Some find significance in the fact that the administration avoided the use of the word "war" to describe hostilities in Korea, referring to it instead as a "police action":

Attempts were made to justify the decision on the grounds, inter alia, that the action was taken under the United Nations Charter, a part of both the treaty and international law which the President is constitutionally empowered to execute, and that the President was protecting "the broad interests of American foreign policy." Significantly, though, constant attempts were made by the administration to describe the conflict, not as a "war," but as a mere "police action," suggesting that, indeed, the President's power to use force to protect such interests was somehow limited to military measures short of war.23

D. STATIONING OF UNITED STATES FORCES ABROAD IN TIME OF PEACE

In addition to sending troops abroad in times of hostilities, the President has also stationed forces abroad in time of peace and in the absence of any fighting. The period since the close of World War II furnishes numerous examples of the sending of U.S. troops overseas. However, the years immediately preceding the Second World War also afford three examples of the dispatch of forces to foreign territory in time of peace for strategic reasons. All of them occurred before the United States became a belligerent.

The first instance was the occupation by U.S. troops of the naval and air bases acquired from Britain in exchange for 50 destroyers. The bases were acquired through an executive agreement that was not submitted to the Senate for approval. The exchange was effected between the Governments and, on September 3, 1940, the President informed Congress of the action taken.

The war in Europe had left Greenland in an uncertain status after Germany invaded Denmark. The strategic position of the island made it important to both Great Britain and Germany. On April 10, 1941, the Secretary of State announced the text of an agreement signed by himself and the Danish Minister the day before. It was announced that Greenland would be occupied by American troops.

Iceland, an independent sovereign State, had been occupied by British troops. Through an exchange of letters, sometime in June 1941, President Roosevelt and the Prime Minister of Iceland, apparently arranged for American troops to replace British troops. The landing of U.S. troops was reported to Congress by the President in a special message on July 7, 1941, the same day our forces landed. The President transmitted the documents to Congress "for information" and did not request any action.

Among postwar experiences involving U.S. troops abroad in time of peace, the question of sending additional troops to Europe in early 1951 was clearly a landmark case. The "Great Debate" over troops to Europe grew up gradually after President Truman's announcement in September 1950 that he planned to send additional ground troops to Europe as part of the projected buildup of NATO forces there. Senator Taft's speech attacking the Administration for formulating foreign policy without consulting the Congress or the people, delivered in the Senate on January 5, 1951, marked the beginning of a Senate preoccupation with the issue which lasted through the adoption of

23 Harvard Law Review, op. cit., p. 1792.

24 In Appendix I-B are listed major U.S. armed actions overseas, other than declared wars, together with related actions by the Congress.

S. Res. 99 three months later.25 This resolution, adopted April 4, 1951, expressed approval of "present plans to send four additional divisions of ground forces to Western Europe," but stated it was the sense of the Senate "that no ground troops in addition to such four divisions should be sent to Western Europe * ** without further congressional approval." The resolution also expressed support of General Eisenhower's appointment as NATO commander, the sense of the Senate regarding future military contributions by Italy, Germany and Spain, and the sense of the Senate on a number of consulting and reporting procedures involving the President, the Joint Chiefs of Staff, the NATO Commander and the Congress.

Since the Troops-to-Europe resolution was adopted, the President has not raised the issue of further ground troops for Europe beyond the additional four divisions specified. There has thus been no direct test of whether the "further Congressional approval" specified in the resolution would in fact have been sought. The "Great Debate" seems to have resulted in something of a draw between the President and the Congress an occurrence itself which was unusual in a long period of generally declining congressional power on the issue vis-a-vis the President.

The sending of troops abroad in the absence of hostilities poses somewhat different issues than the sending of troops into a conflict.

One school of opinion, over the years, has held that the President as Commander in Chief, and perhaps with certain inherent and "necessary and proper" powers, can station armed forces overseas in peacetime as he sees fit, without the need to obtain congressional authorization.

Writing in 1929, W. W. Willoughby, professor at Johns Hopkins University, asserted that the President had exclusive discretion to send forces outside the country in time of peace, although he cited Elihu Root as a contrary authority:

There has been no question as to the constitutional power of the President of the United States, in time of war, to send troops outside of the United States when the military exigencies of the war so require. This he can do as Commander in Chief of the Army and Navy, and his discretion in this respect can probably not be controlled or limited by Congress.

