Defending the Indefensible: A Correction

I appreciate Marty’s effort to be conciliatory, but in the process he very seriously misrepresented my views and those of a frequent collaborator. Marty says that he is “heartened that [I am] no longer defending the idea that the Yoo/Addington theories are the better readings of the text, structure and history.” And he cites a blog post by Jack Balkin, which criticizes an op-ed that we published in the Wall Street Journal almost four years ago.  However, as Balkin’s post makes very clear, that op-ed did not defend the Yoo/Addington theory. It instead argued that Yoo’s memos fell into OLC’s tradition of pro-executive lawyering, and should be understood within the context of this tradition, whether or not the legal reasoning was correct (and we did not say that the reasoning was correct).

Jack criticized our argument, and although I don’t agree with all of his criticisms (he mistakenly implies that the Bush OLC was the first OLC to fail to cite the Youngstown case in the course of making an aggressive interpretation of the president’s constitutional powers, when the Clinton OLC did the same thing ), I appreciate that he resisted the impulse to tar us with views that we were hoping to put into context but not to defend.