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.

Tweet about this on Twitter0Share on Reddit0Share on Facebook0Google+2Email to someone

18 Responses to Obama’s Presidential Policy Directive: Pixie Dust 2.0

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8
  • 9
  • 10
  • 11
  • 12
  • 13
  • 14
  • 15
  • 16
  • 17
  • 18
Emptywheel Twitterverse
emptywheel @JimWhiteGNV It amazes me CSPAN keeps renewing that series where Jack Keane says, over and over, Surge will bring Victory! @joanneleon
25sreplyretweetfavorite
emptywheel I finally found someone claiming Section 215 permits govt to "intercept communications"! https://t.co/ZvtY2EMTT2 http://t.co/Jw20bgCUgJ
2mreplyretweetfavorite
JimWhiteGNV RT @JohnFugelsang: Last Fall Michelle Duggar robocalled that trans people might molest your children. Today irony and karma got married.
4mreplyretweetfavorite
JimWhiteGNV @joanneleon @emptywheel I can't watch those things these days. I would undoubtedly just have a stroke and die from the stupid on display.
5mreplyretweetfavorite
emptywheel @dnvolz Right. So he should be deprived of all claims about this being a fix. If it were, he would have suggested it in March.
10mreplyretweetfavorite
emptywheel Everyone should take this test. As someone who has taught The Trial and knows a bit abt FISC I did horribly. http://t.co/SnpF0g66wI
10mreplyretweetfavorite
JimWhiteGNV RT @KagroX: When it comes to pronouncing acronyms, I still maintain that the "Century" in PNAC requires a "soft C" sound.
10mreplyretweetfavorite
emptywheel @dnvolz Basically all coverage of Burr's gambit to expand surveillance today should start from premise that he already missed the deadline.
14mreplyretweetfavorite
emptywheel @dnvolz Yes, which is why the claim that House can just vote on June 1 is patently false claim--unless they have slumber party.
16mreplyretweetfavorite
bmaz @OKnox @armandodkos @anitakumar01 But we love you nevertheless!
23mreplyretweetfavorite
bmaz @OKnox @armandodkos @anitakumar01 Also, after way press treated Clintons in past+is ALREADY doing again, why wouldn't they be stand-offish?
24mreplyretweetfavorite
bmaz @OKnox @armandodkos @anitakumar01 You all in the press have 17 months to do that. Chill.
25mreplyretweetfavorite