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Glenn Greenwald points to this appalling quote from John Yoo, one of the men behind this administration's approach to law:

UC Berkeley law Professor John Yoo, who as a Justice Department lawyer was one of the Bush administration's chief legal theorists, summarized its view in his forthcoming book, "War by Other Means":

"We are used to a peacetime system in which Congress enacts the laws, the president enforces them, and the courts interpret them. In wartime, the gravity shifts to the executive branch.''

If a political science student of mine wrote that in a paper, I would fail them. There is nothing - and by nothing, I really do literally mean NOTHING - in the Constitution of the United States that supports his view. It's simply not there.

The word "war," for example, is only used twice in the Constitution, and both times it is found in Article I, the section outlining the powers of the legislative branch. Here, for the record, is how it appears in the context of Article I, Section 8, where the specific powers of Congress are enumerated:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Notice that this gives Congress considerable power over the armed forces. Notice also that it gives them this power in times of great crisis, including war. And notice that there are no sections indicating that these powers at times shift to the executive branch.

The second instance of the use of the word "war" is found in Article I, Section 10, in this case in an injunction against the states:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Notice again that it is the consent of Congress, and ONLY the Congress, that is required to authorize state action, even in times of great emergency.

"But what of Article II's grants of executive authority," you ask? Here, for the record, is the complete description of the president's role as Commander in Chief, the only portion of Article II pertaining to powers in time of war:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

Now, as any good conservative legal scholar would (or should I say "would once have told?") tell you, if it isn't in the plain language of the constitution, it isn't there. Period. So apparently Yoo, along with this administration, are no longer relying on that philosophy for their interpretation of the constitution. Instead, to make this interpretation work, they have to fall back on the idea of our constitution as a "living" document, one whose interpretation must be open to changing historical circumstances.

9/11, I'm sure Yoo would argue, changed everything. We live, he would surely maintain, in a world whose speed and technology our Founding Fathers could neither have imagined nor comprehend. Today's threats are so unique, so serious, and so unforeseen that we have no choice but to defer to the executive. Surely, Yoo would argue, our Founding Fathers would understand that?

Only there's one problem with that: they wouldn't. Although the specifics of today's world obviously were unknown to the men who wrote our constitution, the issues we face are not really all that new. The specifics of war may have changed greatly, but its general nature remains the same, and our constitution, we must remember, was in part the direct outgrowth of a long and costly war of independence. War was a subject the men who wrote it new well, and as a result was something they considered carefully when drafting the text.

Here, as just one example, is part of the discussion of war found in Federalist 64. In this section, John Jay discusses the decision to share the power to make treaties between the Senate and the Executive.

It seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate despatch are sometimes requisite. These are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular Assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest.

They who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious. The loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. For these, the President will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them. Thus we see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other.

Jay's words are not just an explicit rejection of Yoo's idea that that in times of war the "gravity" shifts to the executive branch, they're a rejection of one of the specific arguments made by this administration. The need for timely, secure, and accurate intelligence, Jay and the Federalists argued, is not sufficient grounds for excluding the legislative branch from making decisions about war and peace.

This shouldn't be hard to understand. This isn't hard to understand. Why then do I feel like there are so few who understand it?