“Is the president going to have the authority to decide if the Supreme Court has deliberated too little on a case?” CitizenLink quotes Yoo writing on the matter. “Does Congress have the right to decide whether the president has really thought hard enough about granting a pardon? Under Obama’s approach, he could make a recess appointment anytime he is watching C-SPAN and feels that the senators are not working as hard as he did in the Senate (a fairly low bar).”

CitizenLink identifies Yoo only as “a law professor at the University of California at Berkley, who is well known in legal circles for advocating executive power.”

Yoo is perhaps one of the most controversial figures in U.S. legal history. His torture memos were eventually disavowed by the Bush justice department. The Office of Legal Counsel where Yoo worked repudiated them as unsound and dangerous. After a five year inquiry, the department’s Office of Professional Responsibility reported that Yoo had “committed intentional professional misconduct when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques…” During the inquiry, Yoo told investigators the “president… had the constitutional power to order a village to be ‘massacred.’” Three years ago, Spanish Judge Baltasar Garzón Real launched an investigation of Yoo for war crimes.

By contrast, the Obama appointments this week can be seen in context less as any kind of historic overstep and more as just another strategic move in a Capitol Hill chess game.

The appointments come after three years of deep congressional dysfunction and after the president in recent months vowed to act where he can to use executive orders to bypass congressional obstructionism.

“We’re not going to wait for Congress… Where they won’t act, I will, through a series of executive orders… We’re going to look every day to see what we can do without Congress,” he told a crowd in October gathered on the downtown Denver Auraria Campus.

The argument against the appointments is that the Senate was not in fact in recess when Obama made them. The White House says the Senate was “in session” in name only, opening up for do-nothing 30 second meetings in order mainly to keep the president from appointing Cordray to head the two-year-old leaderless Consumer Financial Protection Bureau (CPFB), which was created by Congress over the objection of bank lobbyists to protect credit card holders, for example, from gouging interest rates and fees.

Republican senators have for months blocked confirmation of Cordray, who is a Republican and a former attorney general of Ohio. The senators say they do not object to Cordray but only to how the CPFB is organized. Its financing, for example, comes from the Federal Reserve, which means Congress can’t influence the agency by controlling its budget. Yet, in two years, none of the senators have introduced legislation to rework the CPFB, leading most observers to conclude that, on one hand, the Republicans, acting on behalf of the banks, don’t want the bureau to ever functionally exert its regulatory mission and, on the other, don’t want to go on record with that stand in an election year where the commitment of lawmakers to represent the interests of their constituents instead of the interests of corporations is being seriously called into question.

Jon Stewart on Thursday laid out the controversy in typical succinct and damning fashion:

Under the executive order, agencies were required to submit their own compliance plans. The administration has set a goal of “28 percent reduction by 2020 in direct greenhouse gas pollution, such as those from fuels and building energy use, and a 13 percent reduction by 2020 in indirect greenhouse gas pollution, such as those from employee commuting and landfill waste,” according to the White House.

The federal government is the largest energy consumer in the United States, and if these goals are met, the White House estimates that carbon dioxide emissions will be reduced by 101 million metric tons.

Here are the sustainability plans.

“They’ve made it really clear that the president right now is not supportive of a public commission of inquiry,” Killmer said in a phone conversation this morning.

Killmer has had better luck in Congress, where at least some Representatives support creating a House Select Committee to investigate torture. Although that would be more political than an independent commission, he said, at least it’s something. “There are a significant number of members of the House who know this isn’t done,” says Killmer, whose group has had more than 60 meetings with House members on the issue since June.

The religious campaign has made some headway on related issues, working with Rep. Rush Holt (D-N.J.), chair of the House Select Intelligence Oversight panel, to convince Congress to pass a bill that would require the taping of all interrogations of detainees in U.S. military custody. The House passed the bill last week as part of the 2010 Defense Authorization Act. It could be voted on by the full Congress next week.”Our constituents understand the need for videotaping interrogations,” says Kilmer, “and the videotapes have to be protected so they’re an ongoing part of our history. It’s one way of making sure it doesn’t happen again.”

