The White House was also dissatisfied with Craig’s handling of political appointments, believing that Craig should have spent more time working with the Justice Department and with Congress to force through some of the president’s most eagerly awaited principals, like Dawn Johnsen, whose nomination to be head of the Justice Department’s Office of Legal Counsel still languishes. The issue of nominations is especially sensitive for the president, a constitutional law lecturer in his former life.

My colleague Daphne Eviatar has reported extensively on the parliamentary machinations keeping Johnsen bottled up in the Senate.

The White House’s top lawyer is returning to private practice and being replaced by a longtime adviser to Barack Obama.

White House counsel Greg Craig, who’s leaving in early January, has been the subject of questions about his future since late summer. Those questions centered on concerns that Obama’s promise to close the Guantanamo Bay military prison by January had gone awry under Craig’s leadership.

According to the AP, Craig will be replaced by Bob Bauer, former general counsel to Obama’s presidential campaign.

“I have no plans to leave whatsoever,” Craig told David Ingram at the National Law Journal. Describing his relationship with President Obama as “excellent,” Craig dismissed the recent reports, which included one from The Washington Post and ProPublica in late September that three administration officials said that Craig would be leaving his job soon.

Even if he has no interest in leaving, Craig clearly has some opponents within the administration, since they’ve been leaking the idea to the press for months now. In early August, The Wall Street Journal reported that administration officials were “holding discussions” that could result in Craig’s departure.

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.

I don’t know and the rest of this post is irresponsible speculation of the sort that Jim Messina would condemn. But look at the paper’s body of evidence for why Craig has enemies:

He mishandled the closure of Guantanamo Bay;

He argued for the unredacted release of the Office of Legal Counsel’s 2002 and 2005 legal justifications for the CIA’s “enhanced interrogation regime”;

He played some role in the administration’s plans for preventive detention (this is pretty much a vague and undeveloped point in the piece)

So whose ox is being gored here? Marcy Wheeler, no fan of Craig’s, notes that in these cases “he supported the right decisions on policies, but the political people in the White House mismanaged implementing those decisions.” Maybe. A complimentary explanation is that on the torture memos disclosures, Craig and Attorney General Eric Holder angered the leadership of the intelligence community:  Director of National Intelligence Dennis Blair and CIA Director Leon Panetta, CIA Deputy Director Steve Kappes and White House counterterrorism chief John Brennan. They might see their chance to build an anti-Craig constituency with a White House political team that wants a scapegoat for the Guantanamo failure. A caveat is that it’s doubtful to me that Chief of Staff Rahm Emanuel would be one of the people his deputy denounces on the record as “pointing fingers in an attempt to promote their own status.”

That said: the Guantanamo shutdown is a really unforced error. An anonymous Hill person is quoted in the piece as saying a virtue of Craig’s is that he “understands Congress very well.” Really? I’ve heard months of gripes from Hill staffers, particularly but not exclusively on the Democratic side, that the White House had cut Congress entirely out of the loop on Guantanamo. Democrats didn’t know what they were supposed to defend, and as a result weren’t inclined to defend much of anything. On top of that, as a matter of strategy, by not picking a specific state to send the Guantanamo detainees, every senator had an incentive to raise not-in-my-backyard concerns. Opposition predictably coalesced to the point where 90 senators in May voted to cut funding out of the war supplemental for closing the facility. What would misunderstanding Congress look like?

Finally, to quote Omar Little, you come at the king, you best not miss. Craig is closer to President Obama than either Blair or Panetta. Possibly not as close as Brennan. (And Brennan, by the way, is going to give his first big counterterrorism speech at CSIS on Thursday, Marc Ambinder reports.) I don’t know; I’m not a White House Kremlinologist. But now that this is in the media, whoever’s out to get Craig had better be assured of success or be prepared for the consequences.

Some detainees are so dangerous, he said, that “they may not be able to be tried for that reason, [and] remain dangerous, and for that reason we need to focus on [them]. If we are to maintain that … we need to establish at least some kind of reporting mechanism to the federal courts.” It’s hard to see how this is much different than indefinite detention without charge, and it calls Panetta’s commitment to the rule of law into question.

What sort of process would be established to adjudicate detainee guilt or innocence in such a case? This sounds a lot less process-intensive than national security courts. It’ll be interesting to see what the Obama administration’s more progressive legal/security officials — Dawn Johnsen and Marty Lederman at the Justice Department, Greg Craig and Mary DeRosa in the White House; and Jeh Charles Johnson at the Defense Department — make of this.

Fielding, citing a Department of Justice memo issued by the now much-discredited Office of Legal Counsel in 2007, informed Luskin that the department had decided that Rove, as a former adviser to the president, has “absolute immunity” from testifying to Congress about anything he did in his role as presidential adviser.

