"There is always a philosophy for lack of courage."—Albert Camus

Thursday, July 21, 2016

As A Legal Matter, MacArthur Was Right And Truman Was Wrong


My goal here is to convince you that nearly everything you have been taught about this subject is incorrect. As a legal matter, MacArthur was entirely justified in regard to the course of conduct he took during the Korean conflict. It was Truman who acted without good legal authority.

To convince you, I will use a hypothetical: 


The position of U.N. Secretary General becomes vacant. The President of the United States, Harry S. Tompkins, nominates an American for the post: Commodore Dora “Old Mac” MacIntyre. Old Mac garners sufficient votes among U.N. member states, and she becomes Secretary General. (Yes, I know—an American Secretary General is very unlikely—but cut me some slack—this is a hypothetical.) Mac is a busy woman, and for whatever reason, she fails to take herself off the list of actively serving U.S. naval officers.

A year into Old Mac’s term (as Secretary General), and three years into Tompkins first term (as President), the U.N. Security Council authorizes a war peacekeeping mission to separate the competing populations, political factions, and regular and irregular armies and militias in Ranzibar. U.N. forces are composed of units on loan from member states: e.g., Fiji, Ireland, U.K., and the U.S. Not surprisingly, the U.S. provides just over 50% of the U.N.’s forces and war materiel. Furthermore, in a surprising show of confidence in Old Mac, the Security Council formally grants Old Mac operational control over the U.N.’s mission: Road to Ranzibar. Old Mac decides which operational units go where, and she sends the largest American contingent to Port Kelvin: the most dangerous theatre in the peacekeeping mission.


President Harry Tompkins is running for reelection. He does not want a high American body count (at least not quite yet), but at the same time he had directed the U.S. ambassador to the U.N. to vote for the U.N. Security Council resolution authorizing the mission. So he cannot withdraw U.S. forces either. What to do? The legal advisor to the Joint Chiefs in the Pentagon sends President Tompkins a memorandum reminding the President that Old Mac is still very much on the U.S. Navy’s active duty list. The legal advisor says, Just order Old Mac to take U.S. troops out of Port Kelvin. The President issues his “order”—marked “Top Secret: for your eyes only”—and sends it to Old Mac through the Joint Chiefs, and then via special messenger. The Security Council was not in the loop; indeed, Old Mac felt duty bound to disclose the “order” to the Security Council, which proceeded to disclose the order to the world.

Once the order was disclosed by the Security Council to the world, Old Mac went on television—twice. She gave two speeches. One speech was directed to the world; the second speech was specifically aimed at her American audience. This is what she said to her fellow countrymen:
                   
My fellow Americans—I was born an American, I am an American, and I will remain a loyal American until I die. I am also—for a short time—Secretary General of the United Nations.
I have this position only because during World War II, the United States lawfully ratified the U.N. Charter, making that treaty part of the supreme law of our land. I have this position only because President Tompkins nominated me to this post, to be held by me while on loan from my regular duties in the United States Navy, to which I hope to return one day. I am only here because the General Assembly elected me to this post. And, I am only here because the U.N. Security Council authorized this mission and also gave me personal operational control over Road to Ranzibar. As long as I hold the position of Secretary General, and in regard to my responsibilities relating to this or any other U.N. authorized mission, I am not amenable to so-called orders issued by the President and/or the Joint Chiefs. I say that with respect and with regret. Today, I stand before you not as a Commodore in the U.S. Navy; instead, I stand before you as an international civil servant and the military commander of an international peacekeeping force. During this time, I am answerable exclusively to the Security Council, and I am obligated to obey its orders, and not the President’s.

When the President’s purported order reached me, I was duty bound to turn that document over to the Security Council. Again, I say all this with considerable respect and with regret. The President’s legal advisers have given him poor advice. The reality is that a functioning United Nations, as embodied by the Charter, and the conventions of customary international law, positively mandate that U.N. officers are answerable to the U.N. and the Security Council, and not to the member state governments from which they came.