The religious groups also hope to achieve a codification of the terms of President Obama’s executive order mandating that all interrogations follow the rules of the Army Field Manual, and that the U.S. basically follows the “Golden Rule” when it comes to interrogations: we don’t do to others what we wouldn’t want them to do to our soldiers.

Still, Killmer said, codifying this for the future isn’t enough. After all, we had a Convention Against Torture and that still didn’t stop the U.S. government from torturing people.

In addition to a commission that would expose everything that happened and why, Killmer and other religious leaders are exploring the possibility of asking the government for an apology.”I think it’s extremely important,” says Killmer. Other countries have taken that step, such as Canada, which apologized — and paid $10 million – to Canadian citizen Maher Arar who, with the help of bad intelligence from Canada, was sent by U.S. authorities to Syria for interrogation under torture.

“This was wrong behavior,” says Killmer of the entire U.S. “enhanced interrogation” practice. And an apology “would help grow the moral consensus that torture is wrong,” he says, something he assumed existed before 2001, but now isn’t sure.

“Dick Cheney gets more credence than I would have imagined,” says Killmer. “The American people are still wrestling with this stuff.”

Killmer and his colleagues were dismayed when a Pew Research Center poll last spring found that a majority of Catholics and even evangelicals believe that torture is sometimes necessary. “That says we have a lot to do,” says Killmer. His group has put together this short interfaith video on U.S.-sponsored torture which they plan to show at churches, synagogues and mosques across the country, in part to explain that yes, torture really is a violation of all the dominant religions in the United States, and to encourage believers to join the anti-torture campaign.

Whether religious support is ever going to be strong enough to get that official apology is another matter. Although the U.S. has apologized for some things in the past — the Japanese internment during WWII, and slavery — in both cases, it came many decades after the deed. Killmer is cautiously hopeful: “It would be terrific if this could happen much more quickly.”

Meanwhile, White House legal counsel Greg Craig, who initially led the Guantanamo closing drive and drafted the president’s executive order, has been shoved aside to make way for Pete Rouse, a senior adviser and fix-it man, who will reportedly oversee the Guantanamo closing process going forward.

Craig is expected to leave his post at the White House soon.

As Spencer wrote today, someone in the administration told ProPublica’s Dafna Linzner and The Washington Post’s Peter Finn that yes, civil liberties groups support the idea of an order that “would embrace claims by former President George W. Bush that certain people can be detained without trial for long periods under the laws of war.” That statement amazed the civil liberties groups that Spencer then spoke to. I’ve gotten similar reactions from civil liberties lawyers I’ve been speaking to since Friday as well.

But it turns out that there are some progressives, and some who’d even traditionally be called civil libertarians — though not representatives of the traditional civil liberties groups Spencer and I have spoken to — who have been floating the idea, but in a more limited way than the Post story suggested.

Specifically, a group of prominent military and criminal defense lawyers and academics on June 8 sent President Obama a letter urging him not to create a new system of preventive detention, but instead, to rely on the one we already have — with modifications, if necessary. Although they don’t specifically recommend an executive order, that’s the logical way for the administration to modify and clarify its authority.

“Our country can achieve its legitimate goals through existing laws which authorize the detention of those who should be detained in the fight against international terrorism,” says the letter, which I received just this afternoon. It’s signed by 11 prominent lawyers, including Retired Rear Admirals Donald Guter and John Hutson of the Navy’s Judge Advocate General’s Corps; Abner Mikva, a former federal appellate court judge, University of Chicago law professor, White House counsel under President Bill Clinton and a mentor to president Obama; and Thomas Wilner, a prominent corporate defense lawyer who’s represented Guantanamo detainees in some of the landmark cases decided by the U.S. Supreme Court.

“Longstanding law-of-war principles authorize the detention for the duration of armed hostilities of those who engage in armed conflict against the United States or its allies,” these experts write, adding: “Some modifications to the existing system may be warranted, but no new system is necessary.”

