Mr. WHATLEY. I am representing no organization. I am a member of the District of Columbia bar, a private citizen, who spends more time in political activity that I consider in the public interest, and in real estate, than I do in the practice of law.

However, I take these few moments to call your attention to an aspect of this question that I consider to be most important and not to have been adequately covered, particularly the abuse of the treatymaking power by the Executive in nullifying the power of Congress to declare war.

The history of the North Atlantic pact the members of this committee know very well, but for the record may I cite two public documents which I hope the chairman shall place before each member of the full committee as they consider this important resolution: House Report 2495 of the 81st Congress, second session, entitled "Background Information on Korea," and House Report 127, 82d Congress, first session, entitled "Background Information on the Use of United States Armed Forces in Foreign Countries."

I think the members of this full committee who have not had an opportunity to read in the first document at page 61 the memorandum of the Department of State, on the authority of the President to go to war in Korea without a declaration of war, will be simply amazed at the contentions therein raised, particularly such specious allegations as that the President acted under the provisions of the United Nations Charter, which has been so ably refuted by the distinguished and patriotic Senator from Utah, who is a member of this committee, in a speech which has not received enough public attention, though it was inserted in the Record by Senator Taft, and is the only article I have seen delineating the illegality, under the Charter, of the President's action.

I therefore ask, because it is brief and it covers this most important question in relation to these resolutions, that it be placed in the record.

The CHAIRMAN. Is that a speech by Senator Watkins?

Mr. WHATLEY. Yes, sir.

Senator WATKINS. I might make a correction there. I think that was probably an article prepared for the Western Political Science Quarterly, and the article was put in the Record by Senator Taft. Senator SMITH. You do not want to change it?

Senator WATKINS. No; I do not want to change it.

The CHAIRMAN. How long ago was this?

Senator WATKINS. I wrote the article 2 years ago. It is an article written for the Western Political Science Quarterly.

The CHAIRMAN. All right, we will insert it in the record.

(The material referred to follows:)

WAR BY EXECUTIVE ORDER

Extension of Remarks of Hon. Robert A. Taft of Ohio in the Senate of the United States Tuesday, January 29, 1952

Mr. TAFT. Mr. President, Utah's Senior Senator Arthur V. Watkins has written an article entitled "War by Executive Order," which appears in the December 1951 issue of the Western Political Quarterly. This article should be required reading for those who are interested in the legality of the actions by which the Armed Forces of the United States were ordered into the Korean war.

The Western Political Quarterly, which has honored Senator Watkins by publishing his article, is a reputable, scholarly publication devoted to the study of

political science. It is the official journal of the Western Political Science Association and the Pacific Northwest Political Association. Its managing editor is Dr. F. B. Schick, of the University of Utah. Its board of editors is comprised of eminently qualified professors on the staff of various colleges and universities in the Mountain and Western States. It is published quarterly by the Institute of Government of the University of Utah.

I request unanimous consent for inclusion in the Record of the full text of Senator Watkins' excellent article.

(There being no objection, the article was ordered to be printed in the Record, as follows:)

WAR BY EXECUTIVE ORDER

(By United States Senator Arthur V. Watkins)

This article purports to analyze in some retrospect certain national as well as international legal aspects of the Korean incident, which-in the words of the United States Secretary of State is in fact a war "in the usual sense of the word." 1 ." The history leading to the Korean war has been well explored. Following a request of the United States Government, the Security Council of the United Nations convened on June 25, 1950, and passed a resolution in the absence of the Soviet delegate but in the presence of a Chinese delegate acting, as it appears, on behalf of the Chinese Nationalist Government in exile, which reads as follows: The Security Council:

"Recalling the finding of the General Assembly in its resolution of October 21, 1949, that the Government of the Republic of Korea is a lawfully established government 'having effective control and jurisdiction over that part of Korea where the United Nations Temporary Commission on Korea was able to observe and consult and in which the great majority of the people of Korea reside, and that this Government is based on elections which were a valid expression of the free will of the electorate of that part of Korea and which were observed by the Temporary Commission, and that this is the only such Government in Korea';

"Mindful of the concern expressed by the General Assembly in its resolutions of December 12, 1948, and October 21, 1949, of the consequences which might follow unless member states refrained from acts derogatory to the results sought to be achieved by the United Nations in bringing about the complete independence and unity of Korea, and the concern expressed that the situation described by the United Nations Commission on Korea in its report menaces the safety and well being of the Republic of Korea and of the people of Korea and might lead to open military conflict there;