Never mind that, as I reported earlier, Judge John Bates of the U.S. District Court in Washington, D.C., strongly disagreed, saying the Justice Department’s case for “absolute immunity” was wholly unfounded in an earlier case in which former White House counsel Harriet Miers was subpoenaed to testify. As Bates put it, the Justice Department’s assertion of absolute immunity was “entirely unsupported by existing case law.” (Miers was issued a contempt citation, though it was never enforced.)

But as we already know, the Bush OLC has its own, rather unusual, ways of interpreting the law — principally, to favor the president’s desired outcome. Fielding apparently was instructing Luskin — and thereby Rove — that Bush would continue to stick to that view of the law even after he was no longer president.

So who’s in charge now?

“We’re in uncharted territory,” Luskin told Newsweek when asked whether former the former president can still control whether his former aide testifies even after the president leaves office.

Luskin has reportedly asked President Obama’s new White House counsel, Greg Craig, for his opinion on the matter. Craig hasn’t yet responded. But as I noted before, this may be the first big test of the new president’s view of the reach of executive privilege — and the sincerity of his pledges to lift the Bush-era veil of secrecy that shrouded the White House for the past eight years.

Remember that in former President George W. Bush’s first term, his crony and one-time White House counsel Alberto Gonzales — a man out of his depth on constitutional issues — was a willing partner of former Vice President Dick Cheney’s top lawyer, David Addington, and the Justice Department’s John Yoo, in asserting vast presidential authorities on surveillance, interrogation and detention. The National Security Council’s general counsel, John Bellinger, was simply excluded or railroaded in many of these cases, according to Bart Gellman and Jo Becker.

Obama’s White House counsel is another trusted aide, Greg Craig. But the similarities to Gonzales end there.

Craig was an aide to President Clinton, helping direct the team combating the impeachment proceedings, and a senior State Department official during Clinton’s second term. (He was one of the earliest Clintonistas to support Obama in the primaries.) As White House counsel, Craig appears to have consolidated a fair amount of power in his office. This morning, the White House announced 31 deputies and aides who’ll be working for Craig. One announcement in particular stands out:

Mary DeRosa

The President has named Mary DeRosa to be Deputy Counsel to the President for National Security Affairs and Legal Adviser to the National Security Council.

So in the Obama White House, the legal counsel to the National Security Council will report to the White House counsel. It’s probably too early to tell the implications of this, but it stands to reason that Craig’s positions on torture will carry impressive bureaucratic heft. Yes, that’s not saying a whole lot, but it’s something to watch for in the coming four years.

The CIA, though? Not so much.

Across the Potomac River, at the C.I.A.’s headquarters in Langley, Virginia, however, there was considerably less jubilation. Top C.I.A. officials have argued for years that so-called “enhanced” interrogation techniques have yielded life-saving intelligence breakthroughs. “They disagree in some respect,” admitted Craig. Among the hard questions Obama left open, in fact, is whether the C.I.A. will have to follow the same interrogation rules as the military. While the President has clearly put an end to cruel tactics, Craig said that Obama “is somewhat sympathetic to the spies’ argument that their mission and circumstances are different.”

Is that hard question really that open, though? The executive order on interrogation talks about a uniform government-wide standard on interrogation. Additionally, though, Mark Hosenball at Newsweek writes that there’s confusion over whether Craig told the Senate Select Intelligence Committee that Obama can exempt himself from his executive orders — that is, order an off-the-books torture session. (As opposed to going Jack Bauer on some hapless detainee himself.)

If this question is in fact open, it would contradict the central promise of the executive orders, as well as an assurance that Director of National Intelligence-nominee Dennis Blair made to the Senate intelligence committee during his confirmation hearing last week. Clearly, then, this is something to watch for as the cabinet-level policy review takes shape.

Tomorrow is Leon Panetta’s confirmation hearing to become CIA director. Watch for whether he thinks there should be one government-wide uniform standard on interrogations — and, if not, what the arguments against it are.

I think the Obama administration is not likely to cede that authority back to the Congress.

– Dick Cheney, Dec. 15, 2008

What the cynics fail to understand is that the ground has shifted beneath them.

– Barack Obama, Jan. 20, 2009

I was talking with a reporter friend last night about President Barack Obama’s executive orders on detentions, interrogations and Guantanamo. We were simply amazed by how far Obama went in repudiating the Bush era — the CIA secret prisons: closed; extraordinary rendition: ended; Geneva Common Article 3: the “minimum baseline” for detainee treatment; Guantanamo: to be closed. If you’re former Vice President Dick Cheney, and you view these orders alongside Obama’s executive order on governmental transparency, you think right now the country has just lost its mind.

