And given all the recent discussion about CIA briefings, I was a little surprised to see this paragraph pertaining to early discussions with the UK on the Iraq war.

In May of 2002, my counterpart in Great Britain, the head of MI-6, Sir Richard Dearlove, traveled to Washington along with Prime Minister Blair's then national security advisor, David Manning, to take Washington's temperature on Iraq. Sir Richard met with Rice, Hadley, Scooter Libby, and Congressman Porter Goss, who was then chairman of the House Intelligence Committee. (309) [my emphasis]

The paragraph almost appears to be a non-sequitur. The previous paragraphs discuss the series of meetings in 2002 that discussed the challenges of war in Iraq, without first addressing the question of "whether" war in Iraq was a good idea. Then the two paragraphs directly preceding this one pose the question, "When did you know for sure that we were going to war in Iraq"--but they focus on July 2002, not May. And the paragraphs following this one discuss the July 2002 Downing Street Memos amd Dearlove's explanation to Tenet that he had concluded at the July 2002 meeting that war was "inevitable." (They also describe Dearlove disputing Libby's allegations of a tie between al Qaeda and Iraq.)

So ostensibly, at least, this paragraph about May 2002 might be there for contrast--the previous meetings with which Dearlove was comparing the July 2002 meetings, after which he concluded there had been a "perceptible shift" and the war was definitely going to happen. Except that Tenet offers no details about what was said at that May 2002 meeting (note, Tenet did not apparently attend). 

And regardless of the content of the meeting, what was Porter Goss doing at a meeting with the National Security Advisor, the Deputy National Security Advisor, Cheney's henchman, and the UK's chief spook? Was he representing "the temperature" of those in Congress on a potential Iraq war? Or was he participating in the Administration's early planning for that war?

I raise that question because of all the recent discussions about CIA briefings of Congress. This meeting occurred, of course, just as the Administration was implementing its torture program for Abu Zubaydah. CIA originally claimed that Bob Graham had been briefed on torture, twice, the previous month (April 2002). I have long suspected that Goss--the guy who would later have at least a tangential role in the destruction of the torture tapes that portrayed CIA torturing Abu Zubaydah before the Administration got formal approval from OLC--was "briefed" on torture in the April time frame, and that that was part of the Administration's CYA for torturing without Congressional approval.

And then there's the ongoing spat on the program that--Crazy Pete Hoekstra says--was "on-again, off-again" and as far as he knows never happened but which Congress was not informed of.

“If they’d done this thing and hadn’t told us about it, I’d be screaming from the tallest building in Washington,” Mr. Hoekstra said. “But it was on-again, off-again and never happened.” 

Yet it was Goss, not Hoekstra, who would have been the one informed in 2001 when the program "on-again, off-again" started. And Goss, of course, is a candidate to be among the "certain officers" who "have not adhered to the high standards held, as a rule, by the CIA with respect to truthfulness in reporting."

Mind you, Tenet doesn't appear to be describing a briefing here. But the description of Goss' attendance at this meeting suggests it may not have been a matter of briefing with him so much as participation in the early planning.

For the Iraq War. And perhaps for other things.

Liberal bloggers came to a quick verdict on the Huffington Post's announcement Tuesday that it was hiring Dan Froomkin, the recently fired Washington Post blogger who made a name for himself criticizing former president George W. Bush: Old media's loss is new media's gain.

Coming after the recent Beltway debate over coordination between Huffington Post's senior news editor, Nico Pitney, and the White House over a question about Iran at a recent presidential news conference as well as President Obama's decision to call on another Huffington Post reporter at his first White House press conference, the choice of Froomkin to oversee reporters as Washington bureau chief seemed to solidify the site's identity as a progressive voice heavily invested in Obama's success.

They've got some really funny mirrors over at the Politico, because they apparently can't see themselves very clearly over there.

That is certainly the case with Fourth Circuit Judge Karen Williams:

Karen Williams of South Carolina, the first female chief judge on the U.S. Court of Appeals for the 4th Circuit, stepped down this week shortly after learning that she was in the early stages of Alzheimer's disease, according to her family. Alzheimer's, for which there is no cure, can cause mental deterioration and memory loss. Williams is 57 years old.

