That may be true, but there’s an aspect of one of Brennan’s recent speeches that, if actually implemented, would have the opposite effect.

As Spencer Ackerman reported here earlier, Brennan, in his speech to the Center for Strategic and International Studies, declared an end to the “war on terror.”

“This is not a ‘war on terror,’” Brennan said. “We cannot let the terror prism guide how we’re going to interact and be involved in different parts of the world.”

Well, if that’s the case, then how is the Obama administration going to justify “preventive detention” of terror suspects under the laws of war?

That power to detain supposedly “dangerous” people who can’t be proven guilty in any sort of court is a power the Bush administration relied on heavily and the Obama administration continues to claim. It’s at the core of President Obama’s claim that there’s a class of people who cannot be tried in criminal court or even by military commission, yet still must be held in prison because they’re “dangerous.”  That’s all been justified legally by saying that we’re at “war,” and terror suspects are warriors in the “war on terror.”

Now that the Brennan has declared an end to that war, is the Obama administration willing to relinquish its right to detain terror suspects picked up anywhere in the world?

So far, Obama has not made clear how he intends to use this “preventive detention” authority he claims that he has, though it’s as broad a detention authority as Bush Attorney General Michael Mukasey claimed over a year ago. But if Brennan really has the sway over the administration that Wheeler suggests he does, then maybe Obama will soon have to concede that the “war on terror” is over — and so is his corresponding power to seize and imprison its supposed “warriors” anywhere in the world.

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.

Nuristan Province, Afghanistan

COMBAT OUTPOST ZORMAT, Afghanistan – The Hooligans, officially the Alpha Cavalry Troop’s First Platoon, were on their way to interview some villagers out in sector when the call came over the radio: head back to base immediately.

New intelligence had come in about the Taliban weapons cache that the platoon had tried in vain to find on Saturday. A trusted source had said he was “100 percent certain” he knew where the weapons were –- along with other material recently hijacked off of Jingle Trucks. The troop’s trucks turned around and headed back to Zormat

Back at the tactical operations center, Capt. Chad Collins, commander of Alpha Cavalry Troop, 1-61 Cavalry, was visibly excited as he briefed his subordinates. Since the mission involved going into kalats — Afghan homes — in an obscure village called Spin Sarakalat, the Hooligans would be joined by a complement of Afghan National Police, or ANP. That meant a U.S. Police Mentorship Team –- soldiers embedded with the police to improve their performance -– were along for the mission. “This is all the crap we were after the other day,” Collins said, “except now we have pinpoint intelligence.”

The intelligence came from a source I’ll call Errol Flynn. He is an Afghan who provided information to a special component of Afghan police, and who traveled from a distant city to brief Collins’ soldiers. The night before, he heard from a contact about a stash of stolen U.S. equipment at the house of a Taliban operative named Dawood. Amazingly, he investigated personally – Spin Sarakalat is at least 20 minutes from the nearest dirt road, with a paved road practically a fading memory — and “saw cables [and] a big generator” coming out of Dawood’s house. Flynn said he was so sure that the weapons were there that he’d quit his job if he led the Hooligans on a wild goose chase.

A quick lunch later, and the Hooligans met in the base’s motor pool, running through drills with their ANP counterparts.

Earlier that day, Sgt. Oscar Macias, frustrated with new rules restricting the Afghan National Army from participating on the Hooligans’ scheduled mission, remarked, “Remind me again why we need the ANA and ANP.” The platoon sergeant, Forrest Robertson, reminded him that “the mission won’t end” until the Afghan security forces are able to control the country on their own. But there was a more immediate need for the ANP’s participation on the mission: U.S. forces aren’t permitted to raid kalats on their own.

With two trucks of ANP cops rolling along, the Hooligans and the PMT set out for Spin Sarakalat, about 90 minutes from the base. At least half of the trip was off-road, over rough, dry farmland. The megaton trucks pitched from side to side, as if on open water. The cracked clay of the terrain was indistinguishable from the clay structures of the kalat houses that jutted out of it — crumbling structures that look like slouching, sun-bleached castles.

