The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (Paperback)

Of course, much of Yoo's work for the Justice Department is indeed still classified, most important his opinions on NSA spying and those justifying the legality of a military trial system at Guantanamo Bay. Nevertheless, Yoo's new book is marketed as a defense of the administration's post-9/11 conduct. Yet the book doesn't really accomplish that, or even attempt it. Rather, it is a sometimes careful, academic work about presidential powers in wartime.

In particular, the book argues that the Constitution gives the president a much larger role in foreign affairs and military operations than the other two branches of the federal government, that the president does not need a congressional declaration of war before placing troops on the ground and that treaties ratified by the Senate have no legal impact unless Congress explicitly passes laws saying that they do.

In advancing these claims, the book is burdened by its strange attempt to mix constitutional claims grounded in the Founders' intent in 1787 with the practicalities of living in an age of terrorism. Either one can take the position of such conservative icons as Robert Bork and Justice Antonin Scalia -- that the original intentions of the Constitution's authors bind us today and changes can only come through amendment -- or hold the view of more liberal figures such as Justice Stephen Breyer that practical, functional considerations create a living Constitution that adapts as times change. Both are perfectly plausible. What isn't credible is a theory that cherry-picks from the two to advance a particular thesis. And that's exactly what Yoo does at times.

Yoo is at his best in skewering the academics who believe that Congress must formally declare war before the president can engage in military operations. After all, hundreds of U.S. military operations have occurred without a declaration of war. Yoo's argument here, and the history he marshals, is contribution enough. There have been no declarations of war since World War II, yet a majority of academics today still adhere to the position that such a declaration is required before troops can be deployed.

Unfortunately, Yoo goes further, explaining that the president would not be made all powerful by such a broad reading of his war-making power because Congress could cut off funds or pass legislation to end the war. Yet it isn't remotely plausible that Congress's funding power can check the president. As Yoo's main academic opponent, former Stanford Law School dean John Hart Ely explains in his book War and Responsibility, "Once the president had committed 'our boys' to the battlefield, it would become emotionally and politically difficult to vote to cut off their 'support.' " If the legislative branch really did use its funding power in the way Yoo advertises, it would destroy his thesis, which is built on the speed, unity and decisiveness of the executive branch compared to Congress. It is jarring to watch a sober realist like Yoo ignore the obvious reality that Congress is incapable of defunding a war when troops are already engaged.

In the end, the most glaring failure of the book is its one-sided attack on the courts and Congress, with no real attention paid to the failures of the executive branch. The underlying message is that the executive doesn't need checks on its activities, but that the other branches consistently do. Yet presidents of both parties have made tremendous mistakes, and recent events have shown that claims of unchecked power can lead to massive abuse. Yoo even unwittingly refers to at least one recent miscalculation, in words that already date the book, by stating that Iraq was "potentially armed with weapons of mass destruction."

If scholars like Yoo want to exalt the executive, they will have to do a better job of figuring out ways to develop checks and balances inside the executive branch. Otherwise, faith in the executive is little more than a recipe for unaccountable and poor decisionmaking. This wasn't the way the Constitution was written; and I, for one, have more faith in our Founders than that.

Reviewed by Neal Katyal
Copyright 2006, The Washington Post. All Rights Reserved. --This text refers to the Hardcover edition.

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