The 4th Circuit, an influential voice on national security issues, hears cases from Virginia, Maryland, West Virginia and the Carolinas. Earlier vacancies have whittled away its strong Republican majority, and the court now has five judges appointed by Republican presidents and five appointed by Democrats. Williams's departure creates a fifth vacancy, so the court could gain a 10 to 5 Democratic majority during Obama's term.
...
Williams's eldest daughter, Marian Scalise, 39, said yesterday that her mother made a wrenching decision to leave a job she loves but did so promptly after her diagnosis to make sure she retired before any of her opinions could be questioned.

"The court has always been in her life. She has always loved the court, and serving the citizens, and making sure her opinions were correct as far as the law is concerned," Scalise said. "It's so difficult for her to step away from that.

I had never heard of Judge Williams before tonight, and what seems to be her most famous decision, Dickerson v. United States, I take profound issue with. Heck, even the Rehnquist court, with Rehnquist himself writing the opinion, took issue with it and reversed Williams. That said, my hat is off to Judge Williams for making the call to retire quickly and completely. This is a terrible diagnosis the judge has received, the decision must have been brutal, but Williams appears to have not flinched and looks to have removed herself before she put decisions in serious jeopardy. And, yes, judges with lifetime tenure often do hang on when they have no business whatsoever being there.

Williams' sudden retirement does present an interesting situation in the Fourth Circuit though. With a five to five split, the five potential Obama appointments could produce a seismic shift on a critical Circuit Court of Appeals.

My bet is Republicans will fight Obama appointments to the 4th like holy hell even though Obama will go out of his way to appoint worthless moderate schlubs. Any takers?

The first words in the main body of the motion are a stark reminder to President Obama and Attorney General Eric Holder of the very words and promises they have spoken in the past on the issue of illegal wiretapping:

“Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”
President Barack Obama, December 20, 2007

“We owe the American people a reckoning.”
Attorney General Eric Holder, June 13, 2008

Apparently those words only were operative during the election, because that sure is not what Obama and Holder are saying and doing now. Instead, in pretty much as big of a Constitutional about face as is imaginable, Obama has decided to turn his back on his words and promises and throw his lot in with Bush and Cheney by asserting state secrets to protect the government from inquiry and accountability on its illegal and unconstitutional acts. It is not radical left wing bloggers saying that, it is distinguished US Senator Russell Feingold:

Of State Secrets, he said the Administration's repeated assertion of State Secrets in litigation was reminiscent of the Bush Administration. He alluded to the cases before Vaughn Walker, and complained that the invocation of State Secrets would prevent Americans from finding out what really went on with the warrantless wiretap program

Senator Feingold is exactly right in his quote. The Ninth Circuit Court of Appeals has also slapped Obama hard on his continuation of the Bush/Cheney policy. And lest there be any illusion that Bush wiretapping program was legal, the following uncontroverted facts from the motion for summary judgment dispatch that notion:

On May 15, 2007, in testimony before the Senate Judiciary Committee, and on May 22, 2007, in written answers to follow-up questions by Senator Patrick Leahy, former Deputy Attorney General James B. Comey made the following statements demonstrating that defendants knew the warrantless surveillance program was unlawful yet continued it for several weeks in 2004 without the DOJ’s approval:

• As of early March of 2004, Comey and Attorney General John Ashcroft had
determined that the program was unlawful.

• During a meeting at the White House on March 9, 2004, two days before the DOJ’s periodic written certification of the program was due, Comey told Vice-President Dick Cheney and members of his and President Bush’s staffs that the DOJ had concluded that the program was unlawful and that the DOJ would not re-certify it.

• On March 10, 2004, while Ashcroft was hospitalized, two White House officials went to Ashcroft’s bedside and attempted to obtain the written certification from Ashcroft, but he refused.

• Despite the advice that the program as then constituted was unlawful, President Bush did not direct Comey or the FBI to discontinue or suspend any portion of the program.
(citations omitted)

The program was illegal from the start, and by all accounts remains so to this date under President Obama. But the most critical, and definitively illegal, period during the existence of the warrantless wiretapping program was following the infamous Ashcroft "Hospital Incident". As the "Statement of Relevant Facts" in the al-Haramain Motion for Summary Judgment lays out, this was precisely the period the al-Haramian attorneys were under illegal surveillance.

The foregoing is not just troubling because of the illegal acts committed upon plaintiff al-Haramain and its licensed attorneys, it is a damning comment on the credibility and honesty of President Barack Obama, Attorney General Eric Holder and the people they have brought on board to serve in our name.

