Third, that the Secretary of State, Dean Acheson, then interpreted that language to mean all of its provisions, which, of course, was correct.

Fourth, that the Secretary of State, who was the spokesman for the administration, then interpreted the words "constitutional processes" to mean congressional approval insofar as a declaration of war or the employment of their troops in any foreign country was concerned, and that language was designedly inserted into the treaty.

Fifth, that the administration accepted this interpretation of article 11 and agreed that it should be incorporated in the treaty. Incidentally, in the Senate the treaty won many votes that otherwise would have been cast against ratification. I make that statement on the basis of the private comments, if one can believe them-and I do believe them-of Senators who at that time had some doubts about the claims made by the Foreign Relations Committee.

Sixth, that the only difficulty which has arisen is because the Executive has failed to follow a straightforward course and to act in accordance with the power delegated to him by Congress, or in this case by the Senate.

IMPLEMENTATION BY CONGRESS

Shortly thereafter in the debate the senior Senator from Utah had the following colloquy with the senior Senator from Georgia [Mr. George]:

"Mr. WATKINS. I understand the Senator from Georgia has declared that the treaty itself provides that all parts of the treaty are to be implemented by the action of Congress.

"Mr. GEORGE. Undoubtedly.

"Mr. WATKINS. And the Senator was the author of that provision, was he not? "Mr. GEORGE. I insisted upon that language. I wanted it in a little stronger form, but when I was assured that that form covered everything I had in mind, I accepted it."

Again from that colloquy between the Senator from Utah and the Senator from Georgia I quote the following:

"Mr. WATKINS. As I understand, then, the Senator from Georgia believes that this is a special case, which does not in the slightest degree have any bearing whatever on the President's general powers.

"Mr. GEORGE. I do not think it necessarily has any bearing on his general constitutional powers, because the treaty itself, in its four corners, controls so far as its implementation is concerned."

Again from the colloquy I quote:

"Mr. WATKINS. I take it for granted also that the Committee on Foreign Relations was in agreement with the Senator's interpretation at the time as to what the term "consitutional processes" meant. Is that correct?

"Mr. GEORGE. That is exactly correct. This interpretation was expressly spelled out in our conferences.

"The distinguished Senator who is chairman of the Committee on Foreign Relations [Mr. Connally] would bear out the statement which I have now made, as also would the late distinguished Senator from Michigan, Mr. Arthur Vandenberg, who was then a member of that committee, if he were present. I have no doubt on earth about the question, and for that reason I have grave misgivings about the Senator's interpretative reservation."

I thereupon announced that I would be willing to withdraw my interpretative reservation if the chairman of the Foreign Relations Committee [Mr. Connally] approved the statement of the Senator from Georgia [Mr. George] as to the interpretation and meaning of the treaty. The Senator from Texas [Mr. Connally] in substance said:

"I should like to ask the distinguished Senator from Georgia if he will briefly restate his position because I think I am in entire agreement with him."

LEADERS AGREE

I might interpolate at this point to say that the Senator from Texas, chairman of the committee, was in the Chamber, as I recall, during the time of my colloquy with the Senator from Georgia, and during the time that the Senator from Ohio [Mr. Taft] had a colloquy with him, as well. I resume the quotation from the remarks of the Senator from Texas:

"The Senator from Utah has now called on me to state whether or not I agree with the Senator from Georgia. I should like to have the statement of the Senator from Georgia briefly recounted. We agreed in the Senate committee without any division, as I recall."

Quoting further:

"Mr. GEORGE. Exactly.

"Mr. CONNALLY. The late Senator Vandenberg, the Senator from Texas, and the Senator from Georgia certainly were all in agreement on the proposition. "Mr. GEORGE. In effect, it was that the treaty in all its provisions would be carried out according to the respective constitutional processes of the various countries. In our report we expressly pointed out that "constitutional processes" meant congressional approval so far as the treaty or its provisions were concerned. We were at great pains to say that we were not discussing or undertaking to limit the broad general powers of the President of the United States under the Constitution, but that we were discussing this particular treaty and its terms."

With this statement of the Senator from Georgia, the Senator from Texas seemed to be in full agreement, so that there could be no doubt about the interpretation of article 11. The Senator from Utah asked a further question of the Senator from Texas:

"Mr. WATKINS. I want to know if article 11 means that the provisions of this treaty are to be implemented by the Congress.

"Mr. CONNALLY. How does the Senator think they are to be implemented? Does he think they are to be implemented by the bootblack in the barber shop. Of course, they are to be implemented by the Congress, within its constitutional powers.

"Mr. WATKINS. Does he agree with the Senator from Georgia?

"Mr. CONNALLY. I will tell the Senator that before I get through. I will say that I do.

