The Gloss of War: Revisiting the Korean War’s Legacy

Mary L. Dudziak* November, 2023

In war powers analysis, reliance on the interpretive method of historical practice, also called the “gloss of history,” has made history a technology of the forever war. This approach draws upon the history of U.S. military conflict to interpret the scope of presidential war power and embeds past actions into the separation of powers. There is a crucial flaw in this methodology, however. The understanding of history in historical gloss is not informed by the changing historiography of war. This has led to a divergence between the “history” in legal authority and the revised historical understanding in scholarly works of history. Whereas lessons of history in other contexts often serve as levers for reexamination of government action, in gloss-of-history analysis the past instead serves to legitimate settled practices. The consequence is that presidential overreach is not recognized and corrected, but instead built into the doctrine of expanding unilateral power.

This Article is the first to examine how static ideas about history in legal analysis have aggrandized presidential war power. It analyzes the most important example of this: President Harry S. Truman’s unilateral actions in the Korean War and subsequent reliance on his example in executive branch legal opinions. The war is a principal precedent supporting the idea that presidents may use substantial military force without congressional authorization. This has legitimated unilateralism in less massive wars, and since that time all U.S. uses of military force have been in conflicts smaller than Korea, with the exception of the war in Vietnam. Decades of historical scholarship, however, have shown that Truman misunderstood the nature of the conflict and disregarded Congress’s role, and that his advisors failed to seriously consider Congress’s war authorization power until after force was deployed. Historians have also shown the devastating costs of war for Koreans, whose experience is not centered in the U.S. war powers literature. Historical revision did not prompt legal reconsideration, however. Instead, the Korean War is calcified as a significant precedent supporting executive unilateralism, undermining democratic limits, and enabling ongoing war. The Article argues that gloss of history analysis must be dynamic, attentive to the way understandings of the past change over time. An approach to gloss informed by historical revision could reassert history’s role as a critical perspective on law.

What must be regarded as the high water mark of executive action without express congressional approval is, of course, the Korean War.
—William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel (1970)¹

Introduction

The use of history as a consequential feature of legal analysis has become especially significant as the Supreme Court has relied on originalism to overturn Roe v. Wade.² Another form of historical analysis is also deeply consequential but has received less attention: reliance on the “gloss of history” in the war powers context.³ Whereas originalism has fueled radical constitutional change, historical gloss can cement errors of historical understanding as precedent. Each war’s history becomes a narrow data point, rather than a contested event subject to reinterpretation over time. The idea of history then serves to legitimate unilateral presidential military action, yet a failure to incorporate historiographic change allows precedent to depart from the “history” decisionmakers seek to replicate. In this way, a static version of history enables war without restraint.

The classic expression of the “gloss of history” comes from Justice Felix Frankfurter’s concurrence in the 1952 Steel Seizure Case.⁴ He explained that “[i]t is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.”⁵ Instead,

a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on “executive Power” vested in the President by § 1 of Art. II.⁶

In gloss-of-history analysis, the historical workings of the federal government are evidence of the proper division of powers between Congress and the executive.⁷ Executive branch legal opinions rely extensively on this interpretive method in opinions about the scope of presidential power.⁸ As used, however, the history informing historical gloss becomes fixed precedent, even when our understanding of the underlying historical events changes based on new archival evidence and new approaches to historical scholarship. In the war powers context, presidential actions in past conflicts become historical gloss, and serve as building blocks of presidential war power, but become disassociated from historians’ understanding of the conflicts.⁹ This can lead to two divergent understandings of historical events: one in historical scholarship, and a different one in a gloss-of-history legal analysis.

This Article is the first to reveal this fracture in historical understanding, illustrating it through a focus on one consequential example: the Korean War and its uses as precedent in the opinions of the U.S. Department of Justice’s Office of Legal Counsel (OLC) and U.S. Department of State. The first large-scale, post-WWII U.S. foreign conflict that was not declared by Congress,¹⁰ it is a central precedent for presidential authority to commit substantial military force without congressional authorization, thereby legitimizing unilateralism in deadly, though less massive, conflicts in later years.¹¹ Reliance on the Korean War as an aspect of the gloss of history is not informed by subsequent decades of historical scholarship or by analysis of the archival record itself.¹² This example demonstrates that when history becomes “gloss” in legal opinions, it can become disconnected from historiography—from the way understandings of the past change over time.

The Korean War example shows that the disconnect between the gloss in legal precedents and the historiography has important consequences. As this Article demonstrates, the historical record of the war reveals a deeply flawed and antidemocratic decisionmaking process in 1950, with President Harry S. Truman treating Congress as a political problem, not a source of constitutional authority for war.¹³ He insisted that the conflict was not a “war,” which would have invoked Congress’s declaration power, even as U.S. troops were on the ground in Korea and under fire, and after the potential use of atomic weapons had been discussed in a presidential meeting with key advisors.¹⁴ He also ordered the use of force before the United Nations Security Council (UNSC) authorized it, so that his most significant act rested on presidential power alone.¹⁵ Finally, the president’s central justification for urgent action in Korea turned out to be wrong. Truman believed that the attack was part of a larger Soviet plan to extend its power, even though some members of Congress saw it as a conflict principally between Koreans. Archival evidence released decades later showed Soviet reluctance to act and North Korean agency, and illuminated the peninsular origins of the war.¹⁶

Once turned into gloss, however, Truman’s disregard of constitutional requirements ossified into precedent. The fact that he acted unilaterally became evidence that presidents, in fact, have power to go to war on their own.¹⁷

The Korean War example reveals an important flaw in historical gloss analysis. When executive branch lawyers and others rely on historical examples, the underlying history should not be fossilized. When history serves as a gloss on constitutional power, it must be subject to critical analysis and informed by the evidence and methods employed by historians.

Part I of this Article examines the significance and the methodology of historical practice, highlighting the scholarship of its leading proponent, Curtis A. Bradley.¹⁸ It also takes up the surprisingly limited scholarly criticism of this consequential methodology, particularly the lack of previous scholarship on the way historical practice uses history.