The Bush Cheney surveillance program was legally defended in a "White Paper" issued by the Bush Department of Justice on January 29, 2006. It was a scurrilous and convoluted argument typical of the cravenly politicized Bush DOJ. Take a look at what some of the other officials serving in the Obama Administration used to say about the illegal Bush/Cheney surveillance program on page 21 of the motion for summary judgment. The really damning section, however, is contained in pages 26-28 of the motion:

Again, not even President Obama or members of his administration agree with the White Paper’s radically expansive theory of inherent presidential power. Principal Deputy Solicitor General Neal Katyal has said: “Claims of ‘inherent’ power . . . fall flat given the fact that FISA has been enacted.” Katyal & Caplan, supra at 1034. Solicitor General Elena Kagan has called the Bush administration’s legal opinions justifying the TSP “expedient and unsupported,” written by “lawyers who failed to respect the rule of law” and who do not understand that “the law and its precepts reign supreme, no matter how high and mighty the actor and no matter how urgent the problem.” Elena Kagan, Address to Cadets at the United States Military Academy at West Point (Oct. 17, 2007), available at http://judiciary.senate.gov/nominations/ElenaKagan/upload/Kagan-Question-13d-Part- 1.pdf. President Obama’s nominee for Assistant Attorney General for the DOJ’s Office of Legal Counsel, Dawn E. Johnsen, has written that the White Paper’s inherent power theory is “extreme and implausible.” Dawn E. Johnsen, What’s a President To Do? The Constitution In the Wake of Bush Administration Abuses, 88 Boston U. L. Rev. 395, 405 (2008). Johnsen adds: “The Bush administration’s ‘unitary executive’ and Commander-in-Chief theories, in my view, are clearly wrong and threaten both the constitutionally prescribed balance of powers and individual rights.”

In an amicus curiae brief filed in another TSP lawsuit, Associate Deputy Attorney General Donald B. Verrilli, Jr. (then co-chair of Jenner & Block’s appellate and Supreme Court practice) compellingly debunked the Bush administration’s inherent power theory, calling it “particularly dangerous because it comes at the expense of both Congress’s and the judiciary’s powers to defend the individual liberties of Americans.” Brief for Amici Curiae Center for National Security Studies and the Constitution Project, ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007), 2006 WL 4055623, Verrilli said that in the Steel Seizure Case “the Supreme Court established that Congress can, even during time of war, regulate the ‘inherent power’ of the President through duly enacted legislation. That is precisely what FISA does. In authorizing warrantless electronic surveillance in direct violation of FISA, the President is acting not only with power that is at its ‘lowest ebb,’ he is acting in violation of his constitutional duty to enforce the law as enacted by Congress,” Id. “Our Constitution was established to end – not enshrine – this kind of executive overreaching. . . . The NSA surveillance program upends the balance among the three
branches of government, and thereby threatens bedrock liberties the constitution and the Bill of Rights are designed to protect.” Id. at *14-15.

President Obama himself has acknowledged: “The Supreme Court has never held that the president has such [inherent] powers.” Charlie Savage, Barack Obama’s Q&A, BOSTON GLOBE, Dec. 20, 2007. President Obama expressly rejected the inherent power theory when he stated: “Warrantless surveillance unconstitutional.” Id. (some citations omitted)

The amicus brief filed by now Assistant Attorney General Donald Verrilli (who is a driving force behind Obama's legal positions on wiretapping in general and the consolidated cases in front of Judge Vaughn Walker in particular) is extremely telling. It was filed in the Sixth Circuit appeal from the famous ACLU v. NSA case where Judge Anna Diggs Taylor found the Bush/Cheney program illegal and unconstitutional.

All in all, the motion for summary judgment filed by plaintiffs al-Haramain et. al is one fantastic read, a concise set of proof of the case for entry of judgment against the government, and a damning blow to the credibility and honesty of Barack Obama, Eric Holder and other key members of the Obama Administration. Their actions are directly contrary to what they promised the nation when seeking office, and are not the standard of conduct the United States was founded upon nor deserves.

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy. However, we believe conspiracy can, in many cases, be properly charged consistent with the law of war in military commissions, and that cases that yield material support charges could often yield such conspiracy charges. Further, material support charges could be pursued in Federal court where feasible.

I've always thought the "material support for terrorism" to be a fairly arbitrary crime. That's particularly true given that Eric Holder, back in his high-priced Defense Attorney days, got powerful white corporate executives off with no charges after they knowingly supported right wing terrorist violence, but as Attorney General, Holder recently oversaw DOJ win 15 year penalties on Muslims who claimed to believe their donations had supported charity.

But Aussie Lawyer reminded me of something more important. 

