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 I'm so old I remember when we refused kids fleeing US-created drug war violence asylum.
9mreplyretweetfavorite
bmaz Hey @ESPN where is Chris Mortensen? Do you have @mortreport in witness protection or something? You ever going to apologize to Pats+Brady?
35mreplyretweetfavorite
bmaz @WALLACHLEGAL Trying to catch back up after a long day at my actual day job....Exactly what was amended in the amended order? Not seeing it.
44mreplyretweetfavorite
emptywheel @erinscafe If you're going to bigot from the Bible I think you should do it standing up. Ditch the lawn chair, lady.
46mreplyretweetfavorite
emptywheel Reup: The Loopholes in DOJ’s New Stingray Policy https://t.co/bIevipWNkD
1hreplyretweetfavorite
emptywheel @nickmanes1 Aerospace.
1hreplyretweetfavorite
JimWhiteGNV Wait. We're allowing a person known to materially support terrorists and to behead people readily into the US? #ArrestKingSalman
2hreplyretweetfavorite
JimWhiteGNV Get a job early and often... https://t.co/QJJUBla9Kj
2hreplyretweetfavorite
bmaz @HuffPostSports Good glad to hear it. Might want to reset the filters for the autonomous side. But @Travis_Waldron is superb!
2hreplyretweetfavorite
JimWhiteGNV Syria, Afghanistan, Iraq, Libya, Somalia. If the US would just stop fucking up countries, the world refugee problem would get so much better
2hreplyretweetfavorite
bmaz Congratulations to @HuffPostSports for producing the dumbest+most uninformed take yet on #Deflategate http://t.co/JFjsCX12U7
2hreplyretweetfavorite
emptywheel @LOLGOP It's best to learn that way bc bombing damage will show up on Google Maps, right?
2hreplyretweetfavorite