Part II illustrates the importance of subjecting the history in historical gloss to reinterpretation through a close examination of the Korean War. The war was a critical historical moment when U.S. war powers were reshaped, ushering in the legal order of the contemporary “forever war.”¹⁹ For the first time, the United States entered a major overseas war without congressional authorization, setting a troublesome precedent.²⁰

Section II.A focuses more closely than other historical works on the question of the legal authority President Truman had to order military action at the time he made the decision to go to war. Based on archival research and scholarship in military and foreign relations history, this Section argues that Truman’s decision not to seek a war declaration or authorization for the Korean War was not carefully contemplated or well-reasoned, disregarded congressional concerns and constitutional objections at the time, and was a matter of political, not military, expediency.²¹ The Article closely follows the archival record on internal deliberations about whether to seek congressional authorization. The notes of a close Truman aide show that going to Congress was not contemplated during the crucial days when it would have been most important and, for Truman, most likely to be successful.²² The president also ordered force before the U.N. Security Council authorized it.²³ This problem was obscured in the most cited contemporaneous legal authority on the war, a 1950 State Department legal memorandum.²⁴ Hence, Truman’s unilateral decision to go to war was based on weaker legal grounds than is commonly understood.

To understand what Truman unilaterally authorized, Section II.B examines an important feature of the Korean War: atrocity. Civilian carnage was endemic in Korea and elsewhere in Asia during the Cold War, leading historian Paul Thomas Chamberlin to call the region “the Cold War’s killing fields.”²⁵ Often called “collateral damage” in legal scholarship, the killing of civilians is better understood as a central feature of war, rather than an unintended side effect.²⁶ A U.S. Department of Defense report on a Korean War massacre of civilians by American troops called it a tragedy “inherent to war,” rather than a war crime.²⁷ The devastating human impact of the war, and therefore the concrete dimensions of the war power, are lost when the war is turned into a presidential power data point in historical practice analysis. This Section argues that if civilian massacre is inevitable and “inherent to war,” it must be understood, acknowledged, and considered in war powers analysis. Civilian losses underscore the fact that the Korean War was not a “police action,” as Truman claimed, but a brutal war that required authorization by Congress.

Part III shows what happens when history gets locked in as gloss. The war’s history became, in essence, a feature of the law of presidential power. If a large-scale war like the Korean War could lawfully proceed without congressional authorization, then smaller conflicts fit easily within the historical practice of American war powers.²⁸ Over time, changes in technology enabled the United States to use military force with fewer “boots on the ground,” so that all U.S. conflicts were smaller than the catastrophic Korean War.²⁹ Meanwhile, Truman’s mischaracterization of the war was criticized by historians, but not by executive branch lawyers.³⁰ Instead, they used gloss-of-history analysis to argue that wars smaller than Korea fit easily within the scope of executive power.³¹ Because all U.S. wars now fall into that category, this reinforced presidential unilateralism and undermined democratic limits on the presidential war power.

Section III.A examines the Supreme Court’s skepticism about the Korean War as it was underway. Section III.B traces the way Truman’s unilateral decision for war became part of the gloss of history and a principal authority for the use of force without congressional authorization, as reflected in opinions of the OLC. Reliance on a flattened understanding of the war enabled two legal interpretations. First, the idea that Korea was not a war but a “police action” helped shrink the constitutional meaning of “war,” narrowing the kinds of military actions subject to the Declaration Clause.³² Second, the OLC relied on the Korean War as authority for the idea that a U.S. “interest” provides the president with authority to commit the nation to a substantial military engagement without congressional authorization.³³ Section III.C argues that reliance on history in legal interpretation must not leave evolving historical understandings behind. Instead, reliance on history must be dynamic, informed by newly available historical evidence and methods of historical analysis. This would enable the past to play a cautionary role in war powers analysis, instead of each conflict serving as a building block of expanding presidential power.³⁴

The implications of these conclusions go beyond the war power. History has become a crucial legal technology, informing constitutional analysis across categories. Most familiar in recent years has been reliance on “originalism,” which conflicts with the way academic historians interpret the past.³⁵ In Dobbs v. Jackson Women’s Health Organization,³⁶ which overturned Roe v. Wade,³⁷ the Supreme Court majority relied on this form of historical argument to justify eviscerating long-standing precedent on abortion rights. Invoking the idea of history in Dobbs serves to legitimate radical change.³⁸ In the war powers context, in contrast, “historical practice” locks in past presidential action, shielding it from reexamination. The “history” in both contexts is unmoored from relevant bodies of historical scholarship. When this happens, the role of history is not enlightenment but legitimation of a legal position that is driven by other factors.

I. Historical Practice and Constitutional Interpretation

History has long been important to constitutional interpretation.³⁹ The Founding Era, and the idea of the “original public meaning” of the Constitution, has received broad scholarly attention in recent years⁴⁰ and has been a matter of general public debate.⁴¹ Other uses of history exist alongside originalism.⁴² Historical practice, also known as “the gloss of history,” has been especially important in the area of the separation of powers.⁴³ In spite of its significance, as the leading scholar of historical practice, Curtis A. Bradley, has noted, this method has not received substantial scholarly engagement and critique.⁴⁴ This Part describes the origins and methodology of historical practice, as well as previous scholarly criticism. It then turns to a neglected topic taken up in this Article: the way historical gloss locks in errors in historical interpretation.

Historical gloss as an interpretive method derives from Justice Felix Frankfurter’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, also known as the Steel Seizure Case.⁴⁵ In that case, the Court struck down President Truman’s 1952 seizure of private steel mills to block a threatened strike.⁴⁶ Truman had argued that keeping the mills open was important to national security during the Korean War.⁴⁷ In evaluating the separation of powers issue, Justice Frankfurter wrote that “[i]t is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.”⁴⁸ Instead, when there is “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution,” this made “such exercise of power part of the structure of our government,” so that it “may be treated as a gloss on ‘executive Power’ vested in the President.”⁴⁹ Because the touchstone of this approach is the actual historical workings of the separation of powers, Justice Frankfurter centered history in a different way than does originalist interpretation. Rather than divining the original public meaning of the words of the text at the time they were written,⁵⁰ Justice Frankfurter focused attention on how the Court’s coequal branches put the separation of powers into practice over time.⁵¹ Understanding the practice of the separation of powers requires decisionmakers to examine what the executive and legislative branches did, how they understood and conceptualized the context within which they were working, and how they apportioned power between themselves over time.⁵²