Thanks to a dirt-covered bridge, barely wide enough for the platoon’s vehicles, the Hooligans had to approach the suspicious kalat on foot — across 800 meters of wide-open field. As with the mission on Saturday night, if anyone opted to shoot at them, there was nowhere to take cover. The Hooligan lieutenant, N. Blaine Cooper, ordered the ANP to drive ahead –- their pickup trucks could get over the bridge easily -– and block off the potential escape routes from the kalat. Then Cooper, Staff Sgt. Rannalt Bahr, Sgt. Richard Balch and Pfc. Curtis Oakes picked up their rifles and led the march.

The kalat’s red clay walls, about twice the height of an ANP truck, was punctuated by only one entrance, guarded by bright blue doors. A family of chickens pecked around the garden courtyard, oblivious to the advance of the U.S. soldiers and Afghan police. As Cooper’s men reached the kalat, they joined the chickens in stillness.

“This is where the fun for us ends,” Cooper said. Only the ANP and their PMT partners could enter, though the lieutenant lent the PMT one of his translators, Joe. Cooper ordered his men to the perimeters of the building.

Suddenly, the inside of the kalat exploded with screaming. Joe peeked his head out the door. “They found one man in a woman’s dress!”

The ANP barreled through the door. As the police yelled in excitement, they pushed out a visibly frightened man with a thick black beard. He was wearing ornate, feminine robes of bright orange and red. This was Dawood Shadikhan, 33, whom Errol Flynn had pegged as a Taliban soldier. With the police jostling him forward, he pleaded in Pashto to anyone he could for his release –- to the lieutenant, to the stoic-looking soldiers beside him, to the reporter scribbling notes.

Shadikhan was not alone. A half-dozen elderly women, faces dotted with tribal tattoos, streamed from the kalat, wailing in sorrow and begging the police and soldiers to let Shadikhan go. Their screams were deafening. Shadikhan joined in, seemingly stoking the fracas.

An angry Afghan police officer, his flopping hair dyed red in front, picked up a wooden pole and bashed Shadikhan in the shoulder blades with it. With the blows, women’s cries reached a fever pitch. Still furious, the officer pivoted around and threatened the women with the pole, causing the oldest among them, wrapped in a black dress, to lose her balance. She took an ugly fall and started to cry.

Cooper, sensing the young ANP officers were losing control, yelled at the red-haired cop to stop and put down the pole.

“Get the women away!” Oakes yelled, as Balch pulled up Shadikhan’s dress. Balch found a 512-megabyte memory card –- evidence. Cooper took the card and told his interpreters, Joe and Massoud, “Get the ANP to relax, and not blow things out of proportion.”

Balch, accompanied by PMT members and two angry-looking cops, marched Shadikhan around the kalat’s corner, away from the women, and flex-cuffed the detainee’s hands. Stripped of his woman’s clothes, Shadikhan wore a dirty tan shirt that stretched to his knees and a tattered green cardigan. He was barefoot and afraid. Errol Flynn, behind him, beamed over a job well done.

But where were the weapons and the stolen cargo? Shadikhan insisted that men had come and moved the haul to a neighboring kalat. He gestured at it with his head. Capt. Chavez, an MPT leader, took the detained Shadikhan back into his house to make sure it was empty.

Outside, the women sat in the dirt, supplicants to the U.S. soldiers, begging that Shadikhan hadn’t done anything wrong. “We mean no disrespect,” Cooper told them. One elderly woman, dressed in black, her forehead and chin dotted with tattoos arranged in the shape of diamonds, insisted through translation, “ANP trucks came and carried all the stuff away.”

Cooper continued what seemed to be polite and calm questioning. The older woman pleaded that, two days before, “white taxis” had pulled up, depositing “a civilian guy with a big beard” who knocked the door open and took things from the kalat as well. She had piercing blue eyes. But she swore there were no Taliban in the area.

“Why did they put a woman’s dress on Shadikhan?,” Cooper asked. She said they all were scared when the soldiers arrived.