The President may have put me here, but I am not answerable to him. Indeed, other nations are only willing to participate in U.N. actions because they believe that U.N. officers are acting independently of instructions from member state governments. We all know this. Strict obedience to the President’s order would be the very death knell of the U.N. It is the President’s so-called order which threatens the rule of law, not my failure to obey it.
As a legal matter, the President’s order is void, but I acknowledge that as a practical matter I cannot successfully pursue my duties, and Road to Ranzibar cannot succeed, without the active support of the President. Too many lives may be lost, too much treasure will be wasted, if I allow this mission’s success to be hindered by personalities, stubbornness, and error—from whatever source it may have sprung. For all these reasons, I choose to resign from my position as Secretary General, and I will continue to stay out of politics, as I have in the past, and as I have up until and including this very day.
Having now resigned all international offices and responsibilities, I close with: May God bless and keep our armed forces in safety, everywhere.

So here is my question:

Under what authority could Truman order MacArthur to do anything during the Korean conflict?

Seth

29 comments:

pikkumatti said...

I'd say Truman could order MacArthur to do whatever under his Constitutional authority as Commander-in-Chief. If there is a conflict between that authority and the treaty obligations of the US, that conflict is Truman's conflict, not MacArthur's.

If MacArthur is serving two roles, and receives conflicting orders from the two, then he must refuse one of the two orders and suffer the consequences of doing so. The inconsistent order does not excuse violation of the other. MacArthur's rationale for choosing one over the other is irrelevant.

Tim Kowal said...

"If there is a conflict between that authority and the treaty obligations of the US, that conflict is Truman's conflict, not MacArthur's."

Something to that, I think. For me, the wrinkle is Mac, as military, falls under the direct chain of command to the president. Too avoid conflicts, military should not serve in roles that hope to be independent of other obligations. By elevating a beholden Mac to that position, the UN took him with notice of all strings attached.

StormCchaser said...

This is way too easy. Truman was CIC and McCarthur was in the US Army. That means Truman commands him. Period.

Ed said...

Seth,

Greetings from an old friend from law school. Although your legal scenario is interesting, practically it didn't really apply to the Macarthur/Truman controversy because I believe the other relevant UN members were as or more horrified by Macarthur's ideas than Truman was (the British were so happy when he was relieved that Churchill had to calm them down for decency's sake). South Korea, I suppose, would have supported Macarthur, since Synghmann Rhee wanted to lead a unified Korea, but apart from that our allies had become fairly soured on Macarthur, to the best of my understanding.

This is not to bash the real "Old Mac"--I'm kind of a Macarthur fan, but in real like Macarthur could not have played the card you mention because his relief by Truman caused relief in all of our allies' capitol's (with the possible exception of Seoul).

TerryA said...

Truman's authority as CIC was, and must remain, paramount. To hold otherwise would be a surrundering of American sovereignty nowhere authorized in the constitution. If it were not so, who would enforce the Secretary General's view, and how?

Silly hypothetical.

Alan said...

Mac had a choice. Obey the commands of the Commander-In-Chief, or resign his commission as an officer of the United States Army.

The Constitution of the United States clearly defines the President as the supreme commander of all United States military personnel, at all times and in all places. In refusing to do so (or resigning his commission) Mac was violating the constitutional precept at the very CORE of the US Armed Forces and the Constitution, which is civilian oversight and control of the military.

Pikki said it best, the treaty conflict (if there was one) was between the United States and the UN, which means it was between the President (as the Head of State), the Congress, and the UN.

Mike Feehan said...

After 70 years? This is helpful?

And what next? That FDR was wrong 75 years ago to declare a day of infamy, and that he should instead have called for finding those Japanese pilots and bringing them to justice?

Yeah, right. I think this article mostly illustrates yet again what a mistake it is to permit lawyers to set foreign policy.

rcocean said...

MacArthur was fired because he disagreed with Truman's "die for a Tie" policy and said so in a letter to Congress.

People forget the Congressman asked for his views. Big Mac wasn't running around giving press conferences about his policy disagreements.