Curtis A. Bradley and Trevor W. Morrison focused scholarly attention on historical practice in a 2012 Harvard Law Review article, Historical Gloss and the Separation of Powers.⁵³ They argue that traditional analytical methods are inadequate to properly analyze the interactions between Congress and the president.⁵⁴ Instead, there is a need for reassessment of the role history plays in constitutional analysis.⁵⁵ For Bradley and Morrison, the idea of historical gloss enables assessment of the role that legislative acquiescence and deference to the president has played in shaping the commonly understood boundaries of presidential power.⁵⁶ Their article generated broader engagement with the method of historical practice.⁵⁷

Bradley expands on historical practice in subsequent articles.⁵⁸ He clarifies the methodology in a 2017 article, Doing Gloss,⁵⁹ which identifies four justifications for reliance on gloss: deference to the constitutional views of nonjudicial actors,⁶⁰ limits on judicial capacity,⁶¹ Burkean consequentialism,⁶² and reliance interests.⁶³ When courts rely on this methodology, he suggests that these justifications allow them to be less demanding in requiring evidence of institutional acquiescence than scholars tend to believe.⁶⁴ For Bradley, there is a value in not disrupting well-established constitutional practices, and he suggests that the use of historical gloss allows courts to interpret the law with these traditions in mind.⁶⁵

Legal interpretation that draws upon historical change over time has important advantages, enabling constitutional interpretation to be informed by the evolution of the separation of powers, as the United States transitioned from a fledgling state to a world power.⁶⁶ Although historical gloss methodology relies upon history, it has not received ample critical attention from legal historians, with one important exception. Alison LaCroix argues that Bradley and Morrison’s Historical Gloss and the Separation of Powers did not answer the question of how historical practice acquires its authority.⁶⁷ Bradley and his coauthors have since elaborated on justifications for the use of historical gloss, and they explain when it might be relied on.⁶⁸ Nevertheless, legal scholar Stephen M. Griffin argues that current use of historical practice in constitutional law is fundamentally flawed, and that practice-based legal interpretations are better understood as “rather thin theories of informal constitutional change.”⁶⁹

A more basic feature of historical practice has gone unexamined. In spite of the fact that this interpretive method requires an examination of the past, its proponents do not address the historical methodology questions of how the past can be known and what kinds of historical evidence should be relied on.⁷⁰ Also important is the need to reassess interpretations of history. Although legal precedents are sometimes qualified or overruled, the historical understandings embedded in gloss remain static and are not subject to historiographic change.⁷¹ This means that over time the gloss of history in legal opinions can diverge from the way the underlying history itself is understood. Absence of attention to historiographic change allows an outdated understanding of history to live on, disconnected from reinterpretations of the past by historians based on new archival evidence and revised methods. Rather than melting away, a static form of history is built in as precedent, generating more gloss that justifies future actions. This is especially true in OLC opinions, which are not subject to the kind of review and revision common for Article III court decisions.⁷² This problem is amplified by the fact that, in spite of the prominence of historical gloss as an interpretive methodology, as Curtis Bradley writes, the methodology of historical gloss has not been the subject of broad scholarly examination and critique as have other uses of history, such as originalism.⁷³

As Part II of this Article will illustrate, the reified character of historical gloss is especially consequential in the area of war powers. An important example is the use of the Korean War as precedent for unilateral presidential war power. The first major U.S. overseas armed conflict that was not authorized by Congress, it is the principal historical authority for the proposition that the president has unilateral power to use substantial force.⁷⁴ In an important article on the idea of an executive branch anticanon, Deborah Pearlstein suggests that Korea is an outlier, and that later presidents and their OLCs have not relied on it for the proposition that a president could engage in a conflict rising to the level of a “war.”⁷⁵ Pearlstein is correct about this; the Korean War’s importance is manifested in a different way, however. It helped shrink the concept of war itself, serving as an example of how far a president had gone without seeking congressional authorization, thereby legitimating smaller unauthorized conflicts.⁷⁶ The war is also an important authority for the idea that presidents can use substantial force unilaterally to protect American “interests.”⁷⁷ As the nature of U.S. war changed over time, with “light footprint” actions involving the use of force with few troops in harm’s way, more conflicts without congressional authorization could be justified under this framework.⁷⁸ Changes in the way the United States goes to war also enabled the American public to tolerate ongoing war, which helped entrench executive unilateralism.⁷⁹

II. The Making of Unilateral War Power

This Part uses a “thick description”⁸⁰ of the decision to use force in the Korean War to illuminate the disconnect between the way historians understand the past and the “history” that gets locked in as precedent in historical practice analysis. It shows that this disconnect has important consequences. The war established a precedent for presidential power to commit U.S. forces to a large-scale war without congressional authorization. A State Department legal opinion supporting the legality of the war, the most important contemporaneous authority that is cited in later precedent, was written in 1950, the year the war began, and became a cornerstone in gloss-of-history analysis in legal opinions.⁸¹ In the aftermath, historians’ understanding of the war changed substantially, informed by the release of new archival records and new approaches to writing military history. Historiographic revision has revealed that the Truman Administration misinterpreted the Soviet role, and that the North Korean government was the principal actor as the war began.⁸² This misinterpretation informed the Truman Administration’s assumption that the war was a Soviet initiative and therefore a major Cold War battle, making urgent action seem imperative.⁸³ Newer accounts also illuminate the devastating impact of the war for Koreans, making the idea that the conflict was less than “all-out war” untenable.⁸⁴ Reinterpretation of the war did not lead to a reexamination of historical gloss, which made the legal precedent dependent on a rejected understanding of the war. Once an episode enters the gloss of history, however, it is relied on without regard for significant changes in historical assessment.⁸⁵ The historical gloss that informs presidential power has remained static in spite of historiographic change.

American war is most often an abstract concept in legal scholarship on war powers, in contrast to contemporary work in military history that reveals the experience and brutality of war.⁸⁶ This Article includes the experience of Korean civilians, American soldiers, and others directly affected by the war. This inclusion helps illuminate what war powers do and should inform our understanding of their constitutional limits.