The letter specifically tries to steer President Obama away from proposing or supporting any new legislation that would create a new preventive detention authority.

Ken Gude at the influential Center for American Progress has also suggested that the president should clarify his authority of detention under the laws of war. In a recent memo he co-authored with Kate Martin of the Center for National Security Studies, he and Martin write that the “ambiguities” left by the Bush administration over who is detainable under the laws of war “compound the lack of fundamental fairness in treating suspected criminals as combatants and holding them without trial.” Given how the detention authority has been used over the past eight years, “the new administration should now reassert the traditional understanding of the limits of the law of war and reject the former administration’s effort to read the word “organization” in the AUMF [Authorization for the Use of Military Force] as effecting an unprecedented extension of the traditional understanding of the military’s extraordinary powers of detention during war.”

In an e-mail this afternoon that he sent from Paris, Gude says he never specifically proposed an executive order, but supports the idea and adamantly opposes new legislation.

Gude laid out his support publicly for a limited system of preventive detention, authorized by the laws of war which allow detention of combatants during a military conflict, on CAP’s site and in The Guardian.

Even David Cole, the normally staunch civil libertarian law professor at Georgetown, has argued that the administration has that authority, calling it “an appropriate and necessary means of dealing with enemy fighters during wartime.” (Cole was pilloried for taking that position by Kenneth Anderson in Opinio Juris, who asks, “if it’s sensible and legal now, why wasn’t it sensible and legal during the Bush years? Is this the same David Cole who appeared on panels with me over the last few years and who didn’t seem in those years to have any daylight between him and the Center for Constitutional Rights, Human Rights Watch, or Human Rights First on the principle of try-or-release?”)

Let’s set aside for now the very legitimate question of whether these progressive civil libertarians would have taken the same position during the Bush years, or if they just inherently trust President Obama to handle battlefield detention against a non-traditional enemy better than Bush did. The positions these people are taking is informed, at least, by what the Supreme Court ruled in Hamdi v. Rumsfeld, although that case pertained only to the detention of Taliban fighters, while we were at war with Afghanistan. And it’s in line with what the federal courts have been ruling, with some variations, in a string of habeas corpus cases.

The proposal for an executive order to clarify the Obama administration’s position on the extent of its wartime authorities of preventive detention is very different, however, from the controverisal position that some more conservative lawyers and think-tank scholars like Jack Goldsmith, Benjamin Wittes and Neal Katyal (traditionally a moderate Democrat and now deputy solicitor general in the Obama administration) have been promoting. The Wittes proposal released on Friday with Brookings colleague Colleen Peppard, for example, would create an entirely new system of preventive detention that’s not limited to the president’s authority under the laws of war.

On Monday, Goldsmith, a Harvard law professor and former head of the Office of Legal Counsel at DOJ under President Bush, joined Wittes, a Brookings scholar, in a Washington Post op-ed to argue that a preventive detention scheme should be debated in Congress and spelled out clearly through legislation, not by the president by executive order. To them, an executive order would be “a nearly wholesale adoption of the Bush administration’s unilateral approach to detention.”

That, it seems, is where the current debate lies. Committed civil liberties advocates such as the ACLU, Center for Constitutional Rights, Human Rights Watch and others may still be arguing against a preventive detention scheme entirely, but given that the Obama administration has consistently argued its right to detain “combatants” (however they’re defined) during what it continues to call a “war” — not only in the Gitmo habeas cases but in regards to the detention of some 600 men imprisoned at the U.S. Air base in Bagram, Afghanistan — it’s impossible to imagine that the administration is going give up that authority in the future.

Although as Spencer pointed out, White House spokesman Robert Gibbs did say on Monday that the president is not considering issuing an order that “relies on legal theories that we have the inherent authority to detain people,” he certainly didn’t rule out basing a preventive detention system on some other authority — whether granted by the laws of war, or by an act of Congress.

I’ll be writing more soon about what that Congressional act might look like.

