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

Emptywheel Twitterverse
emptywheel And the flight attendant encouraging everyone to take whatever seat they want? It's like chaos paradise on this flight.
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emptywheel @taylormattd The article's error is IMO about as serious as your own.
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emptywheel @taylormattd It didn't include a screen cap? Oh wait. It did.
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emptywheel @taylormattd You agree she was SoS "in 2013"?
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emptywheel @tpabob46 Pretty much what she did; "uniformed military, platinum, gold, 1, 2, 3, 4 are free to board."
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emptywheel @taylormattd Yup. And your tweets, which claimed she wasn't SoS in 2013, was just as inaccurate.
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emptywheel Gate agent rebelling against zone boarding for 50-seat airplane is my hero if the day.
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emptywheel RT @DKThomp: Hillary would b the least popular Democratic nom in modern history *and* have the best approval gap over an opponent https://t…
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emptywheel @taylormattd Sentence you did not screen cap is clearly wrong. But month (which comes from Fox) is key to that.
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JimWhiteGNV I've informed my family they have a choice of what to get me for Father's Day. (1) Chris Archer Stormtrooper bobblehead. or (2) A Boxster
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emptywheel @dispositive Welcome back! easy solution: shop at the Farmers and Coop.
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emptywheel @taylormattd Nat (the correct spelling is "Marcy"): read your tweets. And then either retract or clarify them.
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