A. A Thick Description of the Decision to Go to War in Korea

Very early in the morning of June 25, 1950, near the 38th parallel that divides Korea, a teenager named Kim Yeh Soon heard the sounds of war.⁸⁷ Tanks advanced over the hillside, and people in her village ran and cried “a monster is coming!” Kim thought the earth was going to fall apart.⁸⁸ Conflict was not new on the peninsula, but the events that morning would soon lead to a cataclysm of violence. Democratic People’s Republic of Korea (DPRK) forces crossed a border between the North and South created only five years earlier.⁸⁹ They came “like a swarm of bees,” Kim Tae-hee remembered, as an endless line of soldiers and military equipment passed her home.⁹⁰ Terrified, Kim’s family and neighbors scrambled to pack and flee, and she became one of tens of thousands of Koreans on the move.⁹¹

The Korean War would be most consequential for Korean civilians. It also set the course for a world superpower: the United States. In a few days, without deliberation about whether to involve Congress, President Truman put the country on a path of projecting U.S. military power in Asia.⁹² This Section takes up the consequential early days of the war, detailing just how President Truman went to war without seriously engaging Congress until after the fact, and showing the impact on the ground for Korean civilians as well as American soldiers.

Japan occupied the Korean Peninsula from 1910 to 1945. At the end of World War II, the Soviet Union occupied the North, and the United States the South, as a temporary arrangement with the goal of reunification following elections.⁹³ Rising Cold War tensions impeded these plans.⁹⁴ Instead, when U.S. and USSR troops largely withdrew in 1948, they left power in the hands of the United-Nations- (U.N.) and U.S.-supported Republic of Korea (ROK) in the South, and the Soviet-supported DPRK in the North, but Koreans hoped for eventual reunification.⁹⁵ This resolution did not bring peace to Korea, however. Border skirmishes persisted, along with violent political purges in the North and South.⁹⁶ Larger-scale conflict seemed inevitable. Still, American and South Korean leadership were shocked by the North’s swift and effective June 25 invasion.⁹⁷

Expecting Soviet aggression, the Truman Administration thought that Joseph Stalin was behind the North Korean attack, an assumption questioned by some at the time and corrected by historians in later years.⁹⁸ Essentially, Truman’s advisors read the available evidence through a Cold War lens, and underestimated the agency and abilities of Koreans themselves.⁹⁹ This dynamic began with an initial intelligence report that emphasized the idea that the USSR was the controlling influence over the North Korean regime.¹⁰⁰ The report explained that “there is no possibility that the North Koreans acted without prior instruction from Moscow.”¹⁰¹ Invading South Korea was therefore assumed to be part of Soviet global strategy, and a template for further action elsewhere.¹⁰² American officials also believed that, if the United States failed to strongly support the ROK, it would undermine the confidence of Japanese and Southeast Asians in the value of an alliance with the United States, and would undermine U.S. prestige elsewhere in the world.¹⁰³

The threat of Soviet military aggression was frightening to American leaders in 1950. In August 1949, the Soviets successfully tested an atomic bomb, ending an era when only the United States had nuclear weapons.¹⁰⁴ That same year, Mao Zedong defeated the Nationalists in China, and the People’s Republic of China allied itself with the Soviet Union.¹⁰⁵ Global communism appeared ascendant to American leaders. In April 1950, the U.S. National Security Council issued a classified report, NSC 68, arguing that the Soviet Union was an aggressive power that could only be restrained through a strong, global U.S. military presence.¹⁰⁶ It provided the driving logic behind U.S. national security thinking for decades, and helped fuel American military expansion.¹⁰⁷ American leaders viewed developments in Korea through this lens, and missed what foreign archives have later shown: even though the North Koreans invaded in Soviet tanks, and would continue to receive Soviet support, the initiative for the invasion came from North Korean leaders. Stalin thought the timing wasn’t right and that the USSR was not ready for all-out confrontation with the United States. Mao preferred to consolidate his power at home. Both leaders ultimately gave their approval, however.¹⁰⁸

With North Korea as the principal aggressor in the summer of 1950, what looked to the Truman Administration to be a great Cold War battle instead had the character of a civil war, though each side had powerful patrons. It appeared that the ROK would not survive without American and U.N. support.¹⁰⁹ A preliminary intelligence report painted a dark picture, predicting that the DPRK intended to achieve “outright control over the Korean peninsula,” starting with the capture of Seoul within seven days.¹¹⁰ Because South Koreans had inferior equipment and lacked ammunition, Seoul was sure to fall, leading to the ultimate collapse of resistance.¹¹¹

1. The Fractured Process of Truman’s War Powers Unilateralism

News about Korea began to reach the U.S. State Department on the evening of Saturday, June 24.¹¹² Assistant Secretary of State for the Far East Dean Rusk, Secretary of the Army Frank Pace, Jr., and a small team worked through the night. They quickly decided that the United Nations should be involved.¹¹³ It “was just automatic,” John D. Hickerson, Assistant Secretary for U.N. Affairs, remembered, not something they debated, though they of course knew that the ultimate decision rested with the president.¹¹⁴

Secretary of State Dean Acheson called President Truman at his home in Independence, Missouri, and recommended that the United Nations Security Council meet at once to declare that an act of aggression had been committed against the ROK.¹¹⁵ Truman agreed. The decision to involve the Security Council was made on the basis of just one brief document: an initial telegram sent by John J. Muccio, U.S. Ambassador to the Republic of Korea, during the confusing early hours after the invasion began.¹¹⁶ He reported that the North Koreans were attacking by air, and had strafed airports in Kimpo and Seoul.¹¹⁷ Efforts to learn more about developing conditions in Korea were stymied because of communications difficulties. Rusk insisted on acting quickly, however, in part to affect public perception of the administration’s actions. It was of “utmost importance” that news of the decision to involve the Security Council be in the morning newspapers alongside news of the North Korean attack.¹¹⁸ By midnight in Washington, D.C., State Department officials began drafting a Security Council resolution.¹¹⁹

A later telegram for Acheson and Rusk from John Foster Dulles and John M. Allison, director of the Office of North Asian Affairs, urged the possibility of sending U.S. troops to Korea. Allowing South Korea to be “overrun . . . would start disastrous chain of events leading most probably to world war,” they warned.¹²⁰ The alarmed tone to administration communications may seem understandable because of the rush of events. Only five months earlier, however, the secretary of state gave a prominent speech putting South Korea outside the American “defensive perimeter” in Asia.¹²¹ This led Senator Robert Taft to argue that American action “itself invited attack.”¹²² He believed that the crisis in Korea was due both to Soviet aggression and “the bungling and inconsistent policies of the administration.”¹²³

