John McCain: I Would Block Susan Rice For Secretary Of State

[anvi]

The Constitution and accompanying U.S. law permitted the president to conduct the Libya operation without the consent of Congress because it was undertaken in compliance with a treaty obligation, which the Constitution fully recognizes.  In addition, the Libya operation constituted very short-term and low-grade bombing and assistance in refueling (I know some enlisted people who participated in the operation).  That was not a worse foreign policy decision than undertaking a full-scale invasion of a country, followed by a long-term occupation, when the major players of the American intelligence community were in considerable disagreement with one another about whether Iraq actually had any WMDs in the first place.  

[anvi]

SJoyce,

Sure.  Article 6, paragraph 2 of the Constitution makes treaty obligations the supreme law of the land, equal in force to the Constitution itself and anything else in the Constitution "notwithstanding."  The Libya operation was authorized by an article 42 action of the United Nations.  The U.S. ratified the U.N. charter by overwhelming majorities in 1945, making us a treaty member of that organization.  The U.N. Participation Act of 1945, also approved by overwhelming majorities of both chambers in 1945, specifically exempts the president from acquiring the consent of Congress in committing military forces in the case of U.N. Article 42 actions (see section 6 of this law).  On top of that, the War Powers Act of 1973 recognizes this very exemption (see section 8.a.2).  The Libya operation was entirely legal under the Constitution and all relevant U.S. law.

But even if one didn't know the specifics of all this, would the House really have passed up a chance to impeach Obama in 2011, particularly given the fact that the Pubs had the sympathy of some House Dems on the matter, had Obama really committed a clear Constitutional violation?  All they did was huff and puff about it and pass some meaningless resolution.  It's perfectly legitimate to question the wisdom of the Libya operation, but it's legality is, as a matter of constitutional law, clear-cut.

[anvi]

UN Article 42 actions are not "authorizations" for nations to go to war, they are actions voted on by the member states as participants in a treaty.  And the U.N Participation Act, backed up by the War Powers Act, both approved by Congress, as above, explicitly exempt the president from requiring the consent of Congress if his commission of military action does not exceed what is required under UN Article 42 actions. No "informal" amendment of the Constitution is required since the Constitution already recognizes the full force of law in treaty obligations.

[anvi]

Yeah, McCain and Graham are vowing to block Rice for making a public statement based on information provided to her by the CIA.  Kind of a lousy standard, isn't it?   

[anvi]

I have an enormous amount of respect, admiration and gratitude for Senator McCain and all he has done for the country.  Had he won the 2000 GOP nomination, I would have given very serious consideration to voting for him.  I just think his call on this one misses the mark.  Doesn't diminish the very high esteem I've always held of him at all.

[anvi]

SPC. once again, the UN Participation Act does not trump the Constitution.  The Constitution recognizes that treaties have the full force of law equal in stature to the Constitution itself (Article 6 Paragraph 2 Clause 2).  And treaties are treaties; membership obligates the member states to abide by their terms.  UN Article 42 actions, combined with the provisions of Article 48, obligate, and do not merely "authorize," the member states that are identified to provide forces according to those provisions that are voted on by that body.  The U.S. not only has a regular vote in the UN General Assembly, but it is a Security Council member and can veto both proposed Article 42 actions and the specifications of Article 48 which define the constitution of armed forces in conflicts. But if the U.S. agrees to approve Article 42 actions, it is legally bound, both by treaty terms and the Constitution itself, to comply with them.  In both ratifying the treaty and specifying the terms of our participation, the U.S. Congress in 1945 agreed to all of this, in complete consistency with Constitutional law and procedures.

[anvi]

Were all the members of the UN required to fight in Libya? Or is the US special in some way?

No.  When Article 42 actions are approved, there are Article 48 sessions that determine which members states should contribute forces.  I think ten countries were initially identified to contribute military support, but the list expanded to nineteen by the time the operation took its full form.  They did some bombing, enforced no-fly zones and conducted naval blockades.  The U.K. actually bore the largest share of the costs, but the U.S. came in second on that list, though paid for the operation with funds already appropriated to DOD, so no additional funding was required.