Mac never attacked Truman for firing him. In fact, he said he would have gladly resigned if Truman had asked him to.

Californio_6th_ gen said...

Re: A modern critique of FDR. I note that Korematsu has not been overturned.

tankdemon said...

No treaty can override the Constitution, which makes the President CinC of American forces, regardless of who the Security Council assigns operational control. If the Presidentnwantsnour forces out of Kelvinator, he only need tell our commanders on the ground to move them out, though he should, as a courtesy, inform the "operational commander" what he is doing, he has no obligation to request that it be done.

Also, I have not delved deeply into the operations in Korea, but I am fairly certain that MacArthur's assignment as commander of UN forces was contingent on his being assigned as the Commander of American forces, thus totally subordinate to Truman regardless of any other duties assigned by other entities.

Anonymous said...

Yeah, this is really dumb and I wasted my time.

LifeoftheMind said...

When the UN Charter was adopted the intent was to create a UN military consisting of national forces transfered to UN control or obligated under agreements prenegotiated with the UN to respond when called upon, similar to how state militias must respond to federal mobilization in the US. The Charter in articles 42-48 contains the mechanism for negotiating and implementing those agreements and includes provision for a standing Military Staff Committee under the Security Council that would have operational control of those UN forces. Because of the break between the Soviet Union and the Western Powers that became apparant during 1946-'47 no agreements were ever negotiated and the system laid out in the Charter was never used. It became a dead letter from day one and the military oversight committee is a ghost that meets pr forma once a year.

The Korean war was never authorized by the Security Council as an operation under the control of the UN as envisioned by the Charter. Instead while the Soviets were out of the room boycotting the UN, because Mao was not recognized, a call for action did slip by in UN Security Council under resolutions 82, 83, and 84 that called for member states to make forces available to serve under the command of the United States and authorized that command to use the UN flag. The Soviets protested that only 5 affirmative votes should count by the Permanant Powers and that their absence was as good as a veto. Later the General Assembly, which under the Charter was not expected to have any role in peacekeeping operations. passed the Uniting For Peace resolution that called for the General Assembly to act when the Security Council cannot. The United States had already sent troops and agreed to allow its commander, Douglas MacArthur, to assume control of all UN forces and to act as overall commander.

As Supreme Commander of Allied Forces in Japan macArthur theoretically represented the victorious Allied Powers of WW-II who created the UN, although Japan was not under the control of the UN. That did not matter since at that time it was understood that the UN was a tool that served the Powers and not the other way around. The use of the General Assembly, soon to be swelled by decolonization but at that time under the control of the Western Powers and their clients, to do an end run around the Security Council created a precedent for allowing the Developing World tail to wag the Developed World dog that we now suffer from. It transformed the UN from a servant to a theoretical master which once used against the Soviet's interest is now used against ours.

Since MacArthur was only there because he was ordered to come to the aid of the South Koreans in his capacity as the US general in command of the occupation of Japan he was subject to the orders of the US President. At no time did MacArthur ever claim that he was not under the command of the President. After serving as Chief of Staff of the Army he had retired in 1937 and then served as the Military Advisor to the Commonwealth of the Philippines, which was a US protectorate at the time. MacArthur was recalled to active duty in 1941 and it was in that capacity that he went to Korea. The UN has since stated that the command in Korea is an American command that was created by America and can only be disbanded by America. While the Security Council could order the termination of the mission, subject to a veto, the Secretariat and the General Assembly have no operational control over it.

The legal argument that MacArthur was bound to serve the UN and not the President would place him in the position of William Lethal, Speaker of the House of Commons, who replied to a question by King Charles I, "May it please your Majesty, I have neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me, whose servant I am here" Seven years and a month later Charles was beheaded.

Seth said...

Letter from MacArthur, as Supreme Commander of Allied Powers, to U.S. Secretary of State Dean Acheson (1949) (MacArthur claimed “international status,” and exemption from control from Washington, well prior to the Korean conflict).