Trygve Lie, the first U.N. secretary general, feared that the conflict threatened the United Nations itself. The U.N. took responsibility for Korea after the World War II defeat of its Japanese occupiers and sought elections that would create a unified Korean government. When the Soviets objected to U.N. plans, a U.N. supervised election went forward in the South only in May 1948, with Syngman Rhee elected president of the new Republic of Korea. The People’s Democratic Republic of Korea, allied with the Soviet Union, was also formed after elections in the North that same month. The U.N. only recognized the legitimacy of the Republic of Korea. This is why Lie thought of the North Korean invasion as an “aggression against a ‘creation’ of the United Nations.”¹²⁴ He believed that a United Nations response would safeguard not only the ROK, but the very legitimacy of the U.N.¹²⁵

At its inception following World War II, the United Nations was heralded as the world’s best hope for preserving peace. The enforcer of peace was the U.N. Security Council, which had the power to investigate disputes that endangered international peace and security, and to take steps, including calling for the use of military force, to respond to a breach of the peace.¹²⁶ When Truman and his advisors concluded that the appropriate course was to bring the crisis before the U.N Security Council, “[t]here [was] no evidence that they considered any other alternative,” political scientist Glenn Paige writes, “including that of doing nothing.”¹²⁷

Military options in Korea were at the top of Secretary of State Acheson’s agenda when he arrived at the State Department before noon on Sunday, June 25 and met with State and Defense Department officials.¹²⁸ Meanwhile, President Truman decided to return to Washington and asked Acheson to assemble key members of his administration for an evening meeting on Korea.¹²⁹ If the president considered Congress’s role in authorizing the use of force, he left no record of it. He did not contact congressional leaders that day, nor did he invite them to that evening’s dinner meeting. To the degree that Congress was consulted, it was only after plans had been laid.¹³⁰

2. Both Skepticism and Support in the U.N. Security Council and Congress

As the Truman Administration began to plan a response to the North Korean invasion, two legal questions loomed before it: Was military action in Korea lawful under international law, and did the president have the power under the U.S. Constitution to commit American forces to war? They addressed the first question through convening the U.N. Security Council. The second question was initially forgotten.

At 2:00 p.m. Eastern Daylight Time on Sunday, June 25, approximately sixteen hours after news of the invasion reached the State Department, the U.N. Security Council met for an extraordinary emergency session at temporary U.N. headquarters in Lake Success, New York.¹³¹ All members were present except the Soviet Union, which was boycotting due to the U.N.’s refusal to recognize the legitimacy of the People’s Republic of China.¹³² Disagreement surfaced before the meeting began. The United States submitted a draft resolution stating that the invasion was an “unprovoked act of aggression.”¹³³ Due to opposition, the language was modified to characterize it as a “breach of the peace.”¹³⁴ The draft resolution called upon North Korea to end hostilities and withdraw to the 38th parallel.¹³⁵ It ended with a broad and amorphous call to action, urging that the UNSC call upon U.N. member states “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.”¹³⁶ UNSC President Sir Benegal N. Rau of India and representatives of the United Kingdom, France, Egypt, and Norway objected to use of the words “act of aggression,” and were hesitant to blame North Korea. The pushback was in part because UNSC delegates were unable to reach their foreign offices for instructions on taking a position, but also because of their view that “this was a fight between Koreans” and therefore “in the nature of a civil war.”¹³⁷

U.S. Representative Ernest Gross emphasized that because the conflict was “an invasion upon a State which the United Nations itself . . . has brought into being,” North Korea had openly defied the United Nations itself.¹³⁸ But U.K. Representative Sir Terence Shone cautioned that the Security Council should not “go beyond the bounds of the evidence” before it.¹³⁹ The U.S. draft was then modified to seek recommendations from the U.N. Commission on Korea, and to call for a general cessation of hostilities, rather than only calling for North Korea to do so. It called North Korea’s action an “armed attack” instead of an “armed invasion.”¹⁴⁰ The operative section calling upon members to render assistance remained unchanged.¹⁴¹ The result of the meeting was strong, but not unqualified, support for the American position. With the Security Council resolution, the United Nations formally opposed the North Korean invasion. It did not call for military action, however. To interpret it as authorizing force (as Truman and Acheson later would) ignores the British warning that the UNSC should not “go beyond the bounds of the evidence.”¹⁴² The reluctance to blame North Korea, the caution about going beyond the evidence, and the circumstances of a later UNSC resolution authorizing force¹⁴³ show that the June 25 resolution was not intended to authorize full-scale war.

Members of Congress raised concerns about the administration’s actions within the first twenty-four hours after news of the invasion reached Washington. While the U.N. Security Council was meeting, two senators who served as liaisons between the assistant secretary for East Asian Affairs and the Senate met for two hours with Livingston T. Merchant, deputy assistant secretary for the Far East. Senators Elbert D. Thomas, Democrat from Utah, and H. Alexander Smith, Republican from New Jersey, were “extremely interested and disturbed” by the news from Korea, and they were “anxious to have copies” of the draft UNSC resolution.¹⁴⁴ It appears, however, that no members of Congress were able to review the resolution until after the UNSC passed it.¹⁴⁵ Thomas wanted clarity on “the exact legal status of Korea and the nature of our rights, responsibilities and obligations, legal and moral.”¹⁴⁶ The conflict was legally a civil war, not an act of aggression, he suggested, and he was also “inclined to think that there is widespread Communist sympathy in South Korea.”¹⁴⁷ There had, in fact, been opposition to the Rhee government in South Korea, which the U.S.-backed regime brutally suppressed.¹⁴⁸ Thomas also thought that the Senate Foreign Relations Committee should have been consulted before ammunition was provided or an evacuation plan put into effect. Senator Smith appeared to support the administration’s actions; however, both senators said, in effect: “Of course you are not thinking of putting U.S. troops in Korea.”¹⁴⁹ The historical record does not reflect Merchant’s reply.

