Well, I just watched John Yoo -- a member of the Office of Legal Counsel during the George W. Bush administration and the author of the infamous "torture memos"  -- on Jon Stewart's The Daily Show. It was among the more excruciatingly awkward spectacles I've seen on television. (I've always admired Stewart's willingness to have his shows inform, not just entertain, no matter how strange it makes the viewing.) At the end of the show, with Yoo off the stage, Stewart made the point himself, recommending his viewers overseas play the tape if they catch any high-value detainees. It was one of, by my count, four jokes in the second half of the broadcast.

Why so awkward? The two never engaged. They questioned and parried. They talked past one another. Stewart couldn't catch Yoo in a lie, couldn't call his arguments what they were, and clearly seemed frustrated. He had brushed up on Yoo's infamous briefs. He wanted to engage Yoo. But the lawyer -- as brilliant a legal mind as there is in the United States, some insist, dressed in a gray wool suit, looking every bit the professor -- simply explained away.

The answers to the questions sound rote to my ears by now. (Before joining Foreign Policy, I worked at The New Yorker, and spent months researching for staff writer Jane Mayer's book The Dark Side, which is all about the extralegality of the Bush approach to the war on terror.)  Concerns about the legality of harsh interrogation only come up during wartime, Yoo says. The White House asked him to define the legal limits of interrogation, and he defined them as best he could, he says. Nobody had ever addressed what interrogation is legal and what isn't, he says. We do not use law-enforcement standards during wartime, he says -- we don't read terrorists their Miranda rights when we arrest them in places like Pakistan.

Yoo established such arguments in his briefs from his tenure at OLC. Since then, the legal establishment, and the government, has cast them aside. The question of what the U.S. government can and cannot do to prisoners of war is clearly delineated in both U.S. and international legal codes. The U.S. government  has confronted such questions every single time it has sent a soldier or a CIA operative overseas, anywhere from Vietnam to Kosovo, and detained suspected enemies. I was disheartened not to hear more push-back -- oh, to have, say, Harold Koh or Greg Craig in Stewart's seat! -- but not surprised.

But Yoo made a secondary argument, which I hadn't seen him make before -- one about partisan politics. When Stewart first welcomed Yoo onto the stage, he asked him how it felt to come on television knowing the animus against him. Yoo described it as the same animus Stewart, an avowed liberal, gets from hard-line conservatives. Later in the broadcast, Yoo said that some people cast aspersions on the Bush White House for the same reason that some people do on the Obama White House.

I fail to understand how despising the creative rewriting of U.S. law -- how massively, secretly expanding the powers of the executive to allow the government to torture -- is a partisan issue. Yoo and his associates, the Jay Bybees of the past administration, did the United States -- Republican and Democrat, liberal and conservative, communist and libertarian, whatever political stripe --  a tremendous disservice with their irresponsible legal freelancing. They saw the limits of the law. Rather than delineating them in black and white, they rewrote them in vibrant, torturous color.

Take just one example. It's Yoo we have to thank for the short-lived classification of harsh interrogation methods as legal as long as they do not cause organ failure. He apparently culled the language for the description from a medical textbook and turned it into law without any precedent. There's nothing partisan about seeing that for what it is. 

Deborah Solomon, the New York Times Magazine's Q&A writer, has an interview with John Yoo.

The Berkeley professor and law scholar worked in the Office of Legal Counsel during the George W. Bush administration and is the author of the infamous "torture memos" arguing that harsh interrogation, as long as it does not cause pain tantamount to organ failure, is legal.

It's worth a read in full -- he says Lincoln is the president who most overstepped his authority and that he has never met Bush -- but here's my favorite part: 

I see various groups are protesting a decision by a California government lawyer to teach a course with you that starts on Jan. 12, claiming he is legitimizing your unethical behavior.
At Berkeley, protesting is an everyday activity. I am used to it. I remind myself of West Berlin — West Berlin surrounded by East Germany during the Cold War.

Are you saying the citizens of Berkeley are Communists, reminiscent of those on the dark side of the Iron Curtain?
There are probably more Communists in Berkeley than any other town in America, but I think of them more as lovers of Birkenstocks than Marx.

When, exactly, did you become a conservative?
I’ve been one since I was a kid. I was 9 when Jimmy Carter took office. I can remember him giving a speech in a funny sweater and asking people to turn down thermostats. And then there was the malaise speech. I thought they meant mayonnaise.

You were born in South Korea and grew up in and around Philadelphia, the son of two doctors. What sort of doctors?
Psychiatrists.

What effect did that have on you?
I hope none.

Are they psychoanalysts?
I couldn’t tell you. I don’t actually know that much about their work. I’ve never really been interested.

A psychiatrist might say you are in denial.
I deny that I am in denial.

Today, Greg Craig, the White House's top legal advisor, stepped down from the post he once described as his dream job. The speculation over the much-respected lawyer's resignation has been swirling for months, reaching a fever pitch back in October, when the New York Times published a story on the controversy in the White House office of legal counsel.

Craig's resignation comes on the day the administration announced it will    try Khalid Sheikh Mohammed -- among the tougher Guantanamo cases from a prosecutorial stance, given that he was tortured and that the government hopes to seek the death penalty -- in federal court a few blocks from Ground Zero.

