support for the United Nations on the part of the Government of the Republic of China. In light, however, of the threat of invasion of Taiwan by Communist forces from the mainland, a threat repeated in the last day or so by spokesmen for the Chinese Communist regime in Peiping, it is the view of the Government of the United States of America that it would be desirable for representatives of General MacArthur's Headquarters to hold discussions with the Chinese military authorities on Taiwan concerning the plans for the defense of the island against invasion prior to any final decision on the wisdom of reducing the defense forces on Taiwan by transfer of troops to Korea. It is understood that General MacArthur's Headquarters will be in communication with the appropriate Chinese military authorities on Taiwan with a view to the dispatch from Tokyo of representatives of General MacArthur's Headquarters for this purpose.

13. CONSTITUTIONAL AUTHORITY FOR USE OF UNITED STATES FORCES IN KOREA: Memorandum by the Department of State, July 3, 1950 (Excerpts) 1

1

This memorandum is directed to the authority of the President to order the Armed Forces of the United States to repel the aggressive attack on the Republic of Korea.

As explained by Secretary Acheson to the press on June 28, as soon as word of the attack on Korea was received in Washington, it was the view of the President and of all bis advisers that the first responsibility of the Government of the United States was to report the attack to the United Nations.2

Accordingly, in the middle of the night of Saturday, June 24, 1950, Ambassador Gross, the United States deputy representative at the Security Council of the United Nations, notified Mr. Trygve Lie, the Secretary-General of the United Nations, that armed forces from North Korea had commenced an unprovoked assault against the territory of the Republic of Korea.

3

The President, as Commander in Chief of the Armed Forces of the United States, has full control over the use thereof. He also has authority to conduct the foreign relations of the United States. Since the beginning of United States history, he has, upon numerous

1 Department of State Bulletin, July 31, 1950, pp. 173-177. Ellipses indicated in quotations herein were so indicated in the original memorandum. For further discussion of this subject, see Background Information on the Use of United States Armed Forces in Foreign Countries (H. Rept. No. 127, 82d Cong., 1st sess.)

2 See the Department of State Bulletin, July 3, 1950, p. 6.

For the five paragraphs which were omitted at this point in the Department of State Bulletin print of the memorandum, and which summarized pertinent developments of June 25-28, 1950, see Background Information on Korea (H. Rept. No. 2495, 81st Cong., 2d sess.), pp. 61-62.

occasions, utilized these powers in sending armed forces abroad. The preservation of the United Nations for the maintenance of peace is a cardinal interest of the United States. Both traditional international law and article 39 of the United Nations Charter and the resolution pursuant thereto 2 authorize the United States to repel the armed aggression against the Republic of Korea.

The President's control over the Armed Forces of the United States is based on article 2, section 2 of the Constitution which provides that he "shall be Commander in Chief of the Army and Navy of the United States."

In United States v. Sweeny, the Supreme Court said that the object of this provision was "evidently to vest in the President the supreme command over all the military forces-such supreme and undivided command as would be necessary to the prosecution of a successful war." 3

That the President's power to send the Armed Forces outside the country is not dependent on Congressional authority has been repeatedly emphasized by numerous writers.

For example, ex-President William Howard Taft wrote:

The President is made Commander in Chief of the Army and Navy by the Constitution evidently for the purpose of enabling him to defend the country against invasion, to suppress insurrection and to take care that the laws be faithfully executed. If Congress were to attempt to prevent his use of the Army for any of these purposes, the action would be void.

Again, in the carrying on of war as Commander in Chief, it is he who is to determine the movements of the Army and of the Navy. Congress could not take away from him that discretion and place it beyond his control in any of his subordinates, nor could they themselves, as the people of Athens attempted to carry on campaigns by votes in the market-place.1

Professor Willoughby writes:

As to his constitutional power to send United States forces outside the country in time of peace when this is deemed by him necessary or expedient as a means of preserving or advancing the foreign interests or relations of the United States, there would seem to be equally little doubt, although it has been contended by some that the exercise of this discretion can be limited by congressional statute. That Congress has this right to limit or to forbid the sending of United States forces outside of the country in time of peace has been asserted by so eminent an authority as ex-Secretary Root. It would seem to [the] author, however, that the President, under his powers as Commander in Chief of the Army and Navy, and his general control of the foreign relations of the United States, has this discretionary right constitutionally vested in him, and, therefore, not subject to congressional control. Especially, since the argument of the court in Myers v. United States with reference to the general character of the executive power vested in the President, and, apparently, the authority impliedly vested in him by reason of his obligation to take care that the laws be faithfully executed, it is reasonable to predict that, should the question be presented to it, the Supreme

1 Supra, p. 144.

2 U.N. Security Council Resolution of June 27, 1950; supra, doc. 10.

3157 U. S. (1895) 281, 284. [This citation, and most of those which follow, appeared in the original memorandum (in the main text, however, rather than as footnotes). They are reproduced here as footnotes from the Department of State Bulletin print of the memorandum.]

