The G.W. Bush administration advocates and exercises the Unitary Executive Theory. This is why Gonzales maintained he owed no obligation to appear and testify before Congress and why Rice maintains she need not honor the Congressional subpoena. However, the unitary executive theory may be the Achilles heel of the administration. According to this theory, the President possesses all executive power of subordinates within the Executive Branch which the Constitution does not specify as requiring congressional confirmation. Consequentially, Congress’ oversight of the Iraq war, for example, is severely limited. Only the President, as Commander in Chief, may determine how a war is conducted and when it will end. Congress alone can declare war but lacks any oversight regarding a war's management. Bush cites John Yoo of the DoJ maintaining that military force, like presidential pardons and vetoes, is unreviewable by Congress.

As Commander in Chief, the mens rea, or command responsibility, requirement may cut the Achilles heel of the administration. Mens rea as Command Responsibility states “commanders possess responsibility for war crimes committed by subordinate members of their armed forces or other persons subject to their control.” Actual knowledge of subordinate’s crimes constitutes a minimally sufficient violation of Command Responsibility. However, many argue in favor of a weaker “should have known standard”: commanders possess a positive duty to be informed of subordinates’ activities and are liable for the actions of their subordinates even if no actual acknowledge is acquired to the extent that they are expected to exercise reasonable diligence in learning of, preventing, and punishing unlawful activities of their subordinates. I see no reason why Command Responsibility does not apply to the President qua Commander in Chief whereas it does apply to commanders in the field.

The Red Cross repeatedly notified the Pentagon and the White House of abuses at Abu Ghraib. After repeated failures by the White House and Pentagon to take action, the Red Cross notified Michael Moore (if I remember correctly) who was filming his documentary Fahrenheit 9/11. Furthermore, the Pentagons’ own report found that only 40% of Marines and 55% of Army soldiers would report a member of their unit for killing or wounding an innocent civilian and that more than 40% of Marines and soldiers said torture is justifiable in some cases. Of course the Pentagon is saying the study reflects the effects of battle fatigue and not any form of indoctrination or potential to commit war crimes. President Bush wrote in response to the McCain Detainee Amendment:
“The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.”

The President may be impeached for “high crimes and misdemeanors”. The Unitary Executive Theory endorsed by the Bush administration provides a rich legal basis to hold the President to Command Responsibility. I say allow the President his total executive power of subordinates. Then Congress can impeach him citing his own legal theory.
Bush’s Guilty Mind

The GW Bush administration advocates and exercises according to the Unitary Executive Theory. The unitary executive theory may be the Achilles heel of this administration. Relying upon the “Take Care Clause” and the Vesting Clause of Article II of the Constitution, the President possesses all executive power of subordinates within the Executive Branch. Congressional oversight, therefore, is restricted as specifically delineated by the Constitution. This is why Gonzales maintained he owed no obligation to appear before Congress and why Rice maintains she need not honor the Congressional subpoena. Furthermore, Congress’ oversight of the Iraq war is several limited. Only the President, as Commander in Chief, may determine how a war is conducted. Bush cites John Yoo of the DoJ maintaining that military force, like presidential pardons and vetoes, is unreviewable by Congress.

As Commander in Chief, the mens rea, or command responsibility, requirement may cut the Achilles heel of the administration. Mens rea as Command Responsibility states “commanders possess responsibility for war crimes committed by subordinate members of their armed forces or other persons subject to their control.” Actual knowledge of subordinate’s crimes constitutes a minimally sufficient violation of Command Responsibility. However, many argue in favor of a weaker “should have known standard”: commanders possess a positive duty to be informed of subordinates’ activities and are liable for the actions of their subordinates even if no actual acknowledge is acquired to the extent that they are expected to exercise reasonable diligence in learning of, preventing, and punishing unlawful activities of their subordinates. I see no reason why Command Responsibility does not apply to the President qua Commander in Chief whereas it does apply to commanders in the field.

The Red Cross repeatedly notified the Pentagon and the White House of abuses at Abu Ghraib. After repeated failures by the White House and Pentagon to take action, the Red Cross notified Michael Moore (if I remember correctly) who was filming his documentary Fahrenheit 9/11. Furthermore, the Pentagons’ own report found that only 40% of Marines and 55% of Army soldiers would report a member of their unit for killing or wounding an innocent civilian and that more than 40% of Marines and soldiers said torture is justifiable in some cases. Of course the Pentagon is saying the study reflects the effects of battle fatigue and not any form of indoctrination or potential to commit war crimes. President Bush wrote in response to the McCain Detainee Amendment:
“The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.”

The President may be impeached for “high crimes and misdemeanors”. The Unitary Executive Theory endorsed by the Bush administration provides a rich legal basis to hold the President to Command Responsibility. I say allow the President his total executive power over subordinates (that is do not legally challenge it in court), then impeach him citing his own legal theory.