Two of the only people (maybe the only people?) who have been convicted thus far in our kangaroo court Guantanamo military commission system are David Hicks and Salim Hamdan. The charge both were convicted on?

Material support for terrorism.

Of course, both have served their sentence and been freed, so I question whether either will challenge their conviction based on Kris' statement. 

But the current Assistant Attorney General for National Security seems to be suggesting that the only two convictions the Bush White House got from his military commissions would not hold up under appeal.

Now Reyes has released a statement. (h/t Laura Rozen)

I appreciate Director Panetta's recent efforts to bring issues to the Committee's attention that, for some reason, had not been previously conveyed, and to make certain that the Committee is fully and currently briefed on all intelligence activities. I understand his direction to be that the Agency does not and will not lie to Congress, and he has set a high standard for truth in reporting to Congress.

I believe that CIA has, in the vast majority of matters, told the truth. But in rare instances, certain officers have not adhered to the high standards held, as a rule, by the CIA with respect to truthfulness in reporting. Both Director Panetta and I are determined to make sure this does not happen again.

The men and women of the CIA are honest, hard-working patriots, and they do not deserve the distraction to their mission that this current issue has caused.

So, to conclude:

1. Panetta confirmed that someone was lying in the past.
2. Reyes will give Panetta the benefit of the doubt going forward.
3. The men and women in the CIA are patriots.
4. Our President still wants to maintain this system of abusive secrecy. 

I'm particularly interested in Reyes' mention of "certain officers." Would those officers happen to be named Jose Rodriguez and/or Porter Goss, I wonder? Both of whom would fit the description the 7 members of Congress used, "top CIA officials." And hell, while we're at it, let's throw George Tenet onto that list as well...

So if just "certain officers" have been lying to Congress, what are we going to do about it?

DOJ Produced a Vaughn Index in Response to a Sullivan Order

The government produced last week's filing--complete with descriptions of all the contents of Cheney's interview, in response to an order from Judge Sullivan, who didn't buy that Steven Bradbury was properly qualified to claim that releasing Cheney's interview materials would "chill" future investigations without more explanation. (This is from the transcript from the June 18 hearing, with spelling corrected.)

THE COURT: Otherwise, it's just an assumption [Bradbury] makes based upon nothing he can point to. He didn't say that he had spoken with the Vice-President, the Vice-President told him in retrospect had I known that, I never would have done this absent a subpoena. So that's the problem the Court finds itself in. There's not a lot said in the declaration other than this will happen.

Of particular note, Sullivan noted that the government has not properly invoked executive privilege here.

THE COURT: But it's clear from the record the President and no one in the executive branch has clearly asserted executive privilege here. There are the law enforcement exemption and there's certain other deliberative process et cetera, et cetera, exemptions that the government avails itself of but it's not an executive privilege.

So Sullivan gave the government a second shot to appropriately explain why this stuff should be exempt from FOIA.

But it's not going to help the government much. Granted, the government did have someone more qualified to talk about how releasing this interview would "chill" future  investigations than Steven Bradbury--Criminal Division Head Lanny Breuer. But Breuer's examples of how releasing Cheney's interview materials would "chill" future investigations were totally inapposite to this case. Breuer argues that releasing a late-investigation interview of a key subject of that investigation will dissuade ancillary witnesses from cooperating early in an investigation. And his examples of previous high level investigations show that the norm for such investigations is public disclosure.

Implicit Waiver v. The Chill

Which, I suspect, will leave Judge Sullivan right where he was before--with CREW arguing that Cheney gave an implicit waiver to have this released when he agreed to an interview with no conditions, and the government arguing that releasing the interview will "chill" future investigations of the White House.

CREW argues that Cheney agreed to the interview with no conditions so he could appear (aside from the disappearing emails, of course) to be utterly cooperative; CREW suggests that if he had real concerns about the release of the interview, he could have done what C. Boyden Gray did during Iran-Contra.

Mr. Cheney is a very savvy individual. If he wanted to protect the confidentiality of this information and we know that he knows how to protect confidentiality of information when he wants to, he would have done so, he would have known what he, the steps that he needed to take and he didn't take them.

[snip]

MR. SOBEL: I  think the Boyden Gray example shows that all Mr. Cheney would have had to have done as Mr. Gray had done was say Mr. Fitzgerald, I'm very happy to meet with you. However, by virtue of doing so, it must be understood that I am not waiving any privilege claims and that was not done.

THE COURT: That was not done here?

