As I wrote when the administration first announced it would stop using the term “enemy combatant” in a late Friday afternoon filing in federal court, the Obama Justice Department, while discarding the old terminology and giving a nod to the legitimacy of international law and the role of Congress, basically held on to much the same right of indefinite detention that the Bush administration had pronounced.  Sure, now the president would have to believe that the detainees had a “substantial” connection to al-Qaeda or the Taliban, but the government’s brief provided no definition of “substantial,” and surely Bush officials would have claimed that all those prisoners — “the worst of the worst” as they were fond of calling them (and former Vice President Dick Cheney still does) — were “substantially” assisting al-Qaeda or the Taliban in one way or another.

As Feldman points out, the key will be how the Obama Justice Department starts applying this “new” non-enemy combatant category of detainee when it comes to deciding what to do with these prisoners.

If the new legal arguments actually affect who goes free and who stays in custody, then they will amount to meaningful change. Without real-world effects, though, even the most elegant new legal arguments are nothing but words.

Absolutely.  But Feldman refers only to the 241 prisoners still held at Guantanamo Bay.  There’s also another 600 prisoners who were deemed “enemy combatants” by the Bush administration that are being held at the American detention facility at Bagram air base in Afghanistan. Recall that the Obama administration recently insisted, like the Bush administration, that those detainees do not even have the right to habeas corpus — that is, to challenge their detention in a U.S. court. And the new administration is still hiding critical information about who is being held at the base — which is directly relevant to determining their legal rights.

The Obama administration has surely already proved itself more adept at using legal language to justify its detention policies. As Feldman points out, these were policies created by the last administration and the Obama team is now stuck trying  to deal with the mess they were bequeathed, without letting dangerous people go free. The new administration is also under serious pressure from a host of Republicans who, apparently eager to undermine Obama’s efforts, are loudly proclaiming that closing the Guantanamo prison is a “dangerous” idea.

Still, Obama promised a return to respect for the rule of law, not just in word but in deed. As long as potentially innocent men remain imprisoned without charge or trial — and in the case of Bagram, without the right to challenge their detention or even speak to a lawyer — then the new administration will not have followed through on its promises.

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.

In their piece, reporters Karen DeYoung and Peter Finn report that the Bush administration’s files on these prisoners, some picked up six or seven years ago, are a complete mess.

A senior Obama administration official said that information on individual prisoners is “scattered throughout the executive branch” — presumably sitting in file cabinets somewhere among the records of the Defense Department, Department of Homeland Security, CIA and maybe even the FBI.

Although President Obama signed an executive order Thursday to close the Guantanamo Bay prison within one year, the difficulty of tracking down information about the 245 detainees still imprisoned there is sure to pose a major obstacle.

According to The Post, “several former Bush administration officials agreed that the files are incomplete and that no single government entity was charged with pulling together all the facts and the range of options for each prisoner.”

None of this will come as a surprise to lawyers defending prisoners at Guantanamo Bay, who’ve been seeking access to these files for years, with little or no success. In fact, as The Post points out, even the Justice Department lawyers fighting the detainees’ habeas corpus petitions in federal court have begged the judges for more time to respond to the petitions because, as the lawyers said in one recent filing, “the record . . . is not simply a collection of papers sitting in a box at the Defense Department. It is a massive undertaking just to produce the record in this one case.”

As I’ve written before, the Bush administration strongly opposed several court orders to turn over information expeditiously in the habeas cases. Now, it seems, we know why.

In one brief opposing a judge’s order, the Justice Department wrote that “defending these cases requires an intense, inter-agency coordination of efforts. None of the relevant agencies, however, was prepared to handle this volume of habeas cases on an expedited basis.”

I guess that because the Bush administration had insisted for years that it wouldn’t have to — President Bush claimed he could hold all those “enemy combatants” in prison indefinitely — providing some order to their case files wasn’t exactly a priority.

As I explained in my story yesterday, key to the government’s case that it’s entitled to keep holding the men indefinitely is that they were “captured on the battlefield” and are therefore “enemy combatants” whom the U.S. government may hold until it has declared hostilities are over.  The petitioners in the habeas corpus cases heard yesterday, however, were all captured in different countries and sent to the Bagram prison in Afghanistan, where they have remained without charge or access to lawyers for years.  Many prisoners at Bagram claim they’ve been beaten, tortured and humiliated by U.S. authorities. At least two prisoners at Bagram were beaten to death during interrogations.

Bates yesterday ordered the government to provide the following information:

• The number of detainees currently being held in Bagram Prison;
• The number of Bagram detainees who are Afghan citizens; and
• The number of Bagram detainees who were not captured in Afghanistan.

This suggests he’s at least taking a hard look at the government’s claim that the suspected terrorists or terrorist sympathizers imprisoned at Bagram are all battlefield captures. If they’re not, that supports the prisoners’ claims that they’re entitled to the same habeas corpus rights as prisoners at Guantanamo Bay.

Last June, the Supreme Court affirmed that, contrary to the government’s arguments, prisoners at Gitmo are entitled to challenge the legitimacy of their detention in U.S. courts.

Eager to help president Obama close down the prison when he takes over in January — and no doubt hoping to win brownie points with the new American president — British officials are reportedly creating a process for dealing with certain prisoners who could be sent to the U.K., though exactly who would be invited “would be for the home secretary to decide on a case-by-case basis,” according to a Downing Street official quoted by the Times.

Portugal has called on EU member nations to accept some detainees in their countries, and Germany has said it is considering doing so.

As we’ve reported before, some Gitmo detainees, such as the 17 Uighurs and some Yemeni prisoners, have been cleared by the US for release but can’t return to their home countries, where they’d likely face persecution. Although the Bush administration has adamantly refused to allow any of the men to settle in the United States, it has reportedly asked about 100 other countries to take them. Until now, most have refused.