As to his constitutional power to send United States troops 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 (272 U.S. 52), 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 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.20

Forty years later, in 1969, the Department of State expressed a similar view of presidential prerogative:

25 The text of S. Res. 99 is included in Appendix IV.

26 The Constitutional Law of the United States (2d ed.) New York, 1929, vol. III, p. 1567.

As Commander in Chief, the President has the sole authority to command our Armed Forces, whether they are within or outside the United States. And, although reasonable men may differ as to the circumstances in which he should do so, the President has the constitutional power to send U.S. military forces abroad without specific congressional approval.27

Others assert that congressional approval is necessary for sending troops to foreign countries under certain circumstances. One such circumstance cited is where there is a danger of war. Sending troops overseas in such a case, it is sometimes held, would be unconstitutional because only the Congress has the power, under the Constitution, to declare war. Similar circumstances requiring Congressional approval in the views of some, include cases when the troops might be employed provocatively or offensively.

In response to a query made by a Member of the Congresss on June 3, 1940, on whether the President of the United States had the authority under existing law to order Federal troops into service outside of the possessions of the United States, the Judge Advocate General of the Army stated:

He (the President) may not raise armies. This the Congress is responsible for doing (Constitution, art. I, sec. VIII, clause 12). Once raised, an army of the United States is under the sole and exclusive direction of the President. Their movement and implementation is at the President's discretion, limited only by whether or not an intended use would constitute an initiation or declaration of war by the President, if carried through.28

It would appear from this memorandum that the President could not move troops if the purpose in so doing was to initiate or declare

a war.

Edwin L. Borchard, writing in 1945, maintained that congressional consent was required if war was a possibility:

His action in landing troops for the protection of American citizens *** is limited to small, backward, or weak countries, where the American citizen or his property is in immediate danger or where the intervention is assented to, where small forces are involved, and where the activity could not possibly lead to war. If the President even faintly suspects that intervention might lead to war, it is his duty, as President Wilson undertook in the Vera Cruz expedition of 1914 against Mexico, to obtain the consent of Congress for his proposed enterprise✶✶ ✶ 29

The report of the Senate Foreign Relations Committee on the "National Commitments" resolution in April, 1969, referring to the "50,000 American troops now in Thailand," stated:

*** the dispatch of large numbers of American troops to an area of warfare or potential warfare is also a matter requiring congressional authorization, involving, as it does, both the treaty power and the war powers of Congress.30

V. LIMITATIONS ON THE PRESIDENT'S USE OF TROOPS ABROAD

A. DECLARATION OF WAR

The framers of the Constitution intended to vest in Congress the sole power to declare war.' The President's power to order military

"Comments on Senate Resolution 85 (the "National Commitments" resolution). Memorandum accompanying letter of March 10, 1969, from William B. Macomber, Jr., Assistant Secretary of State for Congressional Relations, quoted in National Commitments Report, op. cit. p. 35. "Memorandum to the Adjutant General, June 17, 1940.

"The Charter and the Constitution, 39 American Journal of International Law (1945) 767, at pp. 768-769. Senate Report No. 91-129, op. cit., p. 28.

1 The Supreme Court has noted that "the whole powers of war [are] by the constitution of the United States, vested in congress." Talbot v. Seeman (1801) i Cr. 28, at p. 28.

46-822 0-70- -5

action prior to consultation of Congress was allowed for only in one specific situation, namely, to repel sudden attacks on the United States. However, armed conflict between nations without a declaration of war is becoming more commonplace, and recent practice indicates that a formal declaration of war is no longer necessarily issued, even by nations engaging in extended hostilities. The Harvard Law Review

states:

Though there may have been a time when . . . changes in legal status were uniquely the result of a formal declaration [of war] this is clearly no longer true today. Čountries have long engaged in undeclared hostilities which in terms of the effort involved, the impact on citizens, and the effect on domestic and international legal relations are often indistinguishable from a formally declared war. . . . the formal declaration of war in the modern context is often deliberately avoided precisely because of the apparent commitment to total victory and the general hardening of attitudes likely to result.2

The international implications of declaring or not declaring war in time of hostilities do not constitute the key issue in this study. The main question is the division of the war power between Congress and the President. How significant a limitation on the President's power has been the requirement for a declaration of war by Congress in the past?