MR. SOBEL: Plaintiff's Exhibit A attached to our cross motion is Mr. Fitzgerald's letter to Congressman Waxman in which he states very clearly that there was no such request, there were no conditions, no agreements, and that is really the critical factor here. And that is why disclosure would not chill a future cooperation. It would merely require the witness as Mr. Gray did in the Iran Contra investigation to say to the special prosecutor I'm happy to meet with you, but by doing so please have it understood that I am not waiving any privilege claims.

[snip]

MR. SOBEL: And there was a waiver. I mean, so with respect to the exemption 5 claims, there was a waiver by virtue of Mr. Cheney's behavior or lack of any indication of concern at the time he spoke to the FBI about the confidentiality of the material, and with respect to 7(a) as we've discussed, their, this chilling effect argument just doesn't carry any weight.

Of course, CREW's lawyer took this stance before it became clear that not only did Cheney not impose conditions on his interview with Fitzgerald, his lawyer leaked the contents of his interview willingly, for political (and probably legal) reasons. So if there were any question, before yesterday, about whether or not Cheney was okay with contents from his interview being made public, there's definitely no question now.

Cheney's Lawyer's Political Leak

As a review, in April 2006, it became increasingly clear (after I first reported it in February) that Cheney had ordered Libby to leak classified information to reporters, with Bush's blessing. Just at the time when other reporters were beginning to wonder why Cheney had ordered Libby to leak the NIE--and whether Bush knew about it--Cheney's lawyer Terry O'Donnell leaked details he would have seen in Cheney's Fitzgerald interview (though they are probably inaccurate in some key ways) to Michael Isikoff.

Two days after the Fitzgerald disclosure [reiterating that Libby had said that Cheney and Bush authorized his leaks], Cheney's lawyer told reporters that the president had "declassified the information and authorized and directed the vice president to get it out" but "didn't get into how it would be done." Then the vice president had directed his top aide, Scooter Libby, to supplyis the information anonymously to reporters. [my emphasis]

Largely because Isikoff reported this unquestioningly (even though it was logically inconsistent with the publicly available facts known at the time) this story became the new conventional wisdom about the leak. Reporters focused exclusively on the NIE leak--even though Libby's story that he had been ordered to leak the NIE and not Plame's identity had big logical problems--and away from Cheney himself.

In other words, O'Donnell chose to leak the contents of Cheney's Fitzgerald interview (presumably with the consent of his client) so as to alleviate the political pressure and scrutiny on Cheney's role in Plame's outing. 

That sure seems like explicit consent to me. 

But now look at the government's argument--their real claim as to why releasing Cheney's interview materials will "chill" investigations.

MR. SMITH: But I think you have to anticipate that it's going to happen again some day. And what the Justice Department doesn't want is to become an information finder for the President or Vice-President's political enemies. We want to be in a position where we can get all of the information to do a criminal investigation of an important possible crime but not be, you know, fact finders for political opponents in Congress or political opponents in other areas of the country.

Smith believes that the only people who could conceivably want Cheney's interview materials are his "political opponents." He further suggests that releasing Cheney's interview materials would go far beyond what the law enforcement process did.

As a reminder, the "Conclusion" of the Libby trial--Fitzgerald's closing rebuttal--was this:

And you know what? [The Defense] said something here that we're trying to put a cloud on the Vice President. We'll talk straight. There is a cloud over what the Vice President did that week. He wrote those columns. He had those meetings. He sent Libby off to Judith Miller at the St. Regis Hotel. At that meeting, ... the defendant talked about the wife. We didn't put that cloud there. That cloud remains because the defendant has obstructed justice and lied about what happened.

[snip]

He's put the doubt into whatever happened that week, whatever is going on between the Vice President and the defendant, that cloud was there. That's not something we put there. That cloud is something that we just can't pretend isn't there.

Fitzgerald said the cloud over Cheney's actions during the week of the Plame leak remains because Libby obstructed justice and lied about what happened. And the jury agreed with Fitzgerald. (Not only that, but according to one juror with whom I spoke, the jury also found the NIE story to be bogus, though it was not what they were directed to judge, so they put it aside.)

That was the conclusion of the law enforcement process: with citizens unable to learn what the Vice President did because Libby obstructed justice and lied about what happened.

Yet DOJ--the Department of Justice!!!--believes that the only reason citizens would want to see Cheney's interview materials is out of political opposition to someone already out of office. And that stance is all the more absurd given that Cheney's lawyer, in an effort to obscure the anonymous leaking Cheney ordered out of political spite, has--for political reasons--anonymously leaked precisely the materials that DOJ now pretends shouldn't be revealed because they might be used for political reasons.