The most obvious reason (Craig gave none specifically in his resignation note) is that he was the person charged with closing the facility at Guantanamo Bay, determining how to relocate and try all of the detainees. When Obama came into office, he promised it would be done by Jan. 22, 2010. It will not, likely costing Craig his job. The October Times story explained:

When an administration stumbles, whispers begin and fingers point in search of someone to blame. At a certain point, assumptions can become self-fulfilling, and an official in the cross hairs finds it harder to do the job. In Mr. Craig’s case, friends said he was unfairly being made a scapegoat for decisions supported across the administration.

It is, of course, not a good thing that the administration has stumbled in its goal of closing Guantanamo. But it is worth considering that it isn't really Craig's fault at all.

Gitmo, ultimately, isn't closed because Craig did not take any of the easy ways out. He could have moved all of the prisoners to Bagram or another overseas military facility. He could have tried all of them in military commissions, the legal process jerry-rigged by the Bush administration. Because, in part, of Craig's insistence on taking each case separately and at least trying to conform to U.S. law, Guantanamo remains open.

It is a much lesser sin than what came before it. Craig is stepping down less due to his own failures than due to the extralegal maneuvering of the Bush administration. Lawyers like John Yoo and David Addington made a mockery of due process back then, and their sins are now being revisited upon members of the Obama administration. If anyone should have to answer for Greg Craig's job, it is John Yoo.

Center for Security Policy President Frank Gaffney's new Washington Times column arguing that after the Cairo speech "there is mounting evidence that the president not only identifies with Muslims, but actually may still be one himself," is not really worth much of a response.

But these two pieces of Gaffney's "evidence" did jump out at me:

Mr. Obama referred four times in his speech to "the Holy Koran." Non-Muslims -- even pandering ones -- generally don't use that Islamic formulation.

Mr. Obama established his firsthand knowledge of Islam (albeit without mentioning his reported upbringing in the faith) with the statement, "I have known Islam on three continents before coming to the region where it was first revealed." Again, "revealed" is a depiction Muslims use to reflect their conviction that the Koran is the word of God, as dictated to Muhammad. 

After about 30 seconds of Googling, I present the venerable Islamic theologian George W. Bush:

The Islam that we know is a faith devoted to the worship of one God, as revealed through The Holy Qu'ran. 

Back in April, U.S. President Barack Obama said his administration would release photographs of the abuse of detainees in prisons in Afghanistan and Iraq. Here's from the UPI wire story:

The Obama administration, in an agreement with the American Civil Liberties Union, said Thursday it will release photos of alleged abusive interrogations.

At least 44 photographs will be released May 28, the Los Angeles Times reported. While details of the photos have not been reported, some are said to show U.S. military personnel pointing weapons at suspected terrorists during questioning.

"This will constitute visual proof that, unlike the Bush administration's claim, the abuse was not confined to Abu Ghraib and was not aberrational," said Amrit Singh, an ACLU lawyer.

The decision was widely applauded at the time; the Obama administration, it seemed, was taking a stand against abusive interrogations and shining a powerful light into some dark corners. 

Obama said, "I want to emphasise that these photos that were requested in this case are not particularly sensational, especially when compared to the painful images that we remember from Abu Ghraib." He also later said the small number of perpetrators were charged and tried in 2004.

The administration then abruptly changed course, saying it would not release the photographs. The White House spokesman, Robert Gibbs, explained, "The president believes that the specific case surrounding the damage that would be done to our troops and our national security has not fully been developed and put in front of the court." The ACLU accused the White House of betrayal and stonewalling.

Today -- the day the Obama administration would have been required to release the photos, incidentally --  we may have found out why.

Ret. Major General Antonio Taguba, the author of the Abu Ghraib report, described their content to the Daily Telegraph: 

These pictures show torture, abuse, rape and every indecency. I am not sure what purpose their release would serve other than a legal one and the consequence would be to imperil our troops, the only protectors of our foreign policy, when we most need them, and British troops who are trying to build security in Afghanistan. The mere description of these pictures is horrendous enough, take my word for it.

To be honest, I'm not sure I have much to say about this, beyond that it's deeply unsettling, and raises more questions than it answers.

For one, I can't verify that Taguba is speaking about the same set of photos as Obama and the ACLU; I don't think Obama would have agreed to release the photos if the content were so graphic and dangerous, to the coalition forces and to the victims. 

Second, I don't know why Taguba, who has been retired for two years, who no longer speaks for the military, gave this interview. The Pentagon has already discredited the paper and said that the description of the photos is inaccurate. 

Third, we know of incidences of sexual abuse at Abu Ghraib. If these photos concern new incidences, I hope that all the perpetrators have been court-martialled and tried, already. The "few bad apples" line is only valid if we have confidence in the oversight and governance of U.S. prisons abroad. (Not really a comparison here, but an n.b., that sexual abuse and prison rape is a systemic problem in the U.S.) 

And finally, nothing yet from the ACLU on their site. I'll be interested to see what they have to say about this.

