Somewhat less exasperating, though equally perplexing, is the relation between Yoo's exaltation of presidential power and his denigration of the treaty power. This is a strange coupling, for one thing, because the treaty power obviously increases executive authority, giving the President a hand in lawmaking that he would otherwise lack. In addition, Presidents of both parties have claimed that treaties, even in the absence of implementing legislation by Congress, provide sufficient authority to deploy US troops overseas. And like it or not, international organizations created by treaties are frequently used by executive officials, in virtually every democratic country, to do an end run around their national legislatures. Both Truman in the Korean War and Clinton in Kosovo claimed that US military action, without Congressional approval, had been authorized by the United Nations.

Needless to say, Yoo would denounce this search for authorization from foreign sources, believing that the President has the inherent authority to go to war whenever and wherever he wants. But his way of thinking, whatever else we may want to say about it, makes it impossible to understand the actual political dynamics by which the executive branch has gradually weakened Congress's checking power, a process in which, as an empirical matter, the making, interpretation and implementation of treaties (not to mention the increasing importance of international organizations) have played an important role. Of course, Yoo has no interest in helping us understand how we have traveled from there to here. Constitutional change holds no mysteries for him because from his perspective America is blessed with an imperishable Constitution, and presidential powers today, even after 9/11, remain pretty much what they were meant to be more than two centuries ago.

Yoo's legal theory, it should be said, is as dubious as his historical scholarship. For starters, he has a zero-sum conception of the government's foreign-policy powers. He expresses bafflement at James Wilson, who both favored a strong executive and gave a major role in foreign affairs to Congress. Wilson's support for Congressional war powers, Yoo says, "does not square perfectly with his broad thoughts in favor of a strong executive expressed during the ratification debates." But the enigma dissolves if power-sharing can actually increase the capacity of the executive to achieve its aims. Executive power hinges upon the President's capacity to mobilize support and voluntary cooperation for its projects. That such power might be increased by accepting Congressional oversight and input is self-evident, although apparently incomprehensible to Yoo.

Power-sharing can increase overall power in another way as well. Human beings do not always perform best when unwatched and uncorrected. Cheney has repeatedly argued that the Administration can get "unvarnished" advice only under conditions of the strictest confidentiality. And there is something to this argument. But it is equally obvious that secrecy has its own pathologies, including a tendency to perpetuate mistaken policies long after they could have been profitably corrected. Hence, an executive branch under serious scrutiny by a well-informed legislature with real power to push back will not necessarily perform more poorly than an executive branch sheltered from criticism and control.

If the executive is not compelled by Congress and the courts to give plausible reasons for its actions, it may soon have no plausible reasons for its actions. It will lash out violently in the "war on terror," but its choices will feel distressingly arbitrary. It will not establish an intelligent list of priorities, keep its powder dry or allocate scarce resources in a prudent and effective manner. Administration spokesmen have repeatedly explained that since 9/11 the risks of inaction have become greater than the risks of action. And Yoo agrees: "The costs of inaction can be extremely high--the possibility of a direct attack on the United States and the deaths of thousands of civilians." But the inadequacy of this reasoning should be obvious.

The leap from inaction to action cannot possibly, on its own, guarantee a reduction of risk. Precipitous action may well produce deep commitments from which it will prove impossible or immensely costly to extricate ourselves. In a world of scarce resources and opportunity costs, moreover, every decision to act is a decision not to act. To commit Arabic speakers to the Iraqi theater, for example, is to withdraw them from other tasks, such as the manhunt for Osama bin Laden. To act more forcefully in one arena is to act less forcefully in another. Such trade-offs are seldom desirable, but they are often inevitable.

By dismantling checks and balances, along the lines idealized and celebrated by Yoo, the Administration has certainly gained flexibility in the "war in terror." It has gained the flexibility, in particular, to shoot first and aim afterward. It has acted on disinformation and crackpot theories and utopian expectations that could perhaps have been corrected or moderated if traditional decision-making protocols had been respected and key policy-makers had not silenced dissident voices and sequestered themselves in an echo chamber. Yoo sees no danger in allowing a poorly educated and sketchily briefed President, perhaps surrounded by yes men and fed picked-over intelligence, to define unilaterally the principal threats facing the country. He does not worry about irreversible decisions taken impetuously and without eliciting a second opinion. But if the misbegotten Iraq War proves anything, it is the foolhardiness of allowing an autistic clique that reads its own newspapers and watches its own TV shows to decide, without outsider input, where to expend American blood and treasure--that is, to decide which looming threats to stress and which to downplay or ignore.

Yoo begins with the premise that the Constitution gives the President virtually unchecked power over foreign affairs. This is an alarming thesis, for all the reasons addressed. But it becomes even more ominous in the post-9/11 context. In the "war on terror," as Yoo is the first to admit, the foreign front and the home front have become harder to distinguish. Infiltrators and saboteurs are no longer minor and peripheral to the war effort. They are the main enemy, and the battlefield on which we meet them emphatically includes US soil. As a result, the President's war powers, if grotesquely distended and freed from oversight as Yoo would like, threaten to overwhelm and submerge the Constitution, not just abroad but also domestically. Only if our rulers were infallibly clairvoyant would it be safe to gamble in this reckless way not merely with our personal liberties but also, and perhaps more important, with our country's national security in an age of multiple, unfamiliar and--we have every reason to fear--still metastasizing threats.

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