Superstar desi lawyer Neal Katyal, who will later this year be representing Osama Bin Laden’s former driver in a Supreme Court case, had a book review in yesterday’s Washington Post. The book he was reviewing was a new one by John Yoo titled, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11. Katyal cleverly uses his book review to slam Yoo and his conservative policies, while also adding to the very relevant debate about what limits should be imposed on the powers of the Executive.

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.

…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.”

It seems very likely that this book review also gives us a small preview of what some of Katyal’s arguments in front of the Supreme Court may be in Hamdan v Rumsfeld. I am just counting the weeks until Nina Totenberg wakes me with details of Katyal’s fight in front of the Roberts court.