"Noting with grave concern the armed attack upon the Republic of Korea by forces from North Korea,

"Determines that this action constitutes a breach of the peace,

"I. Calls for the immediate cessation of hostilities; and

"Calls upon the authorities of North Korea to withdraw forthwith their armed forces to the thirty-eighth parallel;

"II. Requests the United Nations Commission on Korea:

"(a) To communicate its fully considered recommendations on the situation with the least possible delay;

"(b) To observe the withdrawal of the North Korean forces to the thirty-eighth parallel; and

"(c) To keep the Security Council informed on the execution of this resolution; "III. Calls upon all members to render every assistance to the United Nations

1 Testimony of Secretary of State, Dean G. Acheson, before the combined Senate Armed Services and Foreign Relations Committees, June 7, 1951:

"Senator BYRD. Do you regard the conflict in Korea as a police action?

"Secretary ACHESON. I regard it as a military action to repulse the attack made against the Republic of Korea.

"Senator BYRD. When does a military action or police action cease to be such and become a war? "Secretary ACHESON. Well, I think in the ordinary popular sense it is a war if you have fighting in military formations.

"Senator BYRD. You recognize it as a war now?

"Secretary ACHESON. Yes, sir; in the usual sense of the word there is a war."

2 See for instance: Department of State, United States Policy in the Korean Crisis (Washington, D. C., Publication 3922, Far Eastern Series 34, July 1950), hereafter cited as Korean Crisis: see also U. N. doc. 1950/1/8, Korea and the United Nations (New York. Columbia University Press, October 1950). For a critical analysis see F. B. Schick. Videant Consules, The Western Political Quarterly, vol. III (1950) pp. 311-325.

in the execution of this resolution and to refrain from giving assistance to the North Korean authorities."

3

The Security Council resolution of June 25, 1950, was adopted at 5: 45 p. m. by a vote of 9 to 0, with Soviet Russia-a permanent member-absent, Yugoslavia abstaining, and the Chinese representative voting for the "Republic of China." The intention of the United States Government, as stated in its original draft (U. N. Doc. S/1497), was not to call upon all parties concerned for immediate cessation of hostilities. The relevant passages of the American draft resolution read:

The Security Council:

"Noting with grave concern the armed invasion of the Republic of Korea by armed forces from North Korea.

"Determines that this action constitutes a breach of the peace.

"I. Calls upon the authorities in North Korea

"(a) To cease hostilities forthwith. * *

As stipulated in article 40 of the United Nations Charter, the Security Council, if applying this article before taking enforcement action, must not address itself only to one disputant but has to "call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable." It is apparently this important consideration which prompted the Security Council to amend the United States draft to read as follows:

The Security Council:

"Noting with grave concern the armed invasion of the Republic of Korea by armed forces from North Korea,

"Determines that this action constitutes a breach of the peace,

"I. Calls for the immediate cessation of hostilities; and

"Calls upon the authorities of North Korea to withdraw forthwith.

It will be noted that in the revised draft the Security Council calls upon all parties concerned for the immediate cessation of hostilities. It is also important to emphasize that the Security Council resolution of June 25, 1950, does not call upon, or authorize, members of the United Nations to institute military action. The only action called upon members was “ *** to render every assistance to the United Nations in the execution of this resolution and to refrain from giving assistance to the North Korean authorities." The fact is that the resolution of June 25, 1950, merely determined that the military action of the North Koreans constituted a breach of the peace.

When the news of the outbreak of hostilities in Korea was received, the President of the United States was away from Washington. He returned to Washington at 7 p. m., Sunday, June 25, 1950, and went into an immediate dinner conference at the Blair House with the Secretaries of State and Defense, their senior advisers, and the Joint Chiefs of Staff. Thereupon, that same evening, the President authorized Gen. Douglas MacArthur to begin immediately sending arms, ammunition, and military supplies to the Republic of Korea. This action was made public in a White House press statement issued the next day, Monday, June 26, 1950. On that same day, June 26, 1950 (Korean time), the Korean National Assembly telegraphed the President and the Congress of the United States appealing for "*** your increasing support and [asking] that you at the same time extend effective and timely aid. * * *" A similar message was sent to the United Nations appealing for “* your immediate and effective steps to secure peace and security not only for Korea but also for the peace-loving peoples of the world."