The precedents show that Congress has never refused to declare war when requested by the President and also that several major military actions have been undertaken without such a declaration. Prior to the conflict in Vietnam, five out of ten serious and extended engagements of force against other nations were conducted by the United States without a formal declaration of war. Those engagements which took place without any congressional declaration are: the undeclared naval war with France, 1798-1800; the First Barbary War, 1801-05; the Second Barbary War, 1815; the American-Mexican hostilities, 1914-17; and the Korean War, 1950-53. Those conflicts in which war was declared are: The War of 1812; the Mexican War; the SpanishAmerican War; and the First and Second World Wars.3

Although Congress has "declared war" in the sense that a formal resolution has been enacted, four of the five "declarations" have recognized the prior existence of war. The only exception was the War of 1812. The declaration of war in 1812 provided that—

War be and the same is hereby declared to exist.4

The others either recognized the existence of war by the act of some other State, as in the Mexican War and the First and Second World Wars, or recognized the existence of war as of some previous date, as in the Spanish-American War. The declaration of war against Mexico of May 13, 1846, provided that

whereas, by act of the Republic of Mexico, a state of war exists * * *.5

2 Harvard Law Review, op. cit. p. 1772. The only formal declarations of war made by any nation since World War II appear to be those issued against Israel by Algeria, Iraq, Kuwait, Sudan and Syria on June 5,

1967.

3 See Appendix I. Rogers, J. G. op. cit. p. 45 ff.

42 Stat. 755.

$9 Stat. 9. The declaration of war of April 6, 1917, provided "that the state of war between the United States and the Imperial German Government which has been thrust upon the United States is hereby formally declared." (40 Stat. 1). The declaration of December 8, 1941, provided: "Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it resolved *** that the state of war between the United States and the Imperial Government of Japan which has been thrust upon the United States is hereby formally declared **" (55 Stat. 795). The declaration of war of December 11, 1941, against Germany provided: "Whereas the Government of Germany has formally declared war against the Government of and people of the United States of America: Therefore has it resolved *** that the state of war between the United States and Germany which has been thrust upon the United States is hereby formally declared (55 Stat. 796). The declaration of war against Italy of December 11, 1941, followed the same form as that against Germany (55 Stat. 797).

In the case of the Spanish-American War, the declaration of April 25, 1898 provided

*** that war be, and the same is hereby declared to exist, and that war has existed since the twenty-first day of April * * * between the United States of America and the Kingdom of Spain * * *.6

Several significant court cases make the point that a state of war can exist without a formal declaration of war by the Congress. The first is Hamilton v. McClaughry, arising out of American participation in quelling the Boxer uprising. A corporal, tried and convicted by a United States court martial in Peking, contended that at the time of the homicide of which he was convicted, there prevailed neither war, insurrection, nor rebellion, and that the military court which had tried him was without jurisdiction and its judgment void. The court said:

Again, it is the well-settled law that the existence of a condition of war must be determined by the political department of the Government; that the courts take judicial notice of such determination and are bound thereby. *** In the present case, at no time was there any formal declaration of war by the political department of this Government against either the Government of China or the "Boxer" element of that Government. A formal declaration of war, however, is unnecessary to constitute a condition of war. *The question here is whether this Government was, at the time of the commission of a homicide by petitioner, prosecuting its right in Chinese territory by force of arms. *** The first duty of a state is the protection of the lives and property of its citizens wherever lawfully situated, by peaceable means if possible; if not, by force of arms. More especially must this protection be afforded the representatives of this Government in a foreign country.7

Another is the case of New York Life Insurance Company v. Bennion, arising out of the attack on Pearl Harbor. Mrs. Bennion brought action against the New York Life Insurance Co. for double indemnity payment on the policy held by her husband. Captain Bennion, commanding officer of the U.S.Š. West Virginia, was killed on the bridge of his ship on December 7, 1941, during the attack on Pearl Harbor. The insurance policy provided double indemnity for accidental death, but not for death resulting from "war or any act incident. thereto." The problem was whether the existence of war is dependent upon a formal declaration by the Congress.

The Court said:

No one denies the grim reality that the attack beginning December 7, 1941, at about 7:30 a.m. Honolulu time, marked the commencement of an armed conflict between two sovereign nations which ended only when the Japanese surrendered nearly 4 years later. Furthermore, it seems to be agreed that the existence or nonexistence of a state of war is a political question, to be determined by the political department of our Government. The basic difference lies in the contention on the one hand that a formal declaration by the Congress, which alone has the constitutional power to declare and make war, is an essential prerequisite to judicial cognizance of its existence; and the contention on the other hand, that the existence of a war is not dependent upon its formal declaration but rather is determinable from an appraisal of actualities; that the formal declaration by Congress on the day after the attack was merely a formal recognition of that which was already actually in existence.

30 Stat. 364.

7 (1905) 136 Fed. 445, at pp. 449-450.