See, e.g., Michael Schaller, The American Occupation of Japan: The Origins of the Cold War in Asia 167 & 322 n.6 (1985):

"By no stretch of the imagination," [MacArthur] informed Acheson, could the State Department compel him to transfer authority to American and Japanese civilians as had recently taken place in the Western zones of Germany. Once AGAIN, the Supreme Commander asserted that his special "international status" exempted him from normal control by Washington." (emphasis added)

Unknown said...

Whatever Abraham Lincoln used.
QED

Seth said...

See, e.g., Michael Schaller, The American Occupation of Japan: The Origins of the Cold War in Asia 27 (1985):

"The Supreme Commander [of Allied Powers]in Japan, Gen. Douglas MacArthur, occupied a dual role. As SCAP, [MacArthur] ... represented all the Allies and served as their delegate to in carrying out the Potsdam Declaration."

Jim O'Sullivan said...

How crucial a fact is it to your hypothetical that Tompkins was seeking re-election? Is that thrown in just to give Tompkins an evil motive?

Because the way I hear it, Tompkins wanted General Ironminer, who had just won Earth War II, to replace him in office around that time. But even if that's not true, does Tompkins motive have anything to do with the propriety of his decision?

Anonymous said...

Dumb dumb dumb dumb.

Boy, talk about failing to place something in its proper time and context.

In 1950, Russia was absent from the Security Council. They hadn't yet realized that they could cause more mischief in than out. The UN was a US operation, and the UN man was the President's man. Korea was a US war, no matter how we made it out to be a UN operation.

So no, Truman was in charge. The buck stops here.

Once again, what a dumb and historically illiterate article. My lifeforce has diminished from reading it.

And of course, he's a hippie.

https://www.maynoothuniversity.ie/faculty-social-sciences/our-people/seth-barrett-tillman

Ken MacDonald said...

pikkumatti,

I'd say Truman could order MacArthur to do whatever under his Constitutional authority as Commander-in-Chief

Except that under the UN charter, Truman is not the Commander in Chief of UN forces and has no authority to give MacArthur orders on how to command UN forces.

If MacArthur is serving two roles

Duplicitous as fuck, given that Truman ordered MacArthur into that role.

Seth said...

Ken, Your a genius. You put it so much better and so much more succinctly than me.

Anonymous--I have never before been called a "hippie". But given time and effort, you might figure out why I appear the way I do in my picture. Your powers of observation, inference, and deduction could use some improvement. Maybe you should visit the mind palace more often?

Seth

Eric said...

Seth,

I disagree.

You misunderstand that the United Nations Command since 1950 has not been a "blue helmet" operation. Disclosure: I served in Korea as a US soldier and I didn't wear a blue helmet there. The legal basis for UNC USFK on which I served in Korea in the late 20th century was carried forward from my honored Army predecessors' initial deployment under President Truman.

UNC has not been a UN force as such. It's been a multinational coalition led by USFK enforcing UN mandates under sovereign authority as "executive agent".

From http://www.usfk.mil/About/United-Nations-Command/:
__The predawn quiet of a rainy, peaceful Sunday morning, June 25, 1950, was abruptly shattered by the crash of cannons and the snarl of automatic weapons as soldiers of North Korea marched southward. ... Two days later, the United Nations called on the countries of the world to unite and assist in driving the invader from the ROK. In its resolution, the UN Security Council named the United States as executive agent to implement the resolution and direct UN military operations in Korea.
... By then, the UN had issued a further appeal to all member nations to provide what military and other aid they could to assist the ROK Government in repelling the invaders.__

Your post erases the legal distinction between UN "blue helmet" forces that are directly under UN authority and UN authorization for member nations to enforce UN resolutions under sovereign authority.

For contemporary comparison, the UN authorization for the Korea intervention is analogous to the UN authorization for the Iraq intervention. The Iraq intervention, in which various US-led military actions have enforced the UNSCR 660 series since their initiation in 1990, including the invasion and peace operations of Operation Iraqi Freedom, has been conducted with UN authorization for member states to enforce UN mandates. [Reference: Answer to "Was Operation Iraqi Freedom legal?"]

