Assuming the quote from Craig is fully accurate -- and I have no reason to think it's not other than general skepticism about the ability or willingness of reporters to get quotes exactly right -- then perhaps one could read it charitably to mean that Obama is wary of undermining or weakening the legitimate powers of the institution of the Presidency. I would have no problem with that principle (although there's plainly a lot of room to differ on what's "legitimate"). And that's obviously different from reading it as an unwillingness to reduce the President's powers at all from what Bush asserted or, as GG suggests, "maximizing" the powers of the Presidency.

Still, of course, that might not be what was meant. Obama's actions so far might lead one to conclude either way. But there's no reason why we have to speculate; i.e., no reason Craig can't be asked to clarify.

I wonder if the theory being asserted here is really one of constitutional limits, as was the Yoo line of thinking. I admit to not having had time to do more than skim the brief, so I defer to your closer examination, GG. But it seems that classified information is currently regulated solely by Executive Order, and while the theory may be that this EO is a valid exercise of the President's Article II powers, I don't know that it necessarily entails an assertion that Congress could not limit that power by legislation. They just haven't done so. Asserting that the judiciary is not in a power to adopt such limits doesn't necessarily imply Congress couldn't.

In other words, maybe what we really need is a law to govern classified information and the state-secrets privilege. Actually, in my mind there's no "maybe" about it.

Look, I'm just thinking out loud here. But first, I don't know why an EO necessarily cannot apply to limit the judicial branch. I'm pretty sure that the judicial branch thinks that its powers are limited to some extent by the powers granted to the Executive in Article II -- Egan sure says as much, right? -- and so to the extent an EO is just embodying those Article II powers, I don't see why it can't have an effect on the judicial branch. (I'm not, mind you, saying that the contours of that limitation the judiciary are necessarily the same as what Obama's DOJ is asserting here.)

As for statutory authority, I assume you're referring to CIPA -- that only covers criminal cases, right? And the FISA provision you refer to, 1806, is only a vehicle for determination as to whether any electronic surveillance evidence was properly authorized. I honestly don't see how either of those statutes applies here.

But my point was simply this: I think Congress needs to legislate more comprehensively in this area. And while I could be wrong, I don't think the Obama DOJ argument put forward here is necessarily an assertion that Congress lacks that authority. (Which would be the Yoo position.) They are saying, correctly it seems to me, that Congress has not done so. Of course, if Congress did so then maybe Obama would adopt the maximal Article II position, it certainly wouldn't surprise me if he did. I'm just suggesting he hasn't done so here.

Agree with most everything you have to say here, GG, but realistically, I'm not sure Panetta has much choice but to publicly defend his people. If he did otherwise, the CIA -- who already don't see him as "one of them" (not that this is necessarily a bad thing) -- would revolt. That's not a very good argument from a moral standpoint, but it's I think the reality.

The real question is whether Obama will let that argument carry the day and/or hide behind Panetta's demands. It's on the Prez's shoulders, plain and simple.

the next time you're pulled over by a police officer for speeding, quote Barack Obama: "This is a time for reflection, not retribution." See if that works. If not, move to: "It's time to focus on the future, not look to the past." Criminal defense attorneys should try that on juries and judges, too.

Oh, for Christ sake. Context matters. I don't agree with Obama's decision, if it is truly that, to afford blanket immunity for CIA torturers. But the above is just stupid and really not worthy of you, GG. Police and prosecutors exercise discretion all the time; not every crime is punished and sometimes the reasons for one decision might not support the same decision in another context. Just because Obama's statement wouldn't be likely be a valid consideration for a speeding ticket doesn't mean it might not be in the context he's using it.