PROCEDURE WELL DEFINED

Mr. President, we now have a clear-cut definition of the meaning of "constitutional processes" as used in article 11. This is not only the definition of the words "constitutional processes" after the treaty was drafted and signed and presented to the Senate, but it is also the interpretation of the members of the Foreign Relations Committee who actually assisted in the drafting of the treaty. Article 11 was in fact a committee draft and carried with it the committee interpretation, to which the Secretary of State agreed, that all parts of the treaty were to be implemented by Congress.

Well, such is the legislative history of the meaning of article 11 as developed in the debate immediately prior to the ratification of the protocol on the accession of Greece and Turkey to the treaty. Can there be any doubt of the responsibility of the Congress with respect to the implementation of all the provisions of the North Atlantic Treaty? Can there be any doubt that the President of the United States was bound by the agreement entered into by his Secretary of State representing him, and the Foreign Relations Committee, as to the interpretation of article 11?

The clarifying statement of Senator George, which goes far beyond anything that was said in the original debate on the North Atlantic Treaty as to its interpretation and the substantial agreement of the Foreign Relations Committee with its version of what happened should establish beyond all doubt how the treaty is to be implemented.

Mr. President, my objective in offering the interpretative reservation to the protocol admitting Greece and Turkey to the treaty was to protect and to make clear the rights of the Congress to implement the treaty in all its parts. I wanted to protect the constitutional power of the Congress to declare and make war with all the implications growing out of that power. I wanted to make it clear to all the world that the people of the United States, through their Representatives in Congress, have the final word in deciding whether there shall be war or peace, in deciding whether or not their Armed Forces shall be sent to foreign countries to garrison and defend those countries under the terms of any treaty entered into by the United States and specifically under the North Atlantic Treaty.

SITUATION CLARIFIED

When the debate made it so crystal clear for the first time that only the Congress could implement the treaty with all its provisions and that the President of the United States, through his Secretary of State, Dean Acheson, had agreed

to that interpretation, then I felt it was my duty to withdraw my interpretative reservation and to accept what was, to my mind, a very strong assurance that insofar as the Senate was concerned, everything had been done to protect the power of the people through their Representatives in Congress to decide the important matter of war and peace and the disposition of the troops and Armed Forces outside the United States and its borders.

AWARE OF DANGERS

Mr. President, I have not been blind to the dangers which confront this Nation to the threat of Communist aggression in the east or the west. I voted for the Greek-Turkey loan and supported it each time it was before the Congress. I voted for the Marshall plan and supporting appropriations. I voted for the Draft Act. I voted for all defense measures that have been before the Congress except the North Atlantic Treaty when it was first presented, and on the final vote for accession of Greece and Turkey to the North Atlantic Treaty I cast my affirmative vote for the inclusion of these countries within the pact. I voted too for the Mutual Security Act which is the current program for the economic and military aid to our allies in Europe.

Mr. President, in view of what has happened in Korea, this insistence on an observance of the treaty which is the law of the land is not an academic matter. Failure to do so may affect adversely the liberties and lives of all American citizens.

To justify his action in taking us into an undeclared war in Korea, the President cites actions of other Presidents in defending the lives and property of citizens of the United States.

If no protest is made by Congress to the President's action in violating the terms of the North Atlantic Treaty, he or some future President will cite his present unlawful conduct as a precedent for future independent actions by the executive office.

It has many other practical implications. What agreements has the President entered into with our allies for the establishment of an international army? What agreements are in the making with West Germany? With the Benelux countries? What commitments have been made to make Americans a part of a permanent international army? In fact, does the Congress know the full extent to which the President has committed this country under the guise of his asserted right to implement the treaty independently of Congress?

NO MORE YALTAS

Mr. President, are there little Yaltas, Tehrans, Potsdams in the making, or have some already been concluded by the President in violation of the terms of the North Atlantic Treaty?

These questions should be put to the President by the Congress. Congress should require an answer. The Congress must never again permit the President to make international commitments in the nature of treaties without consulting the Congress or seeking its approval. There must be no more Yaltas and Potsdams.

*

February 7, 1952

Mr. MILLIKIN. I have to leave the Chamber. Before doing so, I wish to express my warm appreciation to the distinguished Senator from Utah for having offered his amendment or reservation. I think its effect has been to clarify a number of matters which needed clarification. I think he has rendered a great service in provoking the discussion which has ensued. I also wish to express my appreciation of his unceasing vigilance for the protection of the Constitution of the United States.

Mr. CASE. Mr. President, I am happy to have that statement made at this time by the distinguished Senator from Colorado, for it is a tribute which certainly is due the Senator from Utah. By reason of the questions he has raised, he certainly has contributed an understanding of the pact and, I hope, to the clarification of our foreign policy.

"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

1

"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." 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 reports 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:

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.

"'II. Requests the United Nations Commission on Korea :

66 6

(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 thirtyeighth parallel; and

66 6

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

"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 Governmont, 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:

66

'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:

66

"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.

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."

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