Here’s what Jameel Jaffer, Director of the American Civil Liberties Union National Security Project, which has been fighting for release of those photos, had to say about the vote:

We are deeply disappointed that the House voted to give the Defense Department the authority to hide evidence of its own misconduct, and we hope the Senate will not follow suit. If this bill does become law, the Secretary of Defense should not invoke it. Instead, Secretary Gates should be guided by the importance of transparency to the democratic process, the extraordinary importance of these photos to the ongoing debate about the treatment of prisoners and the likelihood that the suppression of these photos will ultimately be far more damaging to national security than their disclosure would be. The last administration’s decision to endorse torture undermined the United States’ moral authority and compromised its security. The failure of the current administration to fully confront the abuses of the last administration will only compound these harms.

You can find the roll call here.

“The CIA’s justification for withholding the documents is entirely incompatible with the Obama administration’s stated commitment to ending torture and restoring governmental transparency. On the one hand, President Obama has publicly recognized that torture undermines the rule of law and America’s standing in the world, but on the other, the CIA continues to argue in court that it cannot disclose information about its torture techniques because it would jeopardize the CIA’s interrogation program,” said Jameel Jaffer, Director of the ACLU National Security Project. “The CIA’s arguments are utterly disconnected from the Obama administration’s stated positions. The agency seems to be disregarding altogether the important policy changes that President Obama announced immediately after he took office.”

What’s more, the documents in question all support already-disclosed information like the 2004 CIA inspector general’s report on torture or the Office of Legal Counsel memos authorizing the “enhanced interrogation” program, making it curious that the administration would object to further disclosures. The statement continues:

“Given the vast amount of evidence that the U.S. torture program was widespread and systemic, it’s disappointing that the government continues to withhold these vital documents that would fill in the remaining gaps in the public record,” said Alex Abdo, a legal fellow with the ACLU’s National Security Project. “The Obama administration must fulfill its commitment to transparency and release all crucial documents that would shed further light on the origins and scope of the Bush administration’s torture program. The American public has a right to know the full truth about the torture that was committed in its name.”

“Continuing to detain a person indefinitely without charge or trial for a crime for which he has been acquitted is absurd and unconstitutional. If the government has sufficient evidence to warrant criminal charges against prisoners held at Guantánamo, it should file those charges and prosecute the prisoners in ordinary federal courts. But the government should not be holding prisoners indefinitely without charge or trial, and it should certainly not be holding show trials from which guilty verdicts will be honored but acquittals will be ignored. The suggestion that the government can protect the country only by disregarding the Constitution is an extremely dangerous one that should be unequivocally rejected.”

Now, says Jameel Jaffer, the ACLU’s national-security director, all the organization can do is wait to hear what Hellerstein rules. The holiday weekend essentially called a pause in court business for Hellerstein. Jaffer says the ACLU hopes “to hear within a day or two” from Hellerstein about what the judge makes of the Justice Department request, and will proceed from there.

“I don’t know how,” Jaffer said. “It seemed like an odd thing for him to say.” He had no idea what, if any, photographs the president saw. Nor does the ACLU know what exactly the photographs detail. Its FOIA request was for information relevant to the abuse of prisoners, and extends beyond the Abu Ghraib abuse with which everyone’s familiar. “Beyond that, we don’t know,” Jaffer said.

“We’re asking [for the photos] because we believe they would add to the historical record, provide further evidence that the abuse was systematic rather than aberrational, and underscore the need to hold senior officials accountable,” he added.

The short answer, according to Jameel Jaffer, director of the ACLU’s national security project, is that the memos released last week were part of a “universe” of requested memos listed in an ACLU FOIA petition whose scope “ends in 2005,” putting our memo out of play. That scope was agreed to by the government and the ACLU after years of litigation. “There are still dozens of memos responsive to our original FOIA that they’ve not released,” Jaffer said.

Still, the ACLU in December filed another FOIA request to get up to date with what the Bush administration authorized the CIA and the Defense Department to do to detainees after 9/11. The organization asked for some specific memos, but also phrased its request for “catch-all” material, Jaffer said, “broad enough to encompass the memo you reported on.”

