John Yoo's Evasive Military Manuevers

Likewise, according to Yoo, the military must be free to indefinitely detain anyone suspected of involvement with terrorism, including U.S. citizens arrested on U.S. soil, and neither Congress nor the courts have any business imposing limits on such detentions or dictating how the prisoners should be treated. In a gratuitous and therefore revealing aside, Yoo and Delahunty suggested that censorship aimed at defeating terrorism would be legal, too, since "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

The Obama administration is not likely to go as far as Yoo did in asserting the president's unilateral, unconstrained authority to fight terrorism. The courts have rejected key aspects of Yoo's position, and the OLC itself renounced some of his more alarming claims (rather belatedly -- just five days before George W. Bush left office).

Yet Attorney General Holder has endorsed Yoo's view that the U.S. is engaged in a never-ending, omnipresent War on Terror that justifies extraordinary measures such as preventive detention. He also has continued the Bush administration's efforts to suppress lawsuits related to rendition and warrantless wiretapping on state secrecy grounds.

The day he released the OLC memos, Holder said viewing the fight against terrorism as "a zero-sum battle with our civil liberties" is "misguided." I'm not sure about that. There is a tradeoff here, but it is better understood as a tradeoff between the dangers of terrorism and the dangers of tyranny. The Obama administration should be judged by how well it strikes that balance.