During the 2004 election, George W. Bush famously proclaimed that he didn't have to ask anyone's permission to defend America. Does that mean he can attack Iran without having to ask Congress? A new Congressional resolution being drafted by Representative Peter DeFazio, a Democrat from Oregon, can be a vehicle to remind Bush that he can't.

Bush is calling news reports of plans to attack Iran "wild speculation" and declaring that the United States is on a "diplomatic" track. But asked this week if his options included planning for a nuclear strike, he repeated that "all options are on the table."

The President is acting as if the decisions that may get us into another war are his to make and his alone. So the Iran crisis poses not only questions of military feasibility and political wisdom but of Constitutional usurpation.

Bush's top officials openly assert that he can do anything he wants--including attacking another country--on his authority as Commander in Chief.

Last October, Secretary of State Condoleezza Rice was asked by members of the Senate Foreign Relations Committee whether the President would circumvent Congressional authorization if the White House chose military action against Iran or Syria. She answered, "I will not say anything that constrains his authority as Commander in Chief."

When pressed by Senator Paul Sarbanes about whether the Administration can exercise a military option without an authorization from Congress, Rice replied, "The President never takes any option off the table, and he shouldn't."

The founders of the American Republic were deeply concerned that the President's power to make war might become the vehicle for tyranny. So they crafted a Constitution that included checks and balances on presidential power, among them an independent Congress and judiciary, an executive power subject to laws written by Congress and interpreted by the courts, and an executive power to repel attacks but not to declare or finance war.

But the Bush doctrine of pre-emptive war, as laid out in the 2002 National Security Strategy of the United States and reiterated in 2006, claims for the President the power to attack other countries--like Iran--simply because he asserts they pose a threat. It thereby removes the decision of war and peace from Congress and gives it the President. It is, as Senator Robert Byrd put it, "unconstitutional on its face."

Congressional Response

DeFazio is now preparing a resolution underscoring the fact that the President cannot initiate military action against Iran without Congressional authorization. He is seeking support from other House members.

"The imperial powers claimed by this Administration are breathtaking in their scope. Unfortunately, too many of my colleagues were willing to cede our constitutional authorities to the President prior to the war in Iraq. We've seen how that turned out," DeFazio told The Nation. "Congress can't make the same mistake with respect to Iran. Yet the constant drumbeat we're hearing out of the Administration, in the press, from think tanks, etc., on Iran eerily echoes what we heard about Iraq.

"It likely won't be long until we hear from the President that he can take pre-emptive military action against Iran without Congressional authorization, which is what he originally argued about Iraq. Or that Congress has already approved action against Iran via some prior vote, which he also argued about Iraq," DeFazio said. "That is why it is so important to put the Administration, my colleagues and the American people on notice now that such arguments about unilateral presidential war powers have no merit. Our nation's founders were clear on this issue. There is no ambiguity."

There is considerable evidence that military action against Iran has already started. Air Force Col. Sam Gardiner (ret.) told CNN that "the decision has been made and military operations are under way." He said the Iranian ambassador to the International Atomic Energy Agency recently told him that the Iranians have captured dissident units "and they've confessed to working with the Americans." Journalist Seymour Hersh wrote in The New Yorker that "American combat troops are now operating in Iran." He quotes a government consultant who told him that the units were not only identifying targets but "studying the terrain, and giving away walking-around money to ethnic tribes, and recruiting scouts from local tribes and shepherds."

Representative Dennis Kucinich of Ohio has written to Bush, noting, "The presence of US troops in Iran constitutes a hostile act against that country" and urged him to report immediately to Congress on all activities involving American forces in Iran.

Bipartisan Concern

Concern about presidential usurpation of the war power is not just a partisan matter. Former Vice President Al Gore this year joined with former Republican Congressman Bob Barr to express "our shared concern that America's Constitution is in grave danger." As Gore explained, "In spite of our differences over ideology and politics, we are in strong agreement that the American values we hold most dear have been placed at serious risk by the unprecedented claims of the Administration to a truly breathtaking expansion of executive power."

One of the stunning revelations of recent news stories is that top military brass are strongly opposed to the move toward military strikes. The Washington Post quotes a former CIA Middle East specialist that "the Pentagon is arguing forcefully against it." According to Hersh's reporting in The New Yorker, the Joint Chiefs of Staff "had agreed to give President Bush a formal recommendation stating that they are strongly opposed to considering the nuclear option for Iran."

The Bush Administration is putting military officials in a position where they will have to decide whether their highest loyalty is to the President or to the country and the Constitution. Lieut. Gen. Gregory Newbold (ret.), who recently called for the resignation of Defense Secretary Donald Rumsfeld, has criticized the US military brass for its quiescence while the Bush Administration pursued "a fundamentally flawed plan" for "an invented war." Now he is calling on serving military officers to speak out.

The "generals' revolt" has not publicly targeted the plans to attack Iran. But its central critique concerns Rumsfeld's disregard for the military's evaluation of the costs of the Iraq War and the scale of commitment it would require. If a similar disregard of the costs of an attack on Iran aren't already the subtext of their action, it certainly is a logical concomitant.

The American people are by now deeply skeptical of Bush's reliability in matters of war and peace. In a recent Los Angeles Times poll, 54 percent of respondents said they did not trust President Bush to "make the right decision about whether we should go to war with Iran," compared with 42 percent who did. Forty percent said the war in Iraq had made them less supportive of military action against Iran. But Americans are being systematically deprived of any alternative view of the Iranian threat, the consequences of American policy choices or the real intentions of the Bush Administration.

Smoking Gun, Mushroom Cloud

Congress and the military allowed the Bush Administration to bamboozle the country with false information and scare talk prior to the Iraq War--and they share responsibility for the resulting catastrophe. Now we're hearing again about a smoking gun that will be a mushroom cloud. It's up to Congress and the military to make it clear that the President does not assume monarchical power over questions of war and peace.

Congress and the American people--who should make the decision about war and peace--haven't even heard the forceful arguments of military officials against military strikes. Calling those Pentagon officials to testify--and protecting them against Administration reprisals--would be a good place to start.

Colonel Gardiner, who specializes in war games and conducted one for Harper's magazine that simulated a US attack on Iranian nuclear facilities, concluded, "It's a path that leads to disaster in many directions." Unless preceded by a UN endorsement or an imminent Iranian attack, it's also aggression, a war crime under international law and the UN Charter. If Bush or his subordinates have already ordered military operations in Iran, it should be considered a criminal act.

The DeFazio resolution could provide a rallying point for a coalition to act pre-emptively to put checks and balances on the Bush Administration's usurpation of constitutional powers. Indeed, the growing evidence that the United States is already conducting military operations in Iran demonstrates the urgency of placing limits on executive power. Anyone who wants to avoid national catastrophe should get busy defending it. Otherwise, George Bush's legacy may be: "He bombed Iran, and the collateral damage wiped out the Constitution."

Legal scholar Brendan Smith and historian Jeremy Brecher are the editors, with Jill Cutler, of In the Name of Democracy: American War Crimes in Iraq and Beyond (Metropolitan/Holt, 2005) (www.americanempireproject.com), and the founders of www.warcrimeswatch.org.

© 2006 The Nation