Obama’s Presidential Policy Directive: Pixie Dust 2.0

Back when John Yoo was finding ways to authorize President Bush’s illegal wiretap program — especially spying on Americans who were not agents of a foreign power — he changed the meaning of certain limits in EO 12333 without rewriting EO 12333. The President didn’t have to change EO 12333 to reflect actual practice, Yoo determined (relying on an Iran-Contra precedent), because ignoring EO 12333 amounted to modifying it.

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

I call this pixie-dusting, where the Executive makes his own orders and directives disappear in secret.

Poof!

The use of pixie-dust — so recently used to justify spying on people while pretending not to spy on them — ought to give you pause when you read this passage from President Obama’s Presidential Policy Directive limiting US spying overseas (or, frankly, everything he said today, which all consists of the Executive exercising its prerogative to change and oversee Executive actions, but in no way includes any teeth to sustain such changes).

Nothing in this directive shall be construed to prevent me from exercising my constitutional authority, including as Commander in Chief, Chief Executive, and in the conduct of foreign affairs, as well as my statutory authority. Consistent with this principle, a recipient of this directive may at any time recommend to me, through the APNSA, a change to the policies and procedures contained in this directive.

Effectively Obama is laying out his prerogative to pixie dust this PPD.

And while the President admittedly would always have such prerogative, he didn’t include such a paragraph in his cyberwar PPD (which, of course, wasn’t meant to be public).

This PPD was designed to be ignored.

And I suspect our friends and adversaries know that.

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JimWhiteGNV RT @IAStartingLine: PREVIEW: Steve King says it's legal, so I tried to marry my lawnmower. The results & video tmrw AM on Starting Line htt…
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bmaz @Travis_Waldron @maxwellstrachan ...of NJ statute/diversion program in Rice's offender profile+Intervention intake matrix cousel otherwise?
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bmaz @Travis_Waldron @maxwellstrachan I'd like to know what the "experts" cited in the HuffPo piece can point with specificity to in terms....
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bmaz @Travis_Waldron @maxwellstrachan Or you can just cite the spokespeople of political lobbies. For my part, I'll stick with those in the field
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bmaz @Travis_Waldron @maxwellstrachan Honestly, this is 180º different than what actual trial level DV experts+practitioners I know+work with say
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bmaz #FreeBlago Also, of course is petitioning en banc, he is in no hurry; there's always going to be some base sentence. https://t.co/K3K8oKI7n9
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bmaz When it comes to crim justice, procedural+civil rights concerns, Joe Biden is the same horrible man Roger Goodell is: http://t.co/MJpyiWIfHz
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bmaz @kdrum @unorigmoniker Now THAT might actually make America great again.
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emptywheel @astepanovich Dunno. We should get someone to apply to see what they want. ;p
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emptywheel "Act as a senior Agency rep to private sector, particularly for engagements w/cos in info tech business sector." https://t.co/GVLI73mKNL
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emptywheel And, as @riffraafx and @HeerJeet noted, this is more evidence GOP is going thru Kubler Ross process w/Trump. http://t.co/Cd8qH1JBjH
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emptywheel One thing I'd add to my 5 stages of Donald Trump grief http://t.co/J3HAiONyhr would be this meltdown at focus group. http://t.co/uw8J55DLRH
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