FUNNY TV COMMERCIAL from the 1970s: a woman drives her Gremlin, the oddly truncated little automobile built by yesteryear's American Motors, into a filling station. The smirking attendant emerges from the building to ask, "Where's the rest of your car, lady?"

I thought of the Gremlin and the smirker the other day when a copy of Bennett Sims's brief book Why Bush Must Go: A Bishop's Faith-Based Challenge (Continuum, $12.95) crossed my desk. Why Bush must go ... indeed! I thought to myself. Why Bush must go ... to jail! That would be, in a just world, the fully realized title of the good bishop's rather too polite tract – not to mention the right and proper destination of a political figure whose life, largely consecrated to ignoring, bending, and defying the law, has now quite predictably culminated in a lawless, needless, useless, hopeless war.

Evidence of George W. Bush's contempt for law – from his early-1970s stiffing of his National Guard obligations and drunk-driving bust in Kennebunkport, Maine, to his shady oil-business deals in the 1980s, then into a millennial presidency raised on electoral fraud and consisting of, inter alia, broken treaties, concentration camps, domestic espionage, and off-the-books torture chambers – is not merely abundant but regnant. Disregard of the law is the man's way, for he is a dark flower of privilege, from the Latin expression for "private law," which is to say, no law. Law is for the lower orders: the people without health insurance, or, these days, jobs; the people who actually fight the Oedipal grudge wars set in motion by the privileged.

At what point do arrogance, entitlement, and ruthlessness shade into criminality? Bush is the mother of all multiple-choice questions on this point, but there is, for me, one Bush misdeed – virtually unnoticed by the mainstream media, which have spent three years ignoring one terrifying breach of democratic principle and American ideals after another – of exceptional egregiousness. That would be the attempt to assassinate Saddam Hussein on the first night of the Iraq war with a missile strike against the Baghdad outlier of Dora Farms, where intel (of course faulty) suggested the Iraqi president was hiding for the night.

It is bad enough that we started a war without provocation, or, indeed, any real justification, against an impoverished and enfeebled country half a world away. It is far worse that we did so by attempting to kill that country's admittedly awful leader in a surprise attack – a favored tactic of the weak and cowardly and a violation of longstanding American policy. Assassination of foreign leaders was first prohibited in the mid-1970s by President Gerald Ford, whose executive order to that effect was reiterated by presidents Carter and, most recently, Reagan. The Reagan order, number 12333 (issued Dec. 4, 1981), is still, nominally, in force.

An exception to the assassination ban is the killing of a hostile foreign leader in time of war. But a war requires, in our constitutional system, a declaration of war by Congress, which holds the exclusive and nondeputable power to declare war. Presidents cannot declare war, and this limitation is not casual. The constitution's framers very much had "the warmaking propensities of absolute monarchs in mind," historian Arthur Schlesinger writes in his sharp new essay War and the American Presidency (Norton, $23.95), when they vested the power to declare war in Congress alone and not in the executive.

But Congress has not declared war in more than 60 years, and power abhors a vacuum. While legislators trembled after 9/11, Bush declared war on his own against Osama bin Laden and al-Qaeda, Saddam Hussein and the lesser Husseins, and terrorism and evil generally. Forceful, yes. But because the president cannot lawfully declare war – nor, by extension, authorize the wartime killings of inconvenient foreign leaders – the so-called war on terror is not merely ill-advised, ill-conceived, and ill-executed, but beyond the ambit of presidential prerogative and, yes, of law.

It is a fine question – to which we will almost certainly never have an answer – whether Bush's flouting of E.O. 12333 is actionable, by, say, impeachment. It was hard not to notice, in watching the recent orgy of chest-thumping televised from Madison Square Garden, that the Republican Party has become the Belligerence Party. No more fiscal responsibility or limited government for them; just the rockets' red glare, and crazy Zell Miller's. And a Congress under Republican control is likely to overlook – to continue to overlook – the fact that George W. Bush is easily the most impeachable president of modern times, a chief executive who violated his oath of office by launching a war not to preserve, protect, and defend constitution and country but to try to slay a psychological family dragon, or gremlin.

Yet justice has a way of being done, if sometimes circuitously. Although Bush may never be impeached or sent to prison for his crimes, he has lost his war in Iraq. This truth is almost never openly spoken, but it is obvious even from the corporate-commercial news reports that strain to suggest otherwise. In this sense, at least, he will always be a prisoner of a war of his own making, and he will be, like the wretches in his secret prisons around the world, an inmate without legal, or any, recourse.