Our Chief Magistrate and His Powers, 1916, pp. 128-129. [Citation in the original memorandum.]

ד

1

Court will so hold. Of course, if this sending is in pursuance of express provisions of a treaty, or for the execution of treaty provisions, the sending could not reasonably be subject to constitutional objection.1

In an address delivered before the American Bar Association in 1917 on the war powers under the Constitution, Mr. Hughes stated that "There is no limitation upon the authority of Congress to create an army and it is for the President as Commander-in-Chief to direct the campaigns of that Army wherever he may think they should be carried on.' He referred to a statement by Chief Justice Taney in Fleming v. Page (9 How. 615) in which the Chief Justice said that as Commander in Chief the President "is authorized to direct the movements of the naval and military forces placed by law at his command." 2

At the time the approval of the Treaty of Versailles was under consideration in the Senate, there was under discussion a reservation to article 10, presented by Senator Lodge, to the effect that "Congress . . . under the Constitution, has the sole power to declare war or authorize the employment of the military or naval forces of the United States." Senator Walsh of Montana stated in debate on November 10, 1919 that the statement was a recital of "What is asserted to be a principle of constitutional law." He said that if—

any declaration of that character should ever be made by the Senate of the United States, it would be singularly unfortunate. It is not true. It is not sound. It is fraught with the most momentous consequences, and may involve disasters the extent of which it is hardly possible to conceive.

The whole course of our history has been a refutation of such a declaration, namely, that the President of the United States, the Chief Executive of the United States, the Commander in Chief of the Army of the United States, has no power to employ the land or naval forces without any express authorization upon the part of Congress. Since the beginning of our Government, our Navy has been sent over the seven seas and to every port in the world. Was there ever any congressional act authorizing the President to do anything of that kind?

He stated that our Navy travels the sea "in order to safeguard and protect the rights of American citizens in foreign lands. Who can doubt that the President has no [sic] authority thus to utilize the naval and land forces of the United States?"

Mr. Borah stated:

I agree fully with the legal or constitutional proposition which the Senator states, and I hope this [reservation]3 will be stricken out. It is an act of supererogation to put it in. It does not amount to anything. It is a recital which is not true.

It can not change the Constitution, and it ought not to be there. . . . It would simply be vain and futile and, if I may say so, with due respect to those who drew it, the doing of an inconsequential thing.” 4

1 The Constitutional Law of the United States, 1929, vol. III, p. 1567. [Citation in the original memorandum.]

2 S. Doc. 105, 65th Cong., 1st sess., p. 7. [Citation in the original memorandum.]

3 Bracketed insertion in the original memorandum.

458 Cong. Rec., pt. 8, p. 8195, Nov. 10, 1919, 66th Cong., 1st sess. [Citation in the original memorandum.]

Not only is the President Commander in Chief of the Army and Navy, but he is also charged with the duty of conducting the foreign relations of the United States and in this field he "alone has the power to speak or listen as a representative of the Nation."

Obviously, there are situations in which the powers of the President as Commander in Chief and his power to conduct the foreign relations of this country complement each other.

The basic interest of the United States is international peace and security. The United States has, throughout its history, upon orders of the Commander in Chief to the Armed Forces and without congressional authorization, acted to prevent violent and unlawful acts in other states from depriving the United States and its nationals of the benefits of such peace and security. It has taken such action both unilaterally and in concert with others. A tabulation of 85 instances of the use of American Armed Forces without a declaration of war was incorporated in the Congressional Record for July 10, 1941.2

It is important to analyze the purposes for which the President as Commander in Chief has authorized the despatch of American troops abroad. In many instances, of course, the Armed Forces have been used to protect specific American lives and property. In other cases, however, United States forces have been used in the broad interests of American foreign policy, and their use could be characterized as participation in international police action.

