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But legal scholar and Harper's contributor Scott Horton disagrees. "The Youngstown case is considered the lodestar precedent addressing the President's invocation of Commander-in-Chief powers away from a battlefield," Horton told me via email.
"Justice Jackson's opinion is the most persuasive of the opinions justifying the decision," Horton said. "If you examine any treatise on national security law, you'll find them at the core. Moreover, the Supreme Court itself in subsequent opinions has highlighted their importance.
"It's obvious that Yoo failed to cite them not because he believed they were off point (as he rather lamely suggests), but because they strongly contradicted the premise he was articulating.
"But a lawyer crafting an opinion has a duty of candor that requires that he identify and distinguish adverse precedent that a court might consider controlling. In essence, Yoo was free to articulate whatever cockeyed theories he wanted. He was not free to suppress the existence of Supreme Court authority that went in the opposite direction. But that's exactly what he did."
Yoo's Defense
In his book, Yoo criticized the OPR investigation, DOJ officials who launched the "ethics" probe "responded reflexively to political controversy" and that members of the legal community who blasted his work were former Clinton officials "who overlooked their administration's own legal views, which, on the matter of executive authority in war and national security, were nearly identical" to the Bush administration's views.
The DOJ officials "certainly did not check the bona fides of the critics who first made the accusation that not citing Youngstown amounted to a failure of professional responsibility."
"I cannot help but think that Justice Department officials panicked when the Abu Ghraib scandal erupted, and then were misled by the charges about ethics," Yoo wrote. "Claims about 'ethics' always emerge as a weapon, both on the left and on the right, when the party in power cannot be budged on policy specifics. Justice officials surely did not consider the long-run implications of what they were doing ... If [the Justice Department] were to accept that Youngstown controlled the executive branch in war, the President's powers would be crippled."
It's still unclear if, and when, the report will be released.
In a letter sent to Durbin and Whitehouse on Monday, Assistant Attorney General Ronald Welch said, "OPR ... shared its initial draft with the Central Intelligence Agency for a classification review" and "the CIA requested an opportunity to provide substantive comment on the report."
"OPR has since provided the revised draft for both classification review and substantive comment," Welch wrote. "The Attorney General and Deputy Attorney General will have access to whatever information they need to evaluate the final report and make determinations about appropriate next steps."
Jason Leopold is editor in chief of The Public Record, www.pubrecord.org.
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