri court case that Spencer referred to was brought against the Bush administration, more recent attempts to sue the government on behalf of innocent victims of extraordinary rendition have been similarly rebuffed by the Obama Justice Department, and on the same “state secrets” grounds.

As a result, not one victim of the Bush administration’s rendition program has had his day in court.

El-Masri, a German citizen, was kidnapped in 2003 in Macedonia and flown by U.S. agents to a CIA-run “black site” in Afghanistan. There, he claims he was beaten, drugged, blindfolded, confined in a tiny dirty cell, and prevented from communicating with anyone in the outside world, including his own family or the German government. About four months later, after apparently concluding that they had captured the wrong person, the CIA flew him to Albania and left him on a hillside in the dead of night. El-Masri has never been charged with a crime.

Update:  According to Steven Watt, El-Masri’s lawyer, the Obama administration probably couldn’t make the “state secrets” claim in the Inter-American Commission, which does “not recognize blanket prohibition on accessing courts to assert fundamental rights.”  However, ” Obama can try to argue that the state secrets privilege was legitimately raised before domestic courts and El Masri thus wasn’t denied access to a remedy (one of El Masri’s claims before the IACHR) but in our view, based on our assessment of international law, Obama wouldn’t prevail.”

He adds: “there is no equivalent of the state secrets privilege recognized under international human rights law to bar a human rights victim accessing an international tribunal such as the Commission. ”

The Obama administration is now saying the same thing.

Today, it assured reporters in a background briefing with administration officials that although the U.S. government will continue to send terror suspects to foreign countries for interrogation — what has notoriously become known as “rendition” — it will seek assurances from those countries that their interrogators won’t torture the suspects.

Of course, the Bush administration said it sought and received those same assurances. After all, it’s long been illegal, both under U.S. and international law, to send detainees to countries where they’re likely to be tortured. So what’s different now?

“The State Department will play a larger role to ensure that those assurances are credible,” said one senior administration official during the background briefing. (Why the briefing was on background and not for attribution to particular administration officials isn’t clear.)

So, asked Eli Lake of The Washington Times, will the United States simply stop sending suspects to countries that are known to torture suspects, such as Egypt or Syria?

No, the administration is not willing to go that far, a senior administration official said.  However, “we will ensure that we have the appropriate assurances in place that gives us strong confidence that the individuals in question will not be tortured.”

The Obama administration is now saying that, unlike the Bush administration before it, it will seek to verify that suspects aren’t being tortured. According to a paper released by the Justice Department today, the task force recommended that “agencies obtaining assurances from foreign countries insist on a monitoring mechanism, or otherwise establish a monitoring mechanism, to ensure consistent, private access to the individual who has been transferred, with minimal advance notice to the detaining government.”

That sounds like an improvement, though having to provide any advance notice to the detaining government is problematic. The policy still, to some extent, allows the U.S. government to trust foreign officials who promise they won’t torture a terror suspect, even if they are officials of a country that is known by the United States to torture terror suspects.

The State Department may play a larger role than it did before, but the new interagency process is ultimately under the control of the president’s National Security Council. That’s better then keeping it a purely CIA function, as it was before. But it still raises the question of why the United States plans to send terror suspects to foreign countries known to torture them, and just how vigorous — and how long-lasting — U.S. monitoring will really be.

The IG report also apparently reveals that at least one detainee was threatened with a gun and a power drill during the course of CIA interrogation.

Although Bush administration officials investigated the cases discussed in the report and concluded that no prosecutions were warranted, Attorney General Eric Holder is now considering re-opening some of those cases to see if perhaps some CIA officials, despite the wide latitude they were given by the Bush administration, went even farther than Bush-era legal memoranda said was allowed.

“I think it’s encouraging that they’re moving ahead despite the opposition,” said David Remes, Executive Director of Appeal for Justice, who represents more than a dozen detainees from Yemen imprisoned at Guantanamo.  Opponents “have unfortunately resurrected the idea that the guys down there are ‘the worst of the worst,’ and so dangerous that one has to consider whether even maximum-security facilities are able to hold them.”

Moving the prisoners will at least make visiting them easier. “We won’t have to take a commercial flight to Fort Lauderdale and then a puddle-jumper to Guantanamo, or submit to the restrictions of a military base,” he said. Federal officials can still place strict limitations on lawyers representing terror suspects in the United States, though, including preventing them from talking to the media about the evidence in their cases.

“On the other hand, what appears to be happening is that Obama’s efforts to release the men who ought to be released is being stymied by political opposition,” Remes said. “And it will be deeply unfortunate if he ends up moving Gitmo from Cuba to Michigan.” Many of the men should be released, Remes insisted. “And by eliminating the symbol of Guantanamo, there’s a danger that the focus on the plight of these men will disappear.”

Candace Gorman, a Chicago-based lawyer who represents two prisoners at Guantanamo, shares that concern.

“We have not asked for Guantanamo to be closed so that the men could be moved to different prisons,” she said. “Some of these men, including my two clients, have been held for more than seven years without charges. It is time to either charge the men or release them … moving them to a different location does not solve the problem.”

Scott Horton reports on the case and provides links to all the court documents on The Huffington Post.

Azar claims he was threatened and coerced into signing a confession in ways that amounted to torture. He says he was hooded, strip-searched, photographed naked, exposed to extreme cold and sleep-deprived. He also alleges that while he was driven to the U.S. prison at the Bagram air base, a federal agent “pulled a photograph of Azar’s wife and four children from his wallet” and said he’d better confess to bribing a contract officer if he ever wanted to see them again.

The government denies that charge and calls Azar’s claims of torture “hyperbolic.”

On one hand, Sullivan’s right that prosecuting only the individual interrogators who went beyond the torture that was actually authorized by the Bush administration — such as waterboarding, which Holder himself has admitted is torture — might suggest that what the Bush lawyers approved was legal, despite the egregiously flawed legal reasoning that backed it up.

On the other, at this point, it’s important that the attorney general start somewhere, particularly since Congress so far doesn’t seem to have the stomach to follow through with its earlier ideas of investigatory commissions that would reveal exactly how the torture policies were developed and why.

A criminal investigation of even low-level CIA interrogators who exceeded the guidelines they were given should, if done thoroughly and honestly, inevitably lead to questions about how those guidelines were communicated down the chain of command, and whether higher-ups approved the more extreme conduct. And that may be the best hope for raising the ultimate questions of how the rules were developed and whether their authors knew they were stretching the limits of the law even as they crafted them.