That evening, Truman gathered key advisors, including military leaders, together for a solemn dinner and meeting at Blair House, the president’s temporary residence during White House repairs.¹⁵⁰ No members of Congress were present.¹⁵¹ In keeping with administration assumptions that the attack was a Soviet Cold War tactic, attention turned to whether Russia was ready for war, whether it wanted war, and the strength of Soviet forces. The group agreed on the need to “draw the line somewhere,” as General Omar N. Bradley, chairman of the Joint Chiefs of Staff, put it, and it favored reliance on air and naval power.¹⁵² Bradley questioned whether ground troops, especially in large numbers, would be wise. Secretary of Defense Louis A. Johnson opposed using ground troops, and some others agreed that ground troops were inadvisable. Truman wondered whether Soviet bases in the Far East could be knocked out. “[T]his might take some time,” replied General Hoyt S. Vandenberg, U.S. Air Force chief of staff, but “it could be done if we used A-Bombs.”¹⁵³

Truman approved multiple actions: sending arms, equipment, and a survey group to Korea, and a fleet to Japan. He also requested an assessment of where the Soviets might hit next, and he directed the Air Force to develop plans to eliminate Soviet Far East air bases. “[W]e are working entirely for the United Nations,” he emphasized, even though the U.N. itself had not called for military force.¹⁵⁴

In U.S. newspapers the next morning, the news was not yet alarming. “U.N. Calls for Cease Fire in Korea,” was the top New York Times headline.¹⁵⁵ This validated Rusk’s idea that early Security Council action could aid the way Korea news was reported.¹⁵⁶ At the State Department, however, the picture was grim. A telegram from Muccio reported “rapid deterioration and disintegration.”¹⁵⁷ He was “immediately starting evacuation of all females toward south.”¹⁵⁸ Acheson reached out to key members of Congress whose support would be helpful.¹⁵⁹ In spite of troubling news, he told them that the situation in Korea was under control. Senator Alexander Wiley asked whether U.S. policy remained sending aid only, and not U.S. forces. This matter was before the president, Acheson told him, though no American troops had yet been committed.¹⁶⁰

President Truman explained the crisis to the American people that morning, noting that the U.N. Security Council had acted speedily to order North Korea to withdraw, and that he had consulted with the secretaries of State and Defense, and the Joint Chiefs of Staff. Truman emphasized: “Those responsible for this act of aggression must realize how seriously the Government of the United States views such threats to the peace of the world. Willful disregard of the obligation to keep the peace cannot be tolerated by nations that support the United Nations Charter.”¹⁶¹

Although the administration quickly conceptualized the conflict as a battle between Cold War superpowers, some members of Congress wondered whether the conflict was a civil war. Democratic Senator Tom Connally, chair of the Senate Committee on Foreign Relations, declared that “some Senators speak as if they wanted to declare war tomorrow.”¹⁶² Members of Congress “want to know what’s in the wind before we go popping off.”¹⁶³ He urged the Senate to wait until the facts were in.¹⁶⁴ Others, however, reflected the Cold War framing of the Truman Doctrine—the idea that U.S. domestic security was at stake in conflicts in distant regions.¹⁶⁵ Republican Senator William F. Knowland of California thought that loss of the Republic of Korea would be “catastrophic,” for “[i]f this nation is allowed to succumb to an overt invasion of this kind, there is little chance of stopping communism anywhere on the continent of Asia.”¹⁶⁶ Ranking member of the Senate Armed Services Committee, Georgia Senator Richard Russell, suggested that authority was already available under existing law to send South Korea whatever it needed.¹⁶⁷ Others urged caution, however. With facts on the ground not yet clear, and little to go on other than newspapers and the president’s statement, senators loosely speculated about core issues that would affect their future role in powerful ways: whether what was happening in Korea was a “war” or something else; whether joining the U.N. committed the United States to use force when the Security Council called for it; and whether historical precedents already established a practice enabling presidents to order military action on their own.¹⁶⁸ Members of Congress knew, of course, that declaring war was Congress’s job. For many it was not yet clear, however, whether a war declaration was constitutionally required.¹⁶⁹

As the mood in Washington darkened, President Truman again gathered key advisors together at Blair House on the evening of June 26.¹⁷⁰ An urgent focus was the need to protect Americans evacuating from Seoul, including using the military to protect airports and departing ships.¹⁷¹ This kind of action was within the president’s traditional commander-in-chief power.¹⁷² The meeting quickly went beyond these defensive measures, however. Acheson argued that it was time for the Navy and Air Force to have an “all-out order” that would “waive all restrictions on their operations in Korea and to offer the fullest possible support to the South Korean forces.”¹⁷³ This would give the South Koreans, pummeled by tanks and columns of DPRK soldiers, a fighting chance. The president agreed to this broader U.S. military action.¹⁷⁴ Secretary Pace and General Vandenberg asked whether U.S. action, including flights, could cross above the 38th parallel.¹⁷⁵ No, the president responded. “Not yet.”¹⁷⁶

Only after Truman agreed to U.S. military action did Acheson mention the idea of basing it on the U.N. Security Council resolution, “if it was considered useful.”¹⁷⁷ But the Security Council, acting on the basis of very preliminary reports, had not authorized the use of force, and members had pressed the importance of not acting beyond the evidence.¹⁷⁸ Acheson also proposed that Truman might want to talk to Senator Connally and other members of the House and Senate to “tell them what had been decided.”¹⁷⁹ The president’s decision to go to war required more than consultation, however. An “all-out order” to commit the United States to join the ROK in battle against North Korean forces was an order to go to war. In keeping with the understanding of constitutional powers at the time, it required an affirmative vote in both houses of Congress.¹⁸⁰

The president raised the question of whether the National Guard should be mobilized.¹⁸¹ That would require asking Congress for funding. He proposed that the Joint Chiefs should take this up.¹⁸² “I don’t want to go to war,” Truman added, even as his actions set war in motion.¹⁸³

That night, following the meeting, Truman gave General MacArthur the go ahead to use the Navy and Air Force to “offer fullest possible support to South Korean forces.”¹⁸⁴ This meant the use of U.S. military force: “All restrictions which have previously prevented the full utilization of the U.S. Far East Air Forces to support and assist the defense of the South Korean territory are lifted for operations below the 38th Parallel.”¹⁸⁵ Military targets were “cleared for attack.”¹⁸⁶ The goal was to eliminate the North Korean threat to the South.¹⁸⁷ The justification was to support ROK forces in keeping with the Security Council resolution, even though the Security Council would not authorize the use of armed force until it passed a second resolution the following day.¹⁸⁸

When General MacArthur received his orders, he sought to publicize them in Korea, believing that if South Koreans knew that the United States was backing them with military force, it would boost morale.¹⁸⁹ Under Secretary of State Webb objected that there should be no announcement until after the president notified members of Congress.¹⁹⁰ They reached a compromise, however.¹⁹¹ The news was broadcast only in the Korean language.¹⁹² In this way, Koreans learned of the president’s decision to intervene militarily before Congress or the American people.¹⁹³