*

The President's order to General MacArthur had preceded these requests. On the morning of June 27, 1950, the President announced that inasmuch as the North Koreans had defied the orders of the Security Council to preserve international peace and security he had *** ordered United States air and sea forces to give Korean Government troops cover and support." That afternoon,

3 Korean Crisis, op. cit., p. 16: for the official text see U. N. doc. S-1501. The second paragraph of the President's statement of June 26, 1950, reads as follows: "Our concern over the lawless action taken by the forces from North Korea, and our sympathy and support for the people of Korea in this situation are being demonstrated by the cooperative action of American personnel in Korea, as well as by steps taken to expedite and augment assistance of the type being furnished under the Mutual Defense Assistance Program.

་་

5 Statement by the President, June 27, 1950. The decision to intervene with air and sea forces was made at the White House of Monday evening. June 26, 1950. In testimony before the Combined Senate Committee on Armed Services and Foreign Relations, former Secretary of Defense, Louis A. Johnson, testified in part as follows (on June 14, 1951) "Secretary JOHNSON. Many of us met the President at the airport on Sunday evening when he came in. Secretary Acheson and myself rode to the Blair House with the Presi

the representative of the United States placed the President's announcement before the Security Council together with the information that the United States considered it “*** the plain duty of the Security Council to invoke stringent sanctions to restore international peace.' The United States ambassador, on behalf of his Government, introduced a draft resolution to accomplish that purpose. The proposed resolution recommended that “*** the members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area." The resolution was adopted, without amendment or change, on June 27, 1950, at 10: 45 p. m., by a vote of 7 to 1 (Yugoslavia), with two abstentions (India and Egypt), and one absence (Soviet Russia).

The next morning, June 28, 1950, at his news conference in Washington, the Secretary of State emphasized that all actions which the United States had taken in support of the United Nations after June 25, 1950, in Korea had been “* * under the aegis of the United Nations."

On June 29, 1950, 2 days after the Security Council had adopted its resolution calling for military assistance to the Republic of Korea, the Secretary General of the United Nations dispatched a formal telegram to the Secretary of State of the United States calling “* * * the attention of your Government to the resolution adopted by the Security Council at its four hundred and seventy-fourth meeting on June 27, 1950, which recommends that the members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area." The Secretary General's telegram went on to say:

"In the event that your Government is in a position to provide assistance it would facilitate the implementation of the resolution if you were so good as to provide me with an early reply as to type of assistance. I shall transmit the reply to the Security Council and to the Government of the Republic of Korea." Similar messages were sent to the governments of all other members of the United Nations.

The next day, June 30, 1950, the representative of the United States to the United Nations formally informed the Secretary General of the United Nations that "** ** in pursuance of the United Nations Security Council resolution of 25 June 1950 requesting member nations to refrain from giving assistance to North Korean authorities the United States Government had *** instituted an embargo on all United States exports to the North Korean area, effective at 4 p. m., Eastern Daylight Saving Time, June 28, 1950." 8

That same day (June 30, 1950), the White House issued a press release announcing that the President *** had authorized the United States Air Force to conduct missions on specific military targets in Northern Korea wherever militarily necessary, and had ordered a naval blockade of the entire Korean coast." The concluding sentence of the press release announced: "General MacArthur has been authorized to use certain supporting ground units."

Then, on July 6, 1950, the representative of the United States to the United Nations formally replied to the Secretary General's telegram of June 29, 1950, and informed him of the military action which the President had ordered in response to the Security Council resolution of June 27, 1950. On July 7, 1950, the Security Council adopted a resolution, its third in respect to the Korean conflict, recommending that all members providing military forces and other assistance pursuant to the resolutions of June 25 and June 27, 1950, "* make such forces and other assistance available to a unified command under the United States. ***** That resolution requested the United States to designate the commander of the forces in Korea and authorized the use of the United Nations flag in the course of operations against North Korean forces." The vote on the

dent. There was a period of time before dinner at 7: 45 to which dinner there had been invited all the members of the Joint Chiefs of Staff and the Chairman thereof and the Secretaries of Army, Navy, and Air Force, and myself, Secretary Acheson and several others of the State Department. When we adjourned, the impression was that we would get together the next day, and there were conferences the next day, but that whole group. less a few but not less any of the military men I named, met again on Monday evening, and at that time the decision on motion of Secretary Acheson was made to send the navy and the air force into the situation, the United Nations having met at 3:00 o'clock on the previous Sunday afternoon and declared North Korea an aggressor."

