Defending the Indefensible: A Correction

Slate's blog on legal issues.
April 6 2008 11:03 AM

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.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.



Scalia’s Liberal Streak

The conservative justice’s most brilliant—and surprisingly progressive—moments on the bench.

Colorado Is Ground Zero for the Fight Over Female Voters

There’s a Way to Keep Ex-Cons Out of Prison That Pays for Itself. Why Don’t More States Use It?

The NFL Explains How It Sees “the Role of the Female”

The Music Industry Is Ignoring Some of the Best Black Women Singing R&B


Theo’s Joint and Vanessa’s Whiskey

No sitcom did the “Very Special Episode” as well as The Cosby Show.


The Other Huxtable Effect

Thirty years ago, The Cosby Show gave us one of TV’s great feminists.

Cliff Huxtable Explains the World: Five Lessons From TV’s Greatest Dad

Why Television Needs a New Cosby Show Right Now

  News & Politics
Sept. 18 2014 8:20 PM A Clever Attempt at Explaining Away a Vote Against the Farm Bill
Sept. 18 2014 6:02 PM A Chinese Company Just Announced the Biggest IPO in U.S. History
The Slate Quiz
Sept. 18 2014 11:44 PM Play the Slate News Quiz With Jeopardy! superchampion Ken Jennings.
  Double X
Sept. 18 2014 8:07 PM Crying Rape False rape accusations exist, and they are a serious problem.
  Slate Plus
Behind the Scenes
Sept. 18 2014 1:23 PM “It’s Not Every Day That You Can Beat the World Champion” An exclusive interview with chess grandmaster Fabiano Caruana.
Brow Beat
Sept. 18 2014 4:33 PM The Top 5 Dadsplaining Moments From The Cosby Show
Future Tense
Sept. 18 2014 6:48 PM By 2100 the World's Population Could Be 11 Billion
  Health & Science
Sept. 18 2014 3:35 PM Do People Still Die of Rabies? And how do you know if an animal is rabid?
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.