I think the President addressed the notion and the very tough issue that the administration is likely to face, and that is that we are going to have detainees that will be hard to prosecute and too dangerous to release.  And while the administration is considering a series of options, a range of options, none relies on legal theories that we have the inherent authority to detain people.  And this will not be pursued in that manner.

You don’t get the sharp, declarative sentence “We will not put forward an executive order on preventive detention,” but this comes fairly close. I suppose the White House could issue an executive order claiming authority for preventive detentions that doesn’t rely on inherent presidential authority — Daphne, can you help me out here? — but in the full context of the presser, Gibbs seems to be trying to shy away from the executive-order option, which is commensurate with other stuff I’m hearing from the administration.

Writing over at Daily Kos, David Waldman, who attended the administration’s May 20 heart-to-heart with civil liberties groups, is similarly perplexed, and doesn’t recall anyone at that meeting making such a suggestion:

My memory of that meeting, of course, is by no means the definitive record. But given the specific focus of my own participation in that meeting, it seems rather unlikely that I would have missed anyone’s suggestion that such a policy be implemented by unilateral action of the President. In fact, my comments at the meeting began with the specific warning that any new policies put in place by this administration would undoubtedly survive it, only to be abused by some succeeding administration, no matter what President Obama’s intentions in implementing them. So while I see the point in arguing that an executive order can be more easily rescinded, it also seems obvious that it can be reissued just as easily. Or more likely, that a new and more draconian one can be issued in its place, with President Obama’s serving as precedent. I doubt that would have escaped notice or comment.

An administration official emailed Marc Ambinder to walk the executive order story back. Waldman doesn’t find the denial compelling.

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Many, many things are curious here, including how much process the unilaterally created detention system would allow. Finn and Linzer rightfully observe that the logic here is the logic of the Bush administration. There’s not much administration effort, judging from the piece, put into explaining why a detainee can’t be charged with a crime. And then there’s this absolutely bizarre claim:

“Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order,” the official said. Such an order can be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should either be prosecuted or released.

What? What civil liberties organization actually encouraged the administration to set up a system of “prolonged detention” — the less euphemistic term would be indefinite detention — in the first place; let alone urged the administration to do it without congressional approval?

Update: Zach Roth at TPM reports that the Center for Constitutional Rights certainly doesn’t approve of the idea.

Update 2: CCR representatives say that in a recent White House meeting, they conveyed to administration officials that “any prolonged detention scheme was unacceptable, no matter how it was dressed.”

Similar sentiments come from the ACLU, whose executive director, Anthony Romero, has released this statement:

This is not change – this is more of the same. If President Obama issues an executive order authorizing indefinite detention, he’ll be repeating the same mistakes of George Bush, and his policies will be destined to fail as were his predecessor’s. How justice is served in America should not be an open question in a country where we have a rule of law and a time-tested criminal justice system. Throwing people into prison without charge, conviction or providing them with a trial is about as un-American as you can get. While President Obama might be experiencing difficulty with Congress when it comes to implementing his decision to close Guantánamo, the answer is not to issue an executive order authorizing a system which is unconstitutional and counter to the most fundamental American values.

However, Kate Martin of the Center for National Security Policy thinks that contrary to my insta-read above, the executive order reported in Linzer and Finn’s piece doesn’t sound like the Wittes proposal. She doesn’t have any knowledge about the order aside from what she’s read, but says, “If the administration issues an executive order like the one [Linzer and Finn] describe, it’ll be a major victory.” That’s because Martin thinks that established law holds that the administration doesn’t require any additional legal authorization to hold anyone captured on the battlefields of Afghanistan without charge until the end of hostilities — that comes from the September 2001 Authorization to Use Military Force, as does dispensation for the 9/11 plotters — but would need to charge or release any detainee picked up outside either Afghanistan or Iraq. Martin thinks the reported executive order might be the only thing standing in the way of an even broader congressional effort of the sort seen in the war supplemental that Daphne critiqued yesterday. Martin has expressed her organization’s longstanding perspective on detainee matters to the administration’s detentions task force.