U. N. doc. S/PV 474.

7 U. N. doc. S/1508/Rev. 1.

8 U. N. doc. S/1531. U. N. doc. S/1580.

10 U. N. doc. S/1588.

30572-53--75

resolution was 7 to 0, with three abstentions (Egypt, India, and Yugoslavia), and one absence (Soviet Russia).

11

In the course of the discussion preceding the adoption of the resolution of July 7, 1950, the President of the Security Council, then Mr. Sunde of Norway, pointed out that the conflict in Korea, far from being “a short and decisive police action" as some had hoped, had turned into "a pitched battle of unforeseeable duration." " The United States delegate, Warren Austin, pointed out that the United States had considered the resolution in advance but had not authored it. He informed the Security Council that his Government was *** grateful indeed that we could be excused from doing that, and that so great and friendly nations as the United Kingdom and France should become the sponsors of this vital resolution. We have already accepted the responsibilities of this resolution. In spirit if not in word, this resolution has been in effect since the very first resolution adopted in response to the call for help from Korea." "

It was by the series of decisions set forth above that the Armed Forces of the United States were committed to military action in Korea. There was no consultation with the Congress nor was congressional approval sought. The decisions were made on behalf of the United States by the executive department of the Government. Certain members of the Foreign Relations and Armed Services Committees of the Congress had been called to the White House on the morning of June 27, 1950. They were there, however, only to be informed by the President of action he had already decided upon, not for purposes of consultation and advice in the formulation of a course of action yet to be formulated. Those Members of Congress who were summoned to the White House at 10:30 a. m. on June 27, 1950, however, were not empowered with the authority to speak for the Congress as a whole or even for their own political parties. In fact, they had not been given the opportunity to consult with the Congress or with other members of their party, nor had they been given an opportunity to place the matter before their party policy committees."

It is significant to note, too, that article 51 of the Charter of the United Nations recognizes that members have "the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." Article 51 refers specifically to attacks against a member. Although the Republic of Korea had several times applied for membership in the United Nations, it was not a member in June 1950, when the attack occurred, nor has it since been admitted.

It has also been pointed out that since article 27 of the Charter requires that decisions of the Security Council shall be by affirmative vote of seven members,

18 96 Congressional Record 8230 (June 27, 1950).

"Mr. LUCAS. I will say to the Senator from Missouri that the President had at least 12 to 15 Members of the House and the Senate attend the conference at the White House this morning.

"Mr. KEM. By whom were the members of the conference selected? "Mr. LUCAS. I do not know who selected them.

"Mr. KEM. Were they supporters of the so-called bipartisan policy, or were any representatives drawn from the so-called critics of that policy?

"Mr. LUCAS. The Senator from New Hampshire (Mr. BRIDGES) was there, and the Senator from Wisconsin (Mr. WILEY) was there. Most of the Members of the Senate and the House who attended the conference are members of the Committees on Armed Services, the Committee on Foreign Relations, and the Committee on Foreign Affairs. I should think that they would be the appropriate committees from which members for such a conference should be selected.

"Mr. SMITH of New Jersey. Mr. President, will the Senator yield?

"Mr. LUCAS. I vield to the Senator from New Jersey.

"Mr. SMITH of New Jersey. I want to say to the able majority leader that present at the conference were Members of the Senate Committee on Foreign Relations and the House Committee on Foreign Affairs, and Members of the Senate and House Committees on Armed Services. Both Democrats and Republicans were present. As I observed the conference I felt that an attempt had been made to have both sides of the aisle in the House and in the Senate present when this important decision was made. Military and naval representatives were also there."

14 Speech by United States Senator Robert A. Taft, July 28, 1950: "I think it is important to point out, Mr. President, that there has been no pretence of any bipartisan foreign policy about this action. The leaders of the Republican Party in Congress have never been consulted on the Chinese policy or Formosa or Korea or Indochina. Republican members of the Foreign Relations Committee and of the Armed Forces Committee were called to the White House at 10:30 a. m. on June 27, and were informed with regard to the Presidents statement, but, of course, they had no opportunity to change it or to consult Republican policy committees in either the House of Representatives or the Senate" (90 Congressional Record 9320 [1950]).