The doors to the kalat burst open again. Out sped the police officer who had beat Shadikhan, driving a new maroon-colored motorcycle, a huge smile plastered on his face. Trying not to be distracted, the woman continued, “You are better than the Taliban, they hit our women.” But the other women looked agitated at the idea of the police taking their motorcycle.

Chavez emerged with Shadikhan, the PMT and the ANP. The kalat looked empty, except for the motorcycle and a hunting rifle. Shadikhan swore that he had a license for the motorcycle. When the soldiers looked through his pockets, all they found was his wallet and identification. “He’s lying. He’s Taliban,” Joe muttered.

Balch was unimpressed with the hunting rifle. A frustrated cop told him it was hidden in some bushes. Big deal, he said, “I have one in the bushes at home, too.” Starting to look skeptically at the ANP, he told the women they could have their rifle back.

Shadikhan insisted that all the men had left the village, “scared of you, scared from the Taliban… many times ANP guys had come here and hurt us.” This time, however, he contradicted the women, saying the Taliban had been to the house two days ago. He was led to Sgt. Robertson’s truck to be taken to the district commissioner’s office for booking, and then to the Zormat jail.

The red-headed cop sat on the motorcycle, revving the engine and treating it like his personal property. Balch gave him an icy stare. If the vehicle didn’t have documentation, technically it was illegal, and it should be impounded at the district center. But it didn’t seem like the police were going to follow procedure to the letter here. Robertson agreed.

“They can’t take the motorcycle because it’s not registered,” he pleaded to Cooper. The lieutenant said that the police were, in fact, within their rights to seize the bike. “They can,” Robertson said, “but look at the situation!” That was all Cooper needed. The red-headed cop still sat on the motorcycle, and the other ANP began to get angry that the soldiers would tell them not to take it. “I don’t give a fuck who’s saying what,” Cooper told the ANP, “the bike stays here!”

He walked off. The women were still wailing. “Holy cow,” Cooper muttered to himself.

Errol Flynn had a worried look on his face. The sun was setting. “This place has too many Taliban here,” he said through one of the translators. “It’s too dangerous. We need to leave before dark. They may ambush us.”

Cooper had a decision to make. Within the hour, it would be pitch black in an open field, far from the base. They had yet to search the kalat that Shadikhan had identified as the place where the Taliban took the weapons cache. What should they do?

A PMT leader, Cpt. Phipps, was concerned. If the kalat was in walking distance, “Yeah, but if not, we’re throwing ourselves out here like sitting ducks.”

The kalat was about 100 meters away, Joe said. Cooper decided to check it out and then leave. But as soon as the soldiers began their march to the second kalat, their plans were overtaken by events: the ANP got into their trucks and began to head back to their headquarters.

Cooper, a preternaturally taciturn man, was stunned. Joe ran up to a police truck to find out what was happening. The ANP, he said, were angry about not being able to seize the motorcycle, and refused to continue the mission with the Hooligans. Without the ANP, the soldiers couldn’t enter the kalat — meaning they’d potentially have to leave a weapons cache where the Taliban could move it.

Oakes, marching back to his truck, said this was “pretty par for the course,” adding with a rueful grin that the police in this area were still better than the troop of the Afghan National Army. A frustrated PMT soldier said the cops were “temperamental little children.”

Cooper went to talk to the policemen, who didn’t budge. “That’s fine,” the lieutenant fumed.

There was one last thing to say. Phipps, in an angry tone, told the ANP that “the detainee is not to be beaten.” Cooper added, in vivid language, that if he ever saw a police officer hit a detainee who wasn’t a threat -– as the red-haired officer had done to Shadikhan -– there would be serious consequences.

Shadikhan was taken away by the ANP. No senior officers accompanied the police team, for they were apparently busy collecting their paychecks from the bursar. Meanwhile, Phills and Chevez ahd quickly arranged to meet with the police chief the following day to check up on the detainee.

But Shadikhan had one last thing to say for himself. Trying to straighten out his story, he first said that, two days before, the ANP had come to his home in the morning, and then the Taliban came that evening. He wasn’t home in either case, he added. Then, he bizarrely insisted that the Taliban hadn’t actually paid a visit.