Update 3: The above reference to Wittes was pretty poorly phrased. I should have written that it seemed like the administration may embrace his substantive proposals for detention. As it reads, my sentence implies that Wittes embraces an executive order as a vehicle to change the rules about detention, when his proposal is obviously a piece of legislation.

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The Lieberman-Graham Amendment, also known as The Detainee Photographic Records Protection Act, is strongly supported by President Obama. It would amend the Freedom of Information Act — the same one Obama promised to construe liberally in favor of releasing information — to allow the president to conceal the photos of detainee abuse that the administration has already been ordered to produce in a pending lawsuit brought by the American Civil Liberties Union.

Oddly, the Obama administration and Senate Democrats seem to have followed the advice of Andy McCarthy at National Review, who a few weeks ago specifically suggested that the administration need not follow the court order requiring release of the photos; Congress, with the White House’s support, could just amend FOIA or adopt a new law to allow Obama to conceal the photos, and avoid having to bother with the pesky federal court system, which so far hasn’t given the administration its way.

The only problem is, how is the Obama administration going to reconcile this move with the President’s eloquent promises on his first days in office?

Remember this Memorandum on Transparency and Open Government?

Government should be transparent.  Transparency promotes accountability and provides information for citizens about what their Government is doing. Information maintained by the Federal Government is a national asset. My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use.

Or this statement by Attorney General Eric Holder during his confirmation process?

I firmly believe that transparency is a key to good government.  Openness allows the public to have faith that its government obeys the law.

So isn’t it strange that the government, rather than appealing a court order pursuant to its rights under the law, now wants to defy the court by asking Congress simply to change the law?

I agree with Glenn Greenwald on this one:

If, as Obama claims, there are legitimate reasons to suppress these photos under FOIA’s exemptions (including its very broad national security exemptions), then the Supreme Court can reverse the two lower court rulings ordering disclosure — as Obama is asking it to do.  But there is no good reason to vest the Obama administration with the unilateral power to simply waive FOIA requirements simply because it loses in court and decides it doesn’t want to comply with court rulings and with current transparency laws.

And Nick Baumann at Mother Jones, who calls the photo suppression bill “an abomination that is reminiscent of the worst Bush-era excesses.”

It gives the executive branch the power to withhold an entire category of information from public scrutiny without any review. This law is Example A of the theory of the Presidency that says citizens should just trust the benevolent executive to do the right thing. Even in you oppose releasing some of the photos, I don’t see why you would want to give the White House the power to unilaterally decide what’s best. It says a lot about the Congress that members are willing to give Obama this kind of power. It says a lot about Obama that he supports this bill. Thank God for Barney Frank.

Well, except that late last week, Frank switched his vote.

In his recent speech at the National Archives, Obama said:

I ran for President promising transparency, and I meant what I said. That is why, whenever possible, we will make information available to the American people so that they can make informed judgments and hold us accountable. But I have never argued – and never will – that our most sensitive national security matters should be an open book. I will never abandon – and I will vigorously defend – the necessity of classification to defend our troops at war; to protect sources and methods; and to safeguard confidential actions that keep the American people safe. And so, whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions – by Congress or by the courts.

Now that the court has refused to give the president what he wants, he’s hoping Congress will. He’s won in the Senate already. Let’s see if the House Democrats will stand their ground on this one.

Noting that it’s the role of the court — not the executive — to decide which unclassified information can be filed under seal, and that public access to detainee information “plays a significant positive role in the functioning” of habeas corpus proceedings, Judge Thomas Hogan of the federal district court in Washington ruled that the government must make publicly available the factual basis for holding each prisoner. For those facts the government still insists are too sensitive to produce, the government must file with the court under seal a document explaining why it wants to conceal each particular fact.

From Judge Hogan’s order:

The government’s motion attempts to usurp the Court’s discretion to seal judicial records. Moreover, the public has a limited First Amendment and common law right to access the unclassified factual returns. For each petitioner, the government must either publicly file a factual return or file under seal a marked copy of the unclassified factual return highlighting the specific information for which it seeks protected status.