When I registered last week to attend Dick Cheney's speech today, I already knew it was going to be a big event, but with President Obama's Guantanamo speech immediately preceding it and the ensuing "dueling speeches" hype, AEI's Wohlstetter Conference Center took on the atmosphere of a prize fight, complete with the obligatory famous (for D.C.) attendees.

We watched Obama's speech on an overhead projector and when it ended, I half expected the room to go dark for Cheney's introduction. (AEI president Arthur Brooks makes a somewhat unsatisfying Don King figure.)

The "duel" theme felt especially strange since Cheney's speech wasn't really a rebuttal to Obama's in any real sense. Cheney's prepared remarks were passed out before Obama's speech had even ended and except for a shortened introduction, he didn't deviate from them at all.

In some sense, it would have been nice to hear actual dueling speeches in which the former vice president would actual respond to the points Obama made. For instance, Cheney repeated this currently popular talking point:

Attorney General Holder and others have admitted that the United States will be compelled to accept a number of the terrorists here, in the homeland, and it has even been suggested US taxpayer dollars will be used to support them.  On this one, I find myself in complete agreement with many in the President’s own party. Unsure how to explain to their constituents why terrorists might soon be relocating into their states, these Democrats chose instead to strip funding for such a move out of the most recent war supplemental.

But Obama had already denounced this argument as a scare tactic and made this point: 

We will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders – highly secure prisons that ensure the public safety. As we make these decisions, bear in mind the following fact: nobody has ever escaped from one of our federal "supermax" prisons, which hold hundreds of convicted terrorists. 

I would have liked to hear Cheney's response to this point (Senate Majority Leader Harry Reid also can't be thrilled that Dick Cheney is now his highest profile ally in this fight).

As another example, Obama's point that "unlike the Civil War or World War II, we cannot count on a surrender ceremony to bring this journey to an end" was a fairly good rebuttal to Cheney's arument that because there has not been a repeat of the 9/11 attacks, the Bush administration's antiterrorism tactics should be "continued until the danger has passed." Of course, it's unlikely to ever be clear when the danger has passed, meaning that the extraordinary authority that Cheney believes the president should be afforded will only be afforded at the president's own discretion.

At the same time, Cheney made some points that it would have been enlightening to hear Obama respond to as well, such as the new study Cheney highlighted showing that one in seven released Guantanamo detainees returns to terrorism or his admonishment of the administration for revealing details of interrogation methods without releasing the information they were used to obtain.

But in the end, the "dueling speeches" set-up has to be counted as a victory for Obama. The format increased the attention paid to Cheney's speech and the fact that much of what Cheney said had already been answered by Obama, made the Republican position look out of touch with recent developments. The administration seems to have decided that the best way to make its case is to set up Dick Cheney as the face of the opposition. Still, a real debate between these two would have been pretty fascinating.

SAUL LOEB/AFP/Getty Images

Yesterday, the New York Times reported on a leaked Pentagon document showing that one in seven detainees released from Guantanamo has returned to terrorism. 

An unreleased Pentagon report concludes that about one in seven of the 534 prisoners already transferred abroad from the detention center in Guantánamo Bay, Cuba, are engaged in terrorism or militant activity, according to administration officials.

The conclusion could strengthen the arguments of critics who have warned against the transfer or release of any more detainees as part of President Obama's plan to shut down the prison by January. Past Pentagon reports on Guantánamo recidivism have been met with skepticism from civil liberties groups and criticized for their lack of detail. 

The one-in-seven statistic is problematic. It might be too high. It might be too low. The category of "terrorism or militant activity" is broad; tracking released detainees and determining what they're doing -- that's not easy.

It's clear that the finding will put additional pressure on Obama administration officials to hold detainees, rather than release them. 

More interesting will be the reaction of Bush administration defenders to this statistic. Does it mean we're minting terrorists in Guantanamo? Or does it mean these people were always too dangerous to release?

U.S. President Barack Obama and former Vice President Dick Cheney are both giving national security speeches on Guantanamo Bay policy this morning -- Obama at 10:10 (he isn't on yet) and Cheney at 10:45. FP's Joshua Keating is at AEI to see Cheney, and he'll report back later today.

In the meantime, watch Obama streaming here and Cheney streaming here. 

Update: Here's the text of Obama's speech.

Tone-setting quote: 

On all of these matter related to the disclosure of sensitive information, I wish I could say that there is a simple formula. But there is not. These are tough calls involving competing concerns, and they require a surgical approach. But the common thread that runs through all of my decisions is simple: we will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it is uncomfortable. I will deal with Congress and the courts as co-equal branches of government. I will tell the American people what I know and don't know, and when I release something publicly or keep something secret, I will tell you why.

In all of the areas that I have discussed today, the policies that I have proposed represent a new direction from the last eight years. To protect the American people and our values, we have banned enhanced interrogation techniques. We are closing the prison at Guantanamo. We are reforming Military Commissions, and we will pursue a new legal regime to detain terrorists. We are declassifying more information and embracing more oversight of our actions, and narrowing our use of the State Secrets privilege. These are dramatic changes that will put our approach to national security on a surer, safer and more sustainable footing, and their implementation will take time.