Jaffer added that he didn’t know about the 2007 OLC memo before TWI broke the story of its existence. “It sounds like this memo is central to the narrative,” he said. “The question of what methods the CIA believed to be permissible is a question we still only have a partial answer to. We know what [the administation] authorized in 2002, 2003 and 2005, but there’s still a lot of information about what happened to CIA detainees after 2005 [that isn't clear] And it sounds like this memo sheds a good deal of light on that question.”

In his latest ruling on the matter, U.S. District Court Judge Alvin Hellerstein in New York had given the Justice Department an extension until Thursday to disclose the memos or explain its refusal. The ACLU yesterday said that it agreed to the government’s request to extend the deadline in exchange for commitments by the government that high-level officials will consider releasing not only the Bradbury memos written in May 2005, but also an August 2002 memo written by Jay S. Bybee, then head of OLC. The Bush administration had refused to produce the Bybee memo.

“Collectively, these memos supplied the framework for an interrogation program that permitted the most barbaric forms of abuse, violated domestic and international law, alienated America’s allies and yielded information that was both unreliable and unusable in court,” said Jameel Jaffer, Director of the ACLU National Security Project, in a statement. “While we are disappointed that the Bradbury memos were not released today, we are optimistic that the extension will result in the release of information that would not otherwise have been available to the public.”

The release of these memos has been highly anticipated, in part because if they provide legal justifications for torture and other plainly illegal conduct, they could be used in future prosecutions of former Bush administration officials to claim that the Justice Department’s Office of Legal Counsel was used by senior Bush officials to provide legal cover for unlawful government conduct.

A “commission of inquiry,” proposed by Sen. Patrick Leahy (D-Vt.) and seen by many as a possible alternative to prosecution, is now considered unlikely to gain the necessary Congressional support.

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Although the Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and seizures on U.S. soil, Yoo concluded that “[a]lthough the situation is novel … we think that the better view is that the Fourth Amendment would not apply in these circumstances. Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probably cause or to obtain a warrant.”

This memo appears to have formed the legal basis for the Bush administration’s domestic warrantless wiretapping program, which at least one federal judge has since concluded was unconstitutional.

Jameel Jaffer, Director of the ACLU National Security Project, reads it as extending beyond the Fourth Amendment, however.

“This takes the position that the Bill of Rights does not constrain the military in its operations inside the United States,” Jaffer told me this afternoon. “The president can disregard the constitution during wartime, not just on foreign battlefields, but inside the United States.  We had not seen a memo saying that before.”

Of the nine memos released today, at least two — this October one written by Yoo, and another written by Bybee regarding extraordinary rendition — were responsive to earlier ACLU requests for OLC memos in the context of ongoing FOIA cases.

But many more memos the ACLU has requested still have not been released.

“There are still dozens of memos being withheld,” said Jaffer. “We’re hoping that this is a first installment.”

While the memos reveal the legal groundwork that was laid for the Bush administration’s conduct in its “war on terror”, much of which appears to have been illegal, they still don’t answer the critical question that many Bush critics want to know.

“The obvious question that’s raised by these memos is, what conduct did the administration authorize on the basis of the legal reasoning in these memos?” Jaffer said.  “That’s a question that has not been adequately answered.”

Update: After further reading of this memo, I have to update it with some more astounding quotes from John Yoo, who insists that not only the Fourth Amendment, but the First Amendment right to free speech may be overridden by the President in wartime:

“First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” writes Yoo.  Yoo then reaches back to a 1931 Supreme Court case to support this idea, which said that “’When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.’ . . . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.”

Now, no one today would argue that an American has a right to publish secret details about U.S. troop movements in Iraq, either; but the First Amendment already accounts for those sorts of exigencies.  For John Yoo to take from that that the President may actually override free speech and press rights that are guaranteed by the First Amendment goes beyond stretching it — it’s just a blatant, and deliberate, misreading of the law.  After all, John Yoo — Harvard and Yale grad, Berkeley Law prof — is no dummy.