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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bmaz @GregLBean Greg, have you been having any issues getting into Emptywheel blog? We have noticed activity, not sure it is you. Thanks.
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JimWhiteGNV Today would be a very good day to leak the entire Senate Torture Report. Not just the summary, the whole damn thing...
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bmaz @benjaminwittes @csoghoian @lawfareblog Hey, if Emptywheel can do it, you can too.
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bmaz @kdrum Been hoping for the best. Good weekend of football for you to lay around and watch.
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bmaz @benjaminwittes @csoghoian Gotta say, @emptywheel is not a whiskey girl, she is really a beer lady. I am the whiskey/bourbon one.
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bmaz @steve_vladeck @emptywheel By the way, I don't like Brehm. But it strikes both it+Ali presenter abetter cases than Hamidullan appears to.
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emptywheel I think the Lions just saved $5,000 in airfare to London. Maybe they can put that to paying off people's H2O bills? https://t.co/Jq6aG7yZ47
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bmaz @steve_vladeck @emptywheel Like I said, I used (perhaps too loosely) that as shorthand for the entire process.
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bmaz @steve_vladeck @emptywheel Should US soldiers have the same exposure in all foreign jurisdictions, or are we just exceptional that way?
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emptywheel @benjaminwittes Except I don't drink whiskey. I wonder if @ageis drinks whiskey? @csoghoian
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bmaz @steve_vladeck @emptywheel Doesn't it trouble you that the US criminal code+procedure is going to cover the stated "battlefield" acts?
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