Truman’s decision to use force in Korea was thought at the time to be momentous.¹⁹⁴ Under his authority, the United States had dropped atomic bombs on two Japanese cities in World War II. Despite this, Truman believed that Korea was the “toughest decision” of his presidency.¹⁹⁵ Yet he went forward without deep consultation with Congress or even with his full Cabinet. Truman’s next task, as he saw it, was to inform members of Congress and the American people about what was in store.¹⁹⁶ He met with a group of congressional leaders on Tuesday morning, June 27, emphasizing that, as his close aide George Elsey later recorded, “[i]f we were to let Asia go, the Near East would collapse and no telling what would happen in Europe.”¹⁹⁷ His assessment rested on his erroneous assumption of Soviet principal initiative behind the Korean conflict.¹⁹⁸ The president explained that he ordered U.S. military action in Korea for “as long as the Koreans put up a fight and gave us something we could support.”¹⁹⁹

Senator Wiley asked whether the action was intended to carry out the U.N. Security Council resolution, and Truman said yes.²⁰⁰ Senator Alexander Smith pressed the question again, asking whether it “was actually pursuant” to the resolution.²⁰¹ Truman assured him that everything the United States was doing was “in support of the Security Council resolution.”²⁰² Another Security Council meeting was scheduled for that afternoon.²⁰³ If the Russians were present and vetoed a second resolution, Acheson explained that “we would go right ahead—without interruption—and supply assistance to Korea under the terms of the Security Council resolution of Sunday.”²⁰⁴ In other words, for Acheson and the administration, the tentative and limited action the UNSC itself thought it had taken on June 25 could be read to extend to full military intervention. The language of that resolution called upon member states to “render every assistance” in executing the call for cessation of hostilities and North Korean withdrawal,²⁰⁵ but members had urged the need for caution and not acting ahead of the evidence before them.²⁰⁶ The context of both meetings, and the arguments over the June 25 resolution, contradict the argument that the resolution authorized substantial military force.

After this meeting with Congress members, Truman released a public statement emphasizing that North Korea had failed to heed the June 25 U.N. Security Council resolution, and that the U.N. members were pledged “to render every assistance” to see that the resolution was executed.²⁰⁷ “In these circumstances I have ordered United States air and sea forces to give the Korean Government troops cover and support.”²⁰⁸ He cast North Korean actions in a broad Cold War lens, arguing that “communism has passed beyond the use of subversion to conquer independent nations and will now use armed invasion and war.”²⁰⁹ Missing from this conceptualization was the fact that Korea had been divided by the superpowers, and Koreans on both sides of the border yearned for reunification.²¹⁰ The local dimensions of the conflict were ignored.

When Truman’s statement was read aloud in both houses of Congress, members of the House of Representatives stood and cheered. The House later voted by an overwhelming majority (315-4) to extend the military draft and allow Truman to call up members of the National Guard and the reserves.²¹¹ With American troops on their way into battle, the political context had shifted dramatically, helping to turn skepticism into patriotic support. Nevertheless, some senators were skeptical. When Senator Lucas read Truman’s statement, Senator James P. Kem, Republican from Missouri, interrupted. Had the president “arrogated to himself the authority of declaring war[?]” he asked.²¹² Lucas replied that Senator Kem could interpret the statement however he wanted, but presidents had previously deployed forces without authorization from Congress 126 times, essentially making a gloss-of-history argument that past presidential acts revealed the scope and nature of presidential power.²¹³ The Korean War would solidify this argument, and it would be an important basis for unilateral presidential war power in later years.²¹⁴ This is in spite of the fact that the 126 precedents paled in comparison with U.S. actions in Korea—some of the previous acts involved as little as sending a small contingent to guard a U.S. embassy.²¹⁵ This shows the way historical gloss has been expanded uncritically. The leap from minor action to large-scale war in Korea would then be normalized as precedent.

3. The U.N. Security Council Authorizes Force After the Fact

All eyes were on the U.N. Security Council when it convened at 3:00 p.m. on June 27. The atmosphere reflected the historic nature of the meeting: the first time the UNSC would consider authorizing the use of force.²¹⁶ 1,200 observers packed into the assembly room, and another 5,000 were turned away due to lack of space.²¹⁷ The U.N. Commission on Korea had reported on June 26 of the “rapid deterioration” in South Korea, and recommended that the Council either invite the North and South Koreans to negotiate peace with a neutral mediator, or ask U.N. members to mediate it.²¹⁸ The Yugoslavian delegate, Ales Bebler, agreed with this approach. “We must not and we cannot, after only two days of fighting, abandon all hope that the two parties involved will at last understand the interests of their own people and of international peace,” he argued.²¹⁹ It was too early to know whether the DPRK would refuse to negotiate.²²⁰

Warren R. Austin, U.S. Ambassador to the U.N., insisted that the United Nations was “confronted today with the gravest crisis in its existence.”²²¹ To meet it, Austin offered an American draft resolution emphasizing that North Korea had defied the first UNSC resolution, had not ceased hostilities and withdrawn, and that the Republic of Korea had appealed to the U.N. for immediate assistance. The resolution recommended that U.N. members “furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security.”²²² This call for action was the “logical consequence” of the June 25 resolution, and its defiance by North Korea, Austin argued.²²³

The President of the Council, Sir Benegal N. Rau of India, remarked that the issues before the Council that evening were “more momentous” than the night before.²²⁴ The Council had never approved an enforcement action before, and U.S. officials said that the resolution “would authorize the United Nations or any other member of the United Nations to send troops if it wished to do so.”²²⁵ Rau and other delegates were surprised that the Americans wanted to “proceed with a resolution of such vigor” especially since the voting was rushed.²²⁶ Rau did not receive the proposed resolution until 11:30 that morning, just thirty minutes before Truman publicly announced that he was committing U.S. forces to Korea. Some delegates received it when the meeting began.²²⁷

