Our Framers could not have foreseen the present age of nuclear missiles and cataclysmic terrorism. But they understood political accountability, and—as their deliberations in Philadelphia attest—they knew that sending Americans into battle demanded careful reflection and vigorous debate. So they created a simple means of ensuring that debate: in Article I, Section 8, of the Constitution they gave Congress the power to declare war.

Declarations of war may seem to be relics of a bygone era—a time more deeply steeped in ritual, when ambassadors in frock coats delivered sealed communiqués to foreign courts. Yet a declaration of war has a great deal to recommend it today: it forces a deliberate, public conversation about the reasons for going to war, the costs, the risks, the likely gains, the strategies for achieving them—all followed by a formal vote.

[...]

[A] more public vetting of the decision to go to war, culminating in a solemn declaration of war by Congress, would most likely ensure stronger public support for the war, by involving the people in the decision and assuring voters that the war had not been launched hastily or under false pretenses. Setbacks and sacrifices might be less surprising and more easily accepted. Because the declaration process would address problems beforehand, it would help us win wars once they started.

The process and the declaration itself would strengthen American credibility—and negotiating power—in the diplomatic run-up to war. Troublemakers abroad have seen the pressure that our government feels to cut and run when conflict turns ugly. Beyond that, many have doubted that the White House would follow through on its threats at all. Saddam Hussein apparently didn't think either President Bush would have the support to attack him. Nor did the Haitians think President Clinton had the stomach for war after he precipitately yanked U.S. troops out of Somalia. But if a president ran the declaration gauntlet and built public support, he would gain enormous credibility for his threats.

And in those cases where the president was unable to persuade Congress to make war, the United States would almost always be better off. The legislation we propose would not diminish the president's considerable stature as commander in chief as he made his case to Congress. If his arguments still failed, the case could not have been very compelling. Far better if we knew that before the killing began.

I've been bitching about this since back during Vietnam (I did my bitching from the cradle, you understand). Here's what I wrote after 9/11:

If we are going to engage in a war, then it needs to be an officially declared war. The only entity in the United States that can declare war is the Congress, and if it is to be war, then they alone can say it. This is not the Gulf of Tonkin, some flimsy puffed-up excuse for hostilities -- we've been hit hard on our own shores, and a Declaration of War, if military action is necessary, is certainly justified. But don't ask us, the American people, to sacrfice without declaring war, and don't ask the people to sacrifice without asking the same of corporations.

It's one thing for the President to arrogate for the Executive powers that aren't explicitly defined, or about which there can be reasonable debate as to the purpose of the founders, but it's another thing entirely for the Imperial Presidency to, with the complicity of many Congresses over the years, take to itself responsibilities which are clearly and explicitly given to Congress in the Constitution.

I mean, what part of

Congress shall have the power ... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water...

does John Yoo not understand?

Speaking of Yoo, there's an informative review of his latest book in the New York Review of Books, which takes pains to sum up Yoo's positions on torture (he's for it), Presidential power (he's against almost all restrictions on it), and war powers (he thinks it's the President's perogative, of course). The reviewer, David Cole, points out that

In all likelihood, the policies and attitudes Yoo has advanced have made the country less secure. The abuses at Guantánamo and Abu Ghraib have become international embarrassments for the United States, and by many accounts have helped to recruit young people to join al-Qaeda. The US has squandered the sympathy it had on Sep- tember 12, 2001, and we now find ourselves in a world perhaps more hostile than ever before.

With respect to detainees, thanks to Yoo, the US is now in an untenable bind: on the one hand, it has become increasingly unacceptable for the US to hold hundreds of prisoners indefinitely without trying them; on the other hand our coercive and inhumane interrogation tactics have effectively granted many of the prisoners immunity from trial. Because the evidence we might use against them is tainted by their mistreatment, trials would likely turn into occasions for exposing the United States' brutal interrogation tactics. This predicament was entirely avoidable. Had we given alleged al-Qaeda detainees the fair hearings required by the Geneva Conventions at the outset, and had we conducted humane interrogations at Guantánamo, Abu Ghraib, Camp Mercury, and elsewhere, few would have objected to the US holding some detainees for the duration of the military conflict, and we could have tried those responsible for war crimes. What has been so objectionable to many in the US and abroad is the government's refusal to accept even the limited constraints of the laws of war.

Cole summarizes Yoo's legal philosophy concerning the Executive branch: "The president can do whatever the president wants." (Poor George W. Bush heard this, and marveled to Bob Woodward about how he, as President, wasn't required to explain anything he did. He's finding out now the ultimate result of taking that kind of arrogant attitude in a modern democracy.)