This entire case was about the anonymous leaking of classified material for political gain, and now DOJ wants to ensure that that system of anonymous leaking remains intact, such that only those in power get to decide when and how they'll leak this information.

Thankfully, that doesn't seem to be Judge Sullivan's understanding of how our system of government should work. As he had to remind both lawyers, FOIA is about the public's right to know what our government is doing.

THE COURT: Well, FOIA is about the public's right to know, that's paramount.

MR. SOBEL: Subject to a showing of harm.

THE COURT: Put aside the harm for the time being. The paramount purpose of FOIA is that the people have a right to know what their government is doing. That's the purpose of FOIA.

The people, Judge Sullivan says, have a right to know what's behind that cloud over the (former) Vice President. DOJ considers breaking through a cloud created by obstruction of justice to be no more than political opposition. But it appears that Judge Sullivan doesn't agree.

Let's hope he sustains that belief and releases the Cheney materials. 

Hampton and Ensign were bonded by their conservative evangelical faith. Hampton said he reached out to intermediaries involved in a Christian fellowship home in Washington, D.C., where Ensign and several other powerful Washington figures live.

The group, including Coburn, a well-known conservative, confronted Ensign and suggested that the Hamptons needed to be given financial assistance -- in the millions of dollars -- to pay off their $1 million-plus mortgage and move them to a new life away from Ensign.

During the confrontation, Ensign agreed to write a letter to Cynthia Hampton expressing remorse, Hampton said.

The letter, which was authenticated by Ralston’s executive producer Dana Gentry, is filled with contrition: “I was completely self-centered and only thinking of myself. I used you for my own pleasure not letting thoughts of you, Doug, Brandon, Blake or Brittany come into my mind,” he wrote, referring to the Hampton children.

But after sending the letter, which bears the date “Feb. 2008,” Hampton said Ensign quickly disavowed it in a conversation with Cynthia Hampton and continued to pursue her.

Hampton said that on that same February weekend, Ensign told him, “I’m in love with your wife.”

Here's the letter, which is even more juvenile than Sanford's love emails to his mistress.

So I wonder. Is this a formal policy of "the Family," to buy off members' mistresses? Did they try to buy off Sanford's mistress (remember, Sanford was getting martial counseling from "the Family" just like Ensign). Was there an implicit understanding that after their mortgage got paid off by Ensign, they would have to be silent about it, even during Ensign's potential 2012 Presidential run?

And who else's mistresses has "the Family" bought off?

Report on Covert Actions (Section 321).  The Administration strongly objects to section 321, which would replace the current “Gang of 8” notification procedures on covert activities.  There is a long tradition spanning decades of comity between the branches regarding intelligence matters, and the Administration has emphasized the importance of providing timely and complete congressional notification, and using “Gang of 8” limitations only to meet extraordinary circumstances affecting the vital interests of the United States.  Unfortunately, section 321 undermines this fundamental compact between the Congress and the President as embodied in Title V of the National Security Act regarding the reporting of sensitive intelligence matters – an arrangement that for decades has balanced congressional oversight responsibilities with the President’s responsibility to protect sensitive national security information.  Section 321 would run afoul of tradition by restricting an important established means by which the President protects the most sensitive intelligence activities that are carried out in the Nation's vital national security interests.  In addition, the section raises serious constitutional concerns by amending sections 501-503 of the National Security Act of 1947 in ways that would raise significant executive privilege concerns by purporting to require the disclosure of internal Executive branch legal advice and deliberations.  Administrations of both political parties have long recognized the importance of protecting the confidentiality of the Executive Branch's legal advice and deliberations.  If the final bill presented to the President contains this provision, the President's senior advisors would recommend a veto.  [my bold]

With all due respect, Mr. President. But are you fucking nuts?!?!?!

The Gang of Eight briefing system has been a central instrument of abuse of power, by which the President does things that violate fundamental tenets of the Constitution, but gets legal "sanction" for those things by telling eight four people who are all but hamstrung to do anything about those things. And when people "lie affirmatively" to you, you can't really say that's part of "comity" or a "fundamental compact." The Gang of Eight briefing system has been neither an element of "comity" nor a "fundamental compact" but rather a keystone of a dysfunctional, abusive relationship that guts our Constitution. 

And Obama wants to keep it that way.