Compare:

UNSCR 84 (1950) http://www.refworld.org/docid/3b00f1e85c.html:
__3. Recommends that all Members providing military forces and other assistance pursuant to the aforesaid Security Council resolutions make such forces and other assistance available to a unified command under the United States of America;
4. Requests the United States to designate the commander of such forces;
5. Authorizes the unified command at its discretion to use the United Nations flag in the course of operations against North Korean forces concurrently with the flags of the various nations participating;__

UNSCR 678 (1990) http://fas.org/news/un/iraq/sres/sres0678.htm:
__2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;
3. Requests all States to provide appropriate support for the actions undertaken in pursuance of paragraph 2 of the present resolution;__

Notice that at the dawn of the UN, the language of UNSCR 84 was more deferential to the various national character of the UNC coalition that enforced UN mandates with Korea than the language in UNSCR 678 that "Authorize[d] Member states" to enforce UN mandates with Iraq.

Despite what GEN MacArthur may have believed, his authority in the Korea intervention remained entirely within the US military chain of command.

Eric said...

Add: Regarding the basic analogy of your post, notice that UNSCR 84 "Recommends...all Members...make such forces and other assistance available to a unified command under the United States of America" and "Requests the United States to designate the commander of such forces".

The UN recommended/authorized the US as "executive agent" of UN mandates with Korea, not GEN MacArthur as such.

Anonymous said...

A little late to the party--I believe the controlling issue here is that American general officers/flag officers (Navy) serve at the pleasure of the President. MacArthur's qualification for serving as UN commander depended entirely on his being an American general officer. Mac has already retired from active duty, which as every retired military member knows means that you're vulnerable to recall. And we're back to serving at the pleasure of the President.

The UN structure has no commissioning structure or authority; same with NATO and the other multinational treaty organizations. An illegal order from an NGO, even the United Nations, would provide no legal cover to an American servicemember who obeyed it. I have difficulty visualizing a situation in which an NGO could legitimately punish a servicemember from any member state.

Eric said...

Anonymous at 7/22/16, 5:44 PM,

I suspect this post is a sneaky test by Professor Barrett for his readers.

It's well known by history, political science, and legal scholars that the founders of the UN purposely limited the military capability of the UN. The UN was designed to depend on sovereign militaries for enforcement of UN mandates that required more than the limited military capability allowed to the UN.

Eric said...

Excuse me: Professor Tillman. Barrett is Seth's middle name.

Al Dweebish said...

Let's assume that you're correct, the UN has the right to dictate operations. Truman still had the right to relieve MacArthur and replace him. He was 'on loan' not deeded property...

That would, of course, have repercussions on operational matters, but that's between the government and the UN.

As a matter of practicality, I don't believe the Secretary General, or any other part of the UN, takes a great deal of interest in day to day military operations; it's managed by whatever country is leading the effort. Which is why so many UN efforts have their corruption ignored.

Jonathan Rowe said...

At the 2 minute mark this movie clip also tackles the issue but from more of a policy as opposed to legal perspective.

https://youtu.be/9Hn9xAaKUbw

Rich Rostrom said...

AFAICT, the UN never appointed Macarthur. The UN appointed the US to fight the war, and the US appointed Macarthur to command of the forces there. Thus the line of authority ran from the UN through Truman to Macarthur, and Truman had authority over Macarthur.

Or to ask a related question: If Truman could not fire Macarthur, who could? Would it require a UN resolution? Would it have to be a Security Council resolution, and therefore subject to Soviet veto?

I think your "Secretary General Macintyre" analogy fails, because the SG is a sworn officer of the UN, elected by the UN. Macarthur never made any pledge of allegiance to the, and was not chosen by the UN.

To take the analogy to a ridiculous point: suppose a former US military chaplain, who has a reserve commission, is elected Pope. Can the President now give orders to the Pope?

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