In practice, the Bush administration has failed -- or in certain cases simply refused -- to keep the intelligence committees informed on some of the most important aspects of the Iraq war and the war on terrorism. According to Douglas Jehl of the New York Times, "The restrictions that the White House has imposed on briefings about the C.I.A. detention program" for high-level terror suspects "were described by Republican and Democratic Congressional officials as particularly severe." This, in turn, appears "to have had the effect of limiting public discussion about the C.I.A.'s detention program."

Senate majority leader Harry Reid forced a dramatic closed session of the Senate this fall to demand that the Intelligence Committee investigate the cherry-picking and manipulation of intelligence used to promote the Iraq war. But the administration has refused to provide critical information such as presidential intelligence briefings. According to a recent article by Murray Waas in the National Journal, for example, President Bush was briefed by the CIA on September 21, 2001 -- less than two weeks after 9/11 -- that there was scant evidence of collaboration between Iraq and Al Qaeda. But the Intelligence Committee didn't learn about the briefing until the summer of 2004. The Bush administration is still refusing to provide the President's Daily Brief and dozens of related documents to the Committee.

The Church committee's revelations on such matters as CIA assassination attempts against President Fidel Castro of Cuba, Prime Minister Patrice Lumumba of the Congo, and others led President Gerald Ford to issue Executive Order 11905 in 1976. A section entitled "Prohibition on Assassination" states: "No employee of the United States government shall engage in, or conspire to engage in, political assassination." This order was reiterated by Presidents Carter and Reagan. But after 9/11, according to Washington Post reporter Bob Woodward, President Bush signed an intelligence "finding" directing the CIA to do "whatever is necessary" to destroy Osama bin Laden and his al Qaeda organization. During his 2003 State of the Union address, President Bush bragged of such extrajudicial killings, claiming that more than three thousand suspected terrorists "have been arrested in many countries. And many others have met a different fate. Let's put it this way: They are no longer a problem for the United States."

Making America Safe for Preventive War

The Constitution gives Congress the power to declare war. Since World War II, however, the many armed conflicts in which the U.S. has been involved have been conducted without such a declaration. In 1973, at the height of opposition to the war in Vietnam, Congress tried to reassert some mild constraints on the authority of the President to initiate and conduct wars without Congressional authorization by passing the War Powers Resolution. This required the President to consult with Congress before the start of any hostilities and to remove U.S. armed forces from those hostilities if Congress had not declared war or passed a resolution authorizing the use of force within 60 days. The resolution was vetoed by President Nixon, but Congress overrode the veto.

The Bush administration, however, has asserted almost unlimited powers to make war. In its National Security Strategy of the United States, issued in 2002, it claimed the right to launch preventive wars simply on the basis of the belief in a threat of possible future danger. Condoleezza Rice, then National Security Advisor, put it this way: "As a matter of common sense, the United States must be prepared to take action, when necessary, before threats have fully materialized." As Senator Robert Byrd pointed out in a speech to Congress on January 25, 2005, this doctrine of preventive war "takes the checks and balances established in the Constitution that limit the President's ability to use our military at his pleasure, and throws them out the window… This doctrine of preemptive strikes places the sole decision of war and peace in the hand of the President and undermines the Constitutional power of Congress to declare war."

The War Powers Resolution mattered little in Afghanistan and Iraq, because Congress enthusiastically supported these ventures, passing what political scientist Nancy Kassop, writing in Presidential Studies Quarterly, termed "exceedingly permissive resolutions" that "leave critical decision making to the president's discretion." But it may matter very much in the future. In recent Congressional hearings, for instance, Senator Lincoln Chaffee posed the following question to Rice, now Secretary of State: "Under the Iraq war resolution, we restricted any military action to Iraq. So would you agree that if anything were to occur on Syrian or Iranian soil, you would have to return to Congress to get that authorization?"

She answered: "Senator, I don't want to try and circumscribe presidential war powers. And I think you'll understand fully that the president retains those powers in the war on terrorism and in the war on Iraq."

The Bush administration seems to assert that its powers are sufficient for it to initiate an illegal war of aggression without authorization from either the United Nations or Congress.

Underlying the specific changes in laws, regulations, and their interpretations designed to prevent Congress and the public from controlling or even knowing what the executive branch is doing lies a broader philosophy: That the executive branch is simply not subject to law if it is acting in pursuit of national security -- and that the executive branch is to be the only arbiter of whether it is doing so.

The various manipulations of the law help explain how the Bush administration has been able to engage in what might appear to be illegal activity with such impunity. More important, they help indicate the legal and institutional barriers that the American people need to restore and expand to prevent similar criminal activity by high officials in the future.

Discussion has already started on ways to restore the Bushwhacked constraints on executive power. Legislation co-sponsored by Democratic senator Patrick Leahy and Republican senator John Cornyn, for example, would strengthen the Freedom of Information Act by requiring quick agency response to information requests and an ombudsman to hear public complaints. Recently in the Atlantic Monthly magazine, Leslie H. Gelb and Anne-Marie Slaughter proposed legislation that would forbid military action without a Congressional declaration of war.

Until recently, such proposals might have seemed like pie in the sky, but the national catastrophe in Iraq that has resulted from unchecked presidential power may create a more favorable climate for them. According to John Mueller, a political scientist at Ohio State University who has studied the reactions to past U.S. wars, what you're going to get after the Iraq war is: "‘we don't want to do that again -- No more Iraqs' just as after Vietnam the syndrome was ‘No more Vietnams.'"

Preventing future Iraqs -- future aggressive wars, abuse of civilians, torture of prisoners, and other war crimes -- is not just a matter of changing administrations and foreign policies. It also involves restoring and elevating the legal barriers that once stood in the way of an out-of-control imperial presidency. "Lost powers," usurped by "the institution of the presidency," must be reclaimed by the people and their representatives.

Brendan Smith and Jeremy Brecher are the editors, with Jill Cutler, of In the Name of Democracy, American War Crimes in Iraq and Beyond (Metropolitan, 2005). Brecher, a historian who has authored more than a dozen books including Strike!, writes for the Nation magazine among other publications. For his documentary film work he has received five regional Emmy Awards. Legal scholar Brendan Smith (blsmith28@gmail.com), a former senior congressional aide specializing in defense and human rights policy, is coauthor of Globalization from Below, and has written for the Los Angeles Times, The Nation, and the Baltimore Sun.

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