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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Emptywheel Twitterverse
emptywheel @Krhawkins5 Brady? Pshaw. Brady's quaint and outmoded even for criminal defendants. Just ask Ted Stevens.
1mreplyretweetfavorite
emptywheel National news report reports, again, that brave nurse rode a bike, in defiance of cowardly politicians.
15mreplyretweetfavorite
emptywheel @digby56 Except they didn't charge him w/anything CLOSE to what Muslim'd be charged w. Real explosives usu charged lighter than FBI fakes
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emptywheel @droosien Trust me. It's nowhere near as spectacular! @firstlook @mtaibbi
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JimWhiteGNV RT @snarwani: Conservative #Iran daily Jomhuri-ye Eslami says nuke deal looks good - that btwn the P5+1 & Iran "differences of views are ne…
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emptywheel @onekade Please don't overshare things like this on the Intertoobz. Your enemies will accuse you of baby squeezing or something.
34mreplyretweetfavorite
emptywheel But in addition they'll say our oligopolistic comms and our spying choked each other to death.
36mreplyretweetfavorite
emptywheel I said last week that when they tell the Decline and Fall of the Great Murkan Empire, they'll say we peed our pants to death.
37mreplyretweetfavorite
emptywheel @onekade Well, for $30/M I want broadband speeds like South Korea has. We're going to invest, you know.
38mreplyretweetfavorite
emptywheel Let's nationalize All The Things, proclaim them all utilities, and impose REALLY strict rules on spying w/unlimited Toobz for $30/mo.
39mreplyretweetfavorite
emptywheel So really problem is not that FBI needs its Golden Key. It's just that FBI spies so flagrantly w/AT&T, VZ Comey wants to even out spying
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emptywheel @aria_ahrary Have said so myself. It's just my Halloween costume. I go back to being little ol chicken shit me Saturday.
42mreplyretweetfavorite