I guess Thiessen didn’t read the same CIA inspector general report that so many of us have been scrutinizing in the last few days. That report repeatedly made the point that the CIA guidelines governing what was permissible or impermissible interrogation conduct were so unclear that, while “an improvement over the absence of such [Department of Central Intelligence] Guidelines in the past, they still leave substantial room for misinterpretation and do not cover all Agency detention and interrogation activities.”

Sure, lawyers and senior officials were involved in interrogations every step of the way, which is why their actions ought to be scrutinized in any criminal investigation. But unfortunately, that did not lead CIA interrogators to abide by the law.

Take, for example, the fact that the redacted information in the reports we now have been told included information about detainees who were brutally killed in custody. The supposedly “safe” techniques approved by CIA officials and Justice Department lawyers weren’t supposed to lead to that, but they did.

And then there’s the problem that of 100 supposedly high-level al-Qaeda suspects in CIA custody, a bunch of them — we don’t know how many — were simply “lost.” That’s right, this “well-run, highly disciplined” program that had custody of 100 people now can’t account for what happened to some untold number of them. Did they escape? Were they killed and buried to hide the evidence? We have no idea — and apparently the CIA Inspector General wasn’t able to find out, either.

There are all sorts of reports today about the “legal hurdles and complex political dynamics”, as Mark Mazzetti and David Johnston at The New York Times put it,  that will stand in the way of prosecuting these cases. Establishing criminal intent and digging up evidence in faraway places of crimes that occurred years ago is all very difficult, say the experts. In fact, those are the very reasons the Bush administration’s Justice Department gave Sen. Dick Durbin (D-Ill.) years ago when he pressed former attorneys general about why they hadn’t prosecuted the deaths of detainees in U.S. custody: “insufficient evidence of criminal conduct, insufficient evidence of the subject’s involvement, insufficient evidence of criminal intent, and low probability of conviction.”

That didn’t ring true to current Attorney General Eric Holder when he read the CIA report, though, and it didn’t sound ethical to the Office of Professional Responsibility inside the Justice Department that has recommended re-opening these cases for investigation. The OPR’s analysis, in fact, suggests that it was the Eastern District of Virginia, then under the direction U.S. Attorney Paul McNulty, who appeared to be playing politics with what should have been a straightforward prosecution.

McNulty,  you may recall, is the U.S. attorney who was elevated to deputy attorney general and went on to lie to Congress when he said the White House played almost no role in the controversial firing of nine U.S. attorneys on what appears to have been largely political grounds. That was later contradicted by subsequent testimony and documents.

Thiessen, in the Wall Street Journal, meanwhile, writes that it was “career prosecutors” who decided not to pursue the cases in the Virginia office. Or, it was the U.S. attorney whose career was elevated for making that politically astute decision and then resigned in disgrace a few years later.

The concern about opening this investigation is the politics. Is it unseemly for one attorney general to re-visit the work of a previous one? And will it be politically embarrassing to the Department of Justice and the CIA if it turns out that prosecutors refused to prosecute violations of the federal anti-torture statute by CIA officials? And, as so many commentators are asking this week, won’t this all be a big unwelcome distraction for President Obama from passing national health care legislation?

The late Sen. Edward Kennedy (D-Mass.), one of the great champions of universal health care who is being mourned today, surely would not have seen it that way. Two years ago, he stood up to say clearly that “waterboarding is torture” and opposed the nomination of Attorney General Michael Mukasey because Mukasey refused to admit that. Kennedy also urged the Senate to pass legislation explicitly stating that waterboarding is a war crime. Politics prevailed, and his colleagues rejected the idea.

But Kennedy would probably not suggest that we ought to sacrifice justice to achieve his dream of universal health care. One has nothing to do with the other, except in the sense that, as Kennedy believed, both ought to be basic rights in a civilized society.

Rather than simply follow precedent, as is the role of an appellate court judge, he said, “Judge Sotomayor will help overturn the very precedents that today bind her” on the court of appeals. “The judicial position she will take on the Supreme Court will be very different than the position she has on the Second Circuit.” Therefore, he argued, ALL of her statements — including her statements made years ago about being a “wise Latina” who would make better decisions than would a white man and noting that courts of appeals “are where the law is made” — statements he and conservative Republicans have been emphasizing for months now — must be considered.

Although “we are urged to ignore her statements and focus only on her judicial decisions,” Hatch added, “We show respect to her by taking her entire record seriously.”

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To overcome extremism, we must also be vigilant in upholding the values our troops defend – because there is no force in the world more powerful than the example of America. That is why I have ordered the closing of the detention center at Guantanamo Bay, and will seek swift and certain justice for captured terrorists – because living our values doesn’t make us weaker, it makes us safer and it makes us stronger.  And that is why I can stand here tonight and say without exception or equivocation that the United States of America does not torture.

All the right sentiments. As I noted yesterday, real trials for captured terrorists – and releasing those we captured who it turns out aren’t really terrorists after all – can’t happen soon enough.

Still, there was one big, though not surprising, omission:  while he re-iterated his pledge that America does not torture, Obama carefully left out any mention of bringing to justice those who did.

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.

WASHINGTON — Alberto Gonzales, who has kept a low profile since resigning as attorney general nearly 16 months ago, said he is writing a book to set the record straight about his controversial tenure as a senior official in the Bush administration.

It’s a miracle! Though he has not yet found a publisher, Gonzales has found a cure for the debilitating, buffoonish strain of amnesia he contracted while hard at work overseeing the politicization of the Justice Department and drafting memos to justify torture (his role in which, according to the Journal, Gonzales now downplays).

It’s called unemployment.

The Harvard Law School graduate, onetime corporate lawyer and Texas judge also hasn’t been able to land a job. He has delivered a few paid speeches, done some mediation work and plans to do some arbitration, but said law firms have been “skittish” about hiring him.

Gee, I can’t imagine why.

One has to wonder how much Gonzales can really say about his various controversies without possibly opening himself up to perjury charges after he denied having any recollection of much of his tenure as attorney general during congressional hearings. He is a lawyer, after all, so we can probably expect another boring, self-serving book.

Also worth noting: During his interview with the Journal, Gonzales took the opportunity to pity himself.

Mr. Gonzales said that “for some reason, I am portrayed as the one who is evil in formulating policies that people disagree with. I consider myself a casualty, one of the many casualties of the war on terror.”

If so, that’s probably one casualty we can all live with.