“He had better pick a story,” Cooper said. On questioning, the ANP chief did concede that another ANP team had visited Shadikhan’s home. But he vociferously denied taking anything -– despite both Shadikhan and the woman’s story. Meanwhile, Shadikhan said the Taliban had taken “some electrical cables and a generator” –- though he had just said the Taliban hadn’t come to his house at all.

As Robertson said earlier that day, the police and the army are the only long-term strategy for securing Afghanistan. The U.S. troops have two missions: to hunt down the Taliban and Al Qaeda elements, and to prepare the Afghan security forces to take over security duties. Today, the second mission appeared to imperil the first.

Cooper headed back to his truck. Perhaps further questioning of Shadikhan could yield more information about the location of the weapons cache. Maybe explaining what had happened to senior police officials could get the ANP back on the same page as the Hooligans.

But for now, Cooper had to go back to base empty-handed -– again –- blocked from searching the kalat. “If they won’t do it because we won’t let them take a motorcycle…” Cooper trailed off, letting the implication hang in the setting Afghan sun.

As it turns out, this tiny, austere base in Paktia hasn’t been mortared recently, thanks to protective measures taken by its residents, Alpha Company, the 1-161 Cavalry from Ft. Cambell. But the IED threat is no exaggeration. Since May, insurgents have planted the homemade bombs all throughout the few roads in the area. The company’s response, following the wheat harvest, has been to avoid the roads as much as possible. While soldiers will face occasional indirect fire, after May 10, 2008 – more on that day later – the insurgents primarily target Alpha Company through IEDs, not shootouts.

Zormat is a challenging environment for the company. Alpha Company has responsibility for a 30 kilometer-by-60 kilometer slice of Paktia, sharing space with an illiterate, agronomy-dependent population almost entirely cut off from modernity. According to members of the company, tribal law is the rule – there are easily ten tribes in the area, including at least one nomadic tribe, and the company isn’t sure how large the population exactly is in its area of operations – and the people here think in terms of conditions in their immediate surroundings. Notables at the weekly shura, or council, seek to deliver schools and clinics in their villages even if there’s another clinic just up the road. “Immediate gratification” is a term company members used to describe the locals’ mindset.

About half the people here were born in Pakistan, said the commander of Alpha Company’s 1st Platoon, Lt. N. Blaine Cooper. Cooper — a tall, broad-shouldered, and mustachioed 25-year old native of Tulsa who favors wrap-around shades – said the attitudes of people here toward the Taliban and the U.S. varies, with one town saying security is “great,” while the next one is “hesitant to talk [to the company] because they’re afraid of who’s listening.” The Taliban’s activities in the towns consist largely of intimidation, demanding food and quartering from the populace, while spreading money around to plant IEDs. Zormat sits atop a route for insurgent infiltration running north from Pakistan through Paktika Province in the south; seeking to cut off Khost Province to the east; and hoping to run all the way up to Kabul. As a result, the company sees Taliban commanders coming from outside of the area and hiring locals as foot soldiers. The platoon sergeant, Forrest Robertson, a gung-ho 30-year old from Wamego, Kan., describes as the typical Taliban soldier as “a local, a farm kid” with strong religious sensibilities.

Southwestern Paktia is greener and more fertile than much of Afghanistan, but the locals aren’t interested in bringing their harvests to market. Befitting the immediate-gratification ethic here, subsistence agriculture is the rule, with relatively poor hydrology effectively preventing large-scale farming even if an enterprising farmer decided to expand.

The Taliban has used the destitution of the area to its advantage. Locals typically tell the company that “when the Taliban was in control, prices were lower, crops were better, the economy was better,” Cooper said. Indeed, six weeks ago, Cooper’s platoon, which calls itself the Hooligans, distributed humanitarian aid – beans, rice, blankets, radios, school supplies, cooking oil and the like – to a city called Tatanak about 7 kilometers to the north. A few hours after the Hooligans left, the Taliban burned the haul. The following week, when Cooper’s soldiers returned with another load of goods, “the people refused to take it,” he said. If the villagers perceive a link between their scarcity and the Taliban’s destruction of aid supplies, it’s not apparent to Alpha Company.