The pretzel is in the hands of the King

An interesting but unfortunately subscriber-only article about Berkeley law professor John Yoo in today's Wall Street Journal; architect of the infamous torture memos, advocate of supreme Presidential authority -- and following from both, someone who probably has to check with lawyers about his exposure to liability anytime he travels to another country:

Mr. Yoo challenges an academic consensus that for decades has promoted international law and other legal restraints on U.S. war making. This thinking grew out of the post-World War II goals of resolving conflict at the United Nations and checking executive-branch excesses during the long nuclear standoff with the Soviets.

The majority view relies heavily on constitutional provisions, such as the one stating that Congress, not the president, has the power "to declare war" and "raise and support armies."

Years before he joined the Bush administration, Mr. Yoo was writing law-review articles arguing that this consensus is at once outdated and -- despite the Constitution's language -- in conflict with the intentions of the founding fathers.

Seeking to play down the seemingly clear wording of the declare-war clause, for example, he argues that Alexander Hamilton and his colleagues adapted the British idea that Parliament could declare the existence of an all-out war, but such a statement wasn't necessary before the king could launch hostilities. Congress, Mr. Yoo contends, was given only two ways to counter the commander-in-chief: impeaching him or cutting off funds for the military. In James Madison's words: "The sword is in the hands of the British king; the purse in the hands of the Parliament. It is so in America, as far as any analogy can exist."

At least he's just one professor, though, right?

In June 2004, the Supreme Court ruled that federal courts can review the grounds for detaining foreign enemy combatants held outside the U.S. The justices separately ruled that American citizens held as terrorism suspects must have access to lawyers and fair hearings.

But beyond providing for the barest sort of judicial oversight, the court seemed to accept the idea that the country is at war and that the president and his subordinates have exceedingly broad latitude to run it. If confirmed, Supreme Court [Chief Justice] nominee John Roberts is expected to be a strong proponent of this view.