From the report itself, John Yoo’s Office of Legal Counsel memo — and the lightning-fast reporting of Spencer Ackerman, Marc Ambinder and others on Friday — we now know that President George W. Bush and Vice President Dick Cheney, aware that ignoring the Foreign Intelligence Surveillance Act and the Fourth Amendment to the U.S. Constitution might come back to bite them later, sought the drafting of a legal opinion that would approve the president’s secret surveillance program and shield them from later attack.

The fact that the White House sought the assistance of Deputy Assistant Attorney General John Yoo in the OLC, though is itself evidence that the White House was trying to get around, rather than comply with, the law.

As I’ve noted before, legal memos justifying an unreasonable or inaccurate legal position don’t necessarily provide a “golden shield” for the executive.

Yoo, after all, was known when he was hired as the Berkeley law professor and staunch Federalist Society member who held theories on executive power that were far outside the legal mainstream. And the memos and academic analyses he then proceeded to write were so extreme and so mischaracterized law and history in an effort to reconcile conservative “originalist” principles with his own aggressive view of an all-powerful president as Commander-in-Chief that they’ve been characterized as an “outrageous theory of presidental dictatorship” by Yale University law professor Jack Balkin and as “simply hooey” by Marty Lederman at Georgetown (now in the Office of Legal Counsel in the Obama administration).

The inspectors general report details how Yoo and the administration ignored parts of the FISA law that conflicted with his theory, for example, and made the outrageous argument that a warrantless search doesn’t violate the Fourth Amendment’s prohibition on “unreasonable” searches and seizures because it can’t be “unreasonable” for the president to authorize it in wartime. Why it’s “reasonable” to prevent even secret judicial review of such searches is never explained.

For an academic to hold extreme views of executive power, of course, is arguably a matter of academic freedom, and even a form of creative theorizing that one might admire. (Although some of Yoo’s Berkeley colleagues, such as economist Brad DeLong, among others, have described his theories as reaching so far beyond the bounds of creative academic theorizing as to be simply dishonest and undeserving of that protection.)

But Yoo’s memos at OLC were not part of an academic exercise; they were making policy. Setting aside for a moment the potential culpability of Yoo himself, the more important point here is that, as the inspectors general report makes clear, the White House specifically sought him out and excluded his superiors, ignoring the usual chain of command in the Justice Department, apparently because they knew that John Yoo would give them the legal opinions that they wanted to hear.

That is not the purpose of the Office of Legal Counsel, as Dawn Johnsen, the Obama nominee to head that office has repeatedly made clear, along with more than a dozen other alumni of that office.

As Johnsen wrote in a law review article describing the ten “Guidelines” that should govern the Office of Legal Counsel: “OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies … In short, OLC must be prepared to say no to the President.”

That the president and vice president apparently chose someone who they knew in advance would not say no to the president is more than an abuse of that legal office; it strongly suggests an intentional and unlawful abuse of executive power.

The latest news accounts that Attorney General Eric Holder is leaning toward appointing an independent prosecutor suggest he may finally be starting to reach the same conclusion.

Will the administration be more swayed by an author of books about fighting terrorism than by its own deputy attorney general at the Office of Legal Counsel, Marty Lederman? The choice is stark, and if NPR’s Ari Shapiro is correct that Wittes is planning to reveal proposed legislation on the matter today, and that he has the ear of the Obama administration, then it may ultimately come down to whose view the administration credits more.

Wittes has no formal legal training and has proposed a potentially unconstitutional system of indefinite detention of terror suspects without trial; Lederman is an esteemed constitutional law professor at Georgetown University with eight years of prior experience advising the executive branch from the Justice Department — and he has previously expressed serious concerns about preventive detention.

As Spencer pointed out, before his appointment to the Office of Legal Counsel in the Obama administration, Lederman, in an online colloquy with Wittes, specifically denounced the idea of preventive detention based on the president’s determination of who is dangerous.

“’Dangerousness,’ as such — particularly dangerousness as evidenced primarily by one’s ‘deeply held beliefs’ — is not a constitutionally valid ground, standing alone, to indefinitely incarcerate persons without the protections of a criminal trial,” he wrote in Opinio Juris. “Indeed, even if the dangerousness is demonstrated by past criminal conduct, that is not a permissible ground for noncriminal detention.” He continued that the Supreme Court has repeatedly held that deterrence of dangerous people “is a function ‘properly … of criminal law, not civil commitment.’”

Wittes may have a very “pragmatic approach to fighting terrorism,” as NPR describes it. (He’s also in the past proposed a system of “national security courts” that would suspend some of the usual criminal justice procedures — which sounds a lot like the new Obama military commissions proposal.) But it’s worth recalling that we’re in this situation to begin with because the Bush administration, dominated by non-lawyers, had insufficient respect for constitutional parameters.

This situation may be partly due to the lack of leadership in the OLC: Republicans have stalled the confirmation of Dawn Johnsen, President Obama’s nominee to head the office, for months now. That may be giving outsiders more say in the administration’s plans than they would ordinarily have.

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Before Marty Lederman became deputy assistant attorney general for the OLC, he was a prolific blogger and Bush-administration critic (and before that, an OLC attorney during the late Clinton and early Bush years). Here, for instance, is an Opinio Juris colloquy with the Brookings Institution’s Benjamin Wittes about various detention issues. Wittes argued that Congress should “treat these detentions openly and candidly for what they are: preventive incarcerations designed to keep extremely dangerous individuals from acting on their deeply held murderous beliefs and instincts,” calling preventive detentions “a psychological Rubicon we simply need to cross.”

Lederman objected:

Sorry, but I’m staying on this (constitutional) side of that line. “Dangerousness,” as such — particularly dangerousness as evidenced primarily by one’s “deeply held beliefs” — is not a constitutionally valid ground, standing alone, to indefinitely incarcerate persons without the protections of a criminal trial. Indeed, even if the dangerousness is demonstrated by past criminal conduct, that is not a permissible ground for noncriminal detention. “General deterrence” of dangerous persons, the Court has repeatedly held, is a function “properly . . . of criminal law, not civil commitment.” (Kansas v. Crane.)

Now, this isn’t a direct contradiction of Obama’s approach to preventive detention, since he hasn’t announced — or, apparently, even decided — what that approach is. And reading through Lederman’s post, he’s arguing that Wittes’ position is overbroad when considering restrictions that various judges have placed on the basis for detention. But the argument he presents is certainly in tension with the general idea of preventive detention, since all preventive detention is predicated on the idea of unprosecutable “dangerousness,” which Lederman rejects as a “constitutionally valid ground” for “noncriminal detention.”

We don’t yet know how Obama will define the category for eligibility into his preventive detention system. Could American citizens fall into that category? We don’t know. Obama gave as examples of possible preventive-detention targets “people who’ve received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.”

One of Daphne’s posts earlier this week quoted an Obama Justice Department filing further specifying the category:

“persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001?; “persons who harbored those responsible for those attacks; “and “persons who were part of, or substantially supported, Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”

But a federal judge rejected that as overbroad as well. Accordingly, it’s unclear how federal judges will find any grounds for indefinite preventive detention to be constitutional. Lederman’s post, written long before he went into the administration, provides, at least, a legal foundation to ask whether it’s worth trying to test judges’ patience in the first place.

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.

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.