On the use of “state secrets” and other issues, “they haven’t closed the door to pursuing policies the Bush administration followed,” said Caroline Fredrickson, director of the ACLU’s Washington legislative office. “It’s not yet clear. It is still so early.”

The Obama administration’s positioning thus far has led to an interesting contrast in the statements of the top Democrat and top Republican on the Senate Intelligence Committee after the panel approved Panetta’s nomination.

“He has promised the Senate Intelligence Committee that he will not allow coercive interrogation practices, secret prisons, or the transfer of terrorist suspects to countries that may use torture,” said Chairwoman Dianne Feinstein , D-Calif.

Christopher S. Bond , R-Mo., said he supported the nomination after Panetta assured him he would be aggressive in defending against threats, and said that Panetta “has committed to using all appropriate and lawful means to do so, including  . . .  exploring the use of enhanced interrogation techniques on high-value detainees that may warrant going beyond the Army field manual in certain situations, and the lawful rendition of detainees to countries who have assured our State Department that they will not engage in torture.”

Court Cases

The two cases in which the Obama administration invoked the “state secrets” privilege dealt, respectively, with suits alleging that a Boeing Co. subsidiary aided the illegal transport of terror suspects overseas to be tortured and accusing the Bush administration of illegally conducting surveillance of a Muslim charity.

They were the first two opportunities the administration had to mimic President George W. Bush ’s use of the privilege.

During the campaign, Obama had criticized Bush administration secrecy and interrogation policy and vowed, “no more illegal wiretapping of American citizens.”

“In general, it is the policy of this administration to only invoke the ‘state secrets’ privilege in cases where it’s legally appropriate, which is why the attorney general directed Justice Department officials review every time it’s invoked,” said Justice Department spokesman Matt Miller.

“We will make sure this privilege is never invoked to hide from the American people information they have the right to know.”

The spokesman declined, however, to comment on specific cases.

On interrogation, Panetta had been a vocal opponent of torture prior to accepting the CIA post. But the Bush administration also had taken the stance that it did not torture.

During his hearing, Panetta expressed concern that coercive interrogation tactics could lead to misinformation, and promised a review of the question.

He added that if the CIA diverged from an executive order, the administration ought to notify congressional intelligence panels, and that the president was required to follow the law no matter his constitutional authority.

“The executive order was quite strong, and a lot of statements made during the campaign were quite strong,” Fredrickson said. “Statements made during the confirmation process got a little weaker.”

Surveillance, Guantanamo

Despite expressing skepticism of the Bush administration’s warrantless surveillance program during the early portion of the campaign, Obama ended up supporting legislation that effectively authorized it (PL 110-261). But he said he opposed the portion of the legislation that would establish a process to grant retroactive legal immunity to telecommunications providers that might have been involved in the program.

Attorney General Michael B. Mukasey initiated the process for providing immunity to the companies last year, although a judge has not yet decided on the matter.

Some critics have said they hoped Obama would reverse Mukasey’s actions, but Holder indicated during his nomination hearing that the administration would stay the course unless there were “changed circumstances,” and Blair said he supported retroactive immunity.

One area where Obama has taken the strongest tack opposite Bush is an executive order on closing the Guantanamo Bay detention facility. But some legal experts expect that Obama will have a difficult time emptying it completely, and that a number of detainees may be held indefinitely without charges at another location.

“I don’t believe the universe of people who are too dangerous to release and non-prosecutable is zero,” said Benjamin Wittes, a senior fellow at the Brookings Institution. “I’m not even sure I believe it’s small. I think it’s going to be harder to get rid of people than a lot of people expect and harder to prosecute people than a lot of people expect.”

On a number of other intelligence issues, the administration has either shared a similar view with the previous administration or has suggested it might behave in a similar fashion.

Both Blair and Panetta said they would strive to cut down on the use of intelligence contractors, a Bush administration practice decried by some critics in Congress for its expense and potential for abuse, particularly when it comes to interrogations. But both also said they might turn to contractors in specific instances where the intelligence community didn’t have the right personnel for a given task.

Both Holder and Elena Kagan, Obama’s nominee for solicitor general, said they considered terror suspects war prisoners who could be held without trial, similar to the Bush administration position.

Legislative Moves

In areas where Obama administration policy is not finalized, lawmakers may press their case with legislation should the White House veer too far from the viewpoint of the Democratic-controlled Congress.

After the administration invoked the “state secrets” privilege in the Boeing case, lawmakers in both the House and Senate introduced legislation (HR 984, S 417) to curtail its usage.

Before Obama issued his executive orders, lawmakers also introduced legislation in both chambers (HR 374, S 147) addressing Guantanamo, interrogation methods and other detention and interrogation topics.

Feinstein, a sponsor of the Senate legislation, said after the orders that she would “let those executive orders settle in” before deciding whether to press the bill.