But what if it weren't? What if the President determined that preserving the safety and security of the United States required actions inconsistent with treaty? This question is anything but hypothetical in the current debate about torture. It's also germane to the legality of the Iraq invasion itself--I've argued that the shift from containment to preemption is consistent with Article 51 of the UN Charter, which cannot force sovereigns to accept a destructive "first bite" by an armed group or state. (There's also the "treaties aren't self executing" argument, which rules out most sanctions for treaty violations.)
So, assume the President, in protecting America and its residents, knowingly chooses a course inconsistent with a ratified treaty. Is that unlawful?
No, though this point is widely misunderstood. Article II, Section 2 of the Constitution makes the President "Commander in Chief of the Army and Navy of the United States." In that role, Bush lawfully can act inconsistent with treaties because the Constitution is "the supreme Law of the Land":
It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights - let alone alien to our entire constitutional history and tradition - to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.Reid v. Covert, 354 U.S. 1, 17 (1957) (plurality opinion) (footnotes omitted). See also Doe v. Braden, 57 U.S. (16 How.) 635, 656 (1853) ("The treaty is . . . a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.").
Contrary to unsourced lefty assertions, this point is well settled. Indeed, Congress itself often recognizes that the Constitution trumps treaties, for example when ratifying the Chemical Weapons Convention during the Clinton Administration (S. Res. 75, 105th Cong., 1st Sess., Section 12):
Primacy of the united states constitution:That resolution passed 74-26, 144 Cong. Rec. S 3651 (April 24, 1997). Democrats voting "yea" included Senators Boxer, Feingold, Inouye, Kennedy, Kerry, Reid and Rockefeller.
Nothing in the Convention requires or authorizes legislation, or other action, by the United States prohibited by the Constitution of the United States, as interpreted by the United States.
How quickly they forget. Obviously, a new and dangerous mutation of WMD Amnesia.