The traditional power of the President to use the Armed Forces of the United States without consulting Congress was referred to in debates in the Senate in 1945. Senator Connally remarked: "The historical instances in which the President has directed armed forces to go to other countries have not been confined to domestic or internal instances at all." Senator Millikin pointed out that "in many cases the President has sent troops into a foreign country to protect our foreign policy. . . notably in Central and South America." "That was done," he continued, "in order to keep foreign countries out of there was not aimed at protecting any particular American citizen. It was aimed at protecting our foreign policy." To his remark that he presumed that by the Charter of the United Nations we had laid down a foreign policy which we could protect, Senator Connally replied that that was "absolutely correct." He added:

I was trying to indicate that fact by reading the list of instances of intervention on our part in order to keep another government out of territory in this hemisphere. That was a question of carrying out our international policy, and not a question involving the protection of some American citizen or American property at the moment.3

1 United States v. Curtiss-Wright Export Corp. et al. (299 U.S. (1936) 304, 319). [Citation in the original memorandum.]

2 A copy of the tabulation was annexed to the memorandum. It is printed in the Department of State Bulletin, July 31, 1950, pp. 177-178, and in the abovecited H. Rept. No. 2495, pp. 67-68. At this point in the memorandum appeared a sentence (omitted in the Bulletin but printed in H. Rept. No. 2495, p. 64) which cited a pamphlet by James Grafton Rogers entitled World Policing and the Constitution.

Cong. Rec., 79th Cong., 1st sess., vol. 91, pt. 8, Nov. 26, 1945, p. 10967. [Citation in the original memorandum.]

415900-57-vol. 2—57

During the Boxer Rebellion in China in 1900-1901, the President sent about 5,000 troops to join with British, Russian, German, French, and Japanese troops to relieve the siege of the foreign quarters in Peking and reestablish the treaty status. This was done without express congressional authority. In defining United States policy at the time Secretary of State Hay said:

The purpose of the President is, as it has been heretofore, to act concurrently with the other powers; first, in opening up communication with Peking and rescuing the American officials, missionaries, and other Americans who are in danger; secondly, in affording all possible protection everywhere in China to American life and property; thirdly, in guarding and protecting all legitimate American interests; and, fourthly, in aiding to prevent a spread of the disorders to the other provinces of the Empire and a recurrence of such disasters. It is, of course, too early to forecast the means of attaining this last result; but the policy of the Government of the United States is to seek a solution which may bring about permanent safety and peace to China, preserve Chinese territorial and administrative entity, protect all rights guaranteed to friendly powers by treaty and international law, and safeguard for the world the principle of equal and impartial trade with all parts of the Chinese Empire.1

After the opening up of Japan to foreigners in the 1850's through the conclusion of commercial treaties between Japan and certain Western powers, antiforeign disturbances occurred. In 1863, the American Legation was burned following previous attacks on the British Legation. The commander of the U. S. S. Wyoming was instructed to use all necessary force for the safety of the legation or of Americans residing in Japan. Secretary of State Seward said that the prime objects of the United States were:

First, to deserve and win the confidence of the Japanese Government and people, if possible, with a view to the common interest of all the treaty powers; secondly, to sustain and cooperate with the legations of these powers, in good faith, so as to render their efforts to the same end effective.2

In 1864, the Mikado, not recognizing the treaties with the Western powers, closed the straits of Shimonoseki. At the request of the Tycoon's government (opposed to the Mikado), American, British, French, and Netherlands forces, in a joint operation, opened the straits by force. The object of the Western powers was the enforcement of treaty rights, with the approval of the government that granted them.

Again, in 1868, a detachment of Japanese troops assaulted foreign residents in the streets of Hiogo. One of the crew of the Oneida was seriously wounded. The safety of the foreign population being threatened, naval forces of the treaty powers made a joint landing and adopted measures to protect the foreign settlement.*

1 John Bassett Moore, A Digest of International Law, vol. v, p. 482. See also Taft, op. cit. pp. 114-115; Rogers, op. cit. pp. 58-62. [Citations in the original memorandum.]

2 John Bassett Moore, A Digest of International Law, vol. v, pp. 747-748. [Citation in the original memorandum.]

3 Ibid., p. 750; S. Ex. Doc. 58, 41 Cong. 2d sess. memorandum.]

4 Report of the Secretary of the Navy, 1868, p. xi.

memorandum.]

[Citations in the original

[Citation in the original