But it needs to be remembered, as Daphne suggested yesterday, that the orders aren’t the end of the issue. They put in place a process for repudiating the Bush administration’s apparatus of torture and detention. The journey, in other words, isn’t over. And there are several things to watch for as the process unfolds by which we can judge how thoroughly the new Obama administration legal and policy architecture lives up to the promise of the executive orders. Here are a few questions, as best as I can determine them.

What’s kept classified in the government-wide field manual on interrogation? This was an issue in yesterday’s confirmation hearing with ret. Adm. Dennis Blair, Obama’s nominee to become director of national intelligence. After affirming that he agrees with the executive order’s mandate on harmonizing all interrogations in line with the Geneva Conventions-compliant Army field manual, Blair said he’d support keeping some specifics about the implementation of the Geneva-compliant techniques classified, although he promised that that wouldn’t be a backdoor for the re-introduction of torture techniques. (“Not saying ‘Here’s the document, and then, just kidding, here’s the real stuff.”)

But implementation is important stuff. At Emptywheel, bmaz has been sounding the alarm that not everything in the 2006 rewrite of the Army field manual on interrogations is complaint with Geneva — in particular, a ten-page appendix known as Appendix M appears to go beyond the Geneva-based restrictions of the original field manual. This is something to watch for in the review. If the review merely assumes that everything in the field manual is Geneva-compliant, it may end up reaffirming a codification of torture. And beyond that, guidelines for performing, say, the field manual technique of “Pride And Ego Down” (that link goes to a section of the old, pre-2006 rewrite field manual) need to ensure that things don’t get out of hand in the interrogation chamber.

What human-rights promises will the U.S. get from foreign governments? Part of the task force’s mandate is to look at rendition. Rendition is the extra-judiciary transfer of a person in custody, different from post-conviction extradition, from one government to another. Under the Clinton and Bush administrations, that became expanded to a process known as extraordinary rendition, whereby transfer of detainees occurs to governments known to use torture. Typically, that process involves getting an assurance that there won’t be any torture, but in practice, it’s a cynical wink-and-nod maneuver to see no evil. The task force is mandated to review:

the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.

White House officials said yesterday that while the original sense of the term ‘rendition’ may continue, the second won’t. “There is not going to be rendition to any country that engages in torture,” one official at a background briefing said.

But how will that be determined? Poland, we know now, hosted some of the CIA’s secret detention facilities, where we know detainees were tortured. But the State Dept., even through that period, said that Poland didn’t engage in torture. One of the president’s most important counterterrorism advisers, John Brennan, has called rendition “absolutely vital.” What will count as a determination that a country doesn’t torture and is eligible to receive prisoners?

How long can the CIA hold detainees? The order is clear that the CIA is out of the secret-prisons business. But it does say that the prohibitions “do not refer to facilities used only to hold people on a short-term, transitory basis.” Often, the CIA will be in a position of receiving detainees from partner intelligence services – cough Pakistan cough — before either detaining them itself or transfering them to military custody. The exemption here is probably designed to cover that, recognizing the reality that there will be times that CIA will simply have to have custody of detainees.

But for how long? What’s “short-term”? A few days? A few hours? A few weeks? The order further says that all U.S. agents must give the Red Cross “notification of, and timely access to, any individual detained.” But it’s hard to imagine a circumstance in which the CIA will give the Red Cross access to just-captured detainees. During at least some period of time, these captures will be so-called “ghost detainees,” as a practical measure.  Additionally — although, if interrogations are harmonized across the government in line with Geneva, this may not be such an issue — what will happen to those detainees taken for interrogation in “temporary” CIA custody when no one is looking?

So those are some initial questions to watch for. But there’s something else to consider. Let’s assume there are some people in the Obama administration who want to, for whatever reason, roll back the promises made in the executive order. They’ve got a hard bureaucratic road to hoe. The White House counsel Greg Craig is pretty hawkish against torture. The heads of the Justice Department’s Office of Legal Counsel, Dawn Johnsen and Marty Lederman, are too. As is the new Pentagon general counsel, Jeh Charles Johnsen. Positive signs on ending torture have come from the Attorney General-designate Eric Holder; the soon-to-be-heads of the intelligence community, Blair and Leon Panetta; and, of course, Obama himself. That’s not to say bureaucratic obstacles can’t be overcome. But it is to say that this is quite some firewall.

So I’ll be watching this stuff with vigilance. (Hold me to that.) But the early indications are positive. Obama just might have meant what he said, to Cheney’s horror, in his inaugural.