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Mr. Truman's War: A Debate and Its Aftermath
Published online by Cambridge University Press: 05 August 2009
Extract
“WeDoubt very much if there is any question in the minds of the majority of the people of this country that the conflict now raging in Korea can be anything but war,” wrote Federal District Judge Harry C. Westover in the spring of 1953. “Certainly those who have been called upon to suffer injury and maiming, or to sacrifice their lives,” he continued, “would be unanimous in their opinion that this is war — war in all of its horrible aspects.” What common sense dictated, the judge didnot deny. Yet, although federal and state courts in this and several other instances touched tangentially on the question of whether the Korean conflict was a war in a legal and technical sense, on balance they produced no definitive answer. The United States Supreme Court, moreover, refused to hear any of the cases in question. But the lower courts ofthe nation were not alone in their diversity of opinion regarding the status of the war. The political branches of the Federal Government similarly displayed little agreement on the parallel issue of what the legal basis was for American participation in the Korean venture.
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References
1 Weissman v. Metropolitan Life Ins. Co., 112 F. Supp. 420, 425 (S.D. Cal. 1953).
2 Pye, A. Kenneth, “The Legal Status of the Korean Hostilities,” The Georgetown Law Journal, XLV (Fall, 1956), 45–47Google Scholar: the relevant cases are cited in notes 3–16.
3 While the author is aware of no systematic study of the 1950–1953 debate over the issues presented in the text, several specialized studies and texts do briefly consider the constitutional status of the war, either by pointing to its legal ambiguity or by stating (or implying), with varying degrees of clarity, that the American intervention legally rested on the resolutions of the United Nations Security Council or on the authority of the President as Commandermander-in-Chief or on both.
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8 Ibid., pp. 9322–23.
9 Ibid.
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11 United Nations Participation Act, 59 Stat. 619, 621; Acheson's testimony is quoted in Cong. Rev., 82d Cong., 1st sess., p. 5079; Rusk's is in U.S. Congress, House, To Amend the United Nations Participation Act of 1945, Hearings before the Committee on Foreign Affairs, 81st Cong., 1st sess., 1949, pp. 51, 75–78. On agreements under Art. 43 see also U.S. Congress, Senate, The Charter of the United Nations, Hearings before the Committee on Foreign Relations, 79th Cong., 1st sess., 1945, revised edition, pp. 290–300. The 1949 amendment to the United Nations Participation Act provided that, upon the request of the U.N., the President could provide up to 1000 American military personnel at any one time to the international organization “to serve as observers, guards, or in any other non-combatant capacity” (italics added). 63 Stat. 734, 735–36.
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18 Cong. Rec, 81st Cong., 2d sess., pp. 9647–48.
19 Ibid., pp. 9648–49. Douglas also described the legal significance of the resolutions of the Security Council. He contended that although they provided Truman with no direct authority in domestic constitutional terms, they guaranteed that Truman's action had the sanction of international law.
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21 Ibid., 82d Cong., 1st sess., pp. 513–19.
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