In spite of its urgency, this crucial meeting was then suspended for five hours to give Rau and the Egyptian delegate time to receive voting instructions from their countries.²²⁸ Time differences and communication difficulties frustrated this effort. Truman’s decision to send U.S. military assets to Formosa and Indochina had also complicated the decision for Indian leaders. They wished to oppose aggression, but “[t]here seemed to be merging of problem resistance to aggression with that of extension of assistance to certain forces which millions of Asians including many Indians considered to be imperialistic, colonial or reactionary,” Loy W. Henderson, U.S. Ambassador to India, explained in a telegram.²²⁹ Very late that evening, Austin pressed for a vote, rather than waiting for the Indian and Egyptian governments to weigh in.²³⁰ France, the United Kingdom, China (Formosa), Cuba, Norway, and Ecuador strongly supported the American draft resolution. The Council passed it with seven votes in favor, one against (Yugoslavia), Egypt and India not voting, and the USSR absent.²³¹ With this vote, about twenty-four hours after President Truman ordered the use of military force in Korea, the U.N. Security Council authorized it. Secretary General Lie would later say that the timing did not trouble him, and that Truman’s action “was fully within the spirit” of the June 25 resolution.²³² The idea that the use of force in Korea was within the spirit of the first UNSC resolution is belied, however, by the reluctance of India and Egypt to sign on to a “momentous” change without consultation and by the sense of the meeting that it was a historic occasion. It also raises the question of whether Austin’s push to rush ahead, rather than wait even for the Security Council president to have a chance to potentially sign on, was driven in part by a need to keep the Council aligned with actions already underway.²³³

By this time, American planes were already bombing and strafing targets in Korea. MacArthur established a “small advanced echelon” in the country. No American casualties had yet been reported. Seoul was quiet, as the city emptied.²³⁴

4. “There is no legal authority for what he has done”

Although authorized after the fact by the United Nations, was Truman’s decision to use force in Korea constitutional?²³⁵ On Wednesday, June 28, Senator Robert Taft took up this question on the Senate floor.²³⁶ Truman had “no legal authority for what he has done,” the senator argued.²³⁷ He had “brought about a de facto war . . . without consulting Congress and without congressional approval.”²³⁸ The president’s action had profound implications. If Truman could unilaterally intervene in Korea, “he can go to war in Malaya or Indonesia or Iran or South America.”²³⁹ Past presidents had used force to protect Americans and American interests, Taft noted, “but I do not think it has been claimed that, apart from the United Nations Charter or other treaty obligations, the President has any right to precipitate any open warfare.”²⁴⁰ If the Korean intervention went forward “without protest, at least from this body, we would have finally terminated for all time the right of Congress to declare war, which is granted to Congress alone by the Constitution of the United States.”²⁴¹

Taft would have supported a joint resolution in support of intervention in Korea if one had been introduced. His dispute was not about the use of force but the question of presidential power. The fact that Taft would have supported military intervention might make his objection appear merely academic. History would bear out the senator’s concern, however, as Korea would become a leading precedent for American presidents’ unilateral power to go to war.²⁴²

As American forces went into battle, most members of Congress closed ranks with the president. The acquiescence to Truman’s action is interpreted by some scholars as an example of the production of constitutional authority, with both branches of government agreeing that Truman had lawful power to act.²⁴³ But political scientists have shown that the public and lawmakers tend to rally behind the president at the beginning of war, so that Truman’s actions stacked the deck in his favor. There are also many reasons that members of Congress have a tendency to soften their public differences once troops are under fire: a desire to focus on supporting the troops, a wish not to aid the enemy or undermine the military effort, the political calculus that voters might think such action was unpatriotic, and more.²⁴⁴ In the context of the Korean War, any patina of solidarity was deeply fractured when it came to the underlying question of whether the president’s actions were lawful. Truman’s aides had to grapple with this problem.

Behind the scenes, Taft’s criticism was troubling enough to require more thought. Truman Administration staff went to work, producing multiple drafts of a memo on the legal basis for the president’s action. One version had “Anti-Taft” written across the top.²⁴⁵ This signaled both that some believed Taft’s criticism required a response and that political contestation continued to inform Truman’s reluctance to seek a congressional authorization that would have solidified the legal authority for his action.

When reporters questioned Truman on Korea at a Thursday, June 29, press conference, he declined to comment on whether ground troops would go to Korea and whether the atomic bomb would be used.²⁴⁶ “Mr. President,” a reporter asked, “everybody is asking in this country, are we or are we not at war?”²⁴⁷ Truman answered: “We are not at war.”²⁴⁸ Could they quote him that the country was “not at war . . . ?” someone asked.²⁴⁹ “Yes,” he answered.²⁵⁰ “We are not at war.”²⁵¹ Instead it was a U.N. response to a “bandit raid.”²⁵² A reporter pressed: “[W]ould it be correct . . . to call this a police action . . . ?” Truman agreed.²⁵³ He would later adhere to this label, refusing to call the conflict a “war.”²⁵⁴ The next day, June 30, Truman announced that he had authorized Air Force attacks on North Korea and a naval blockade of the entire coast, and that he had approved General MacArthur’s use of ground troops.²⁵⁵

During June 25–30, the crucial days at the start of the war, the president did not seriously discuss whether congressional authorization was needed, according to Truman aide George Elsey, who closely recorded the events. Elsey thought that “[t]he real time for a resolution would have been on June 27, but apparently nobody thought of it at that time.”²⁵⁶ Instead, “[t]he President and his staff, and his other advisers, were too busy thinking of military action and United Nations action to try to cover up their tracks with Congressional resolutions. The President’s motivation was to stop the aggression, not to prepare for future political skirmishes.”²⁵⁷ Elsey’s recollections capture the attitude within the administration regarding Congress’s role. They treated Congress, the president’s constitutional partner charged with authority to declare war, as an adversary. The function of congressional action was to “cover up their tracks”—to legitimate the president’s course of action—not to debate and decide whether to commit U.S. forces to war.

5. The “Police Action”

What did the nonwar “police action” look like? In Yeongwol, southeast of Seoul, refugees with large bundles on their backs crowded the road as they fled from the mountainous area of Pyeongchang.²⁵⁸ Fifteen-year-old Shin Yeongyeo saw DPRK heavy tanks passing by, followed by military officers on horseback, and then troops on foot.²⁵⁹ Bullets flew past and she could have easily been killed.²⁶⁰ She became fatalistic. Some were destined to live, and others to die.²⁶¹

The day after Truman told the press that the Korean conflict was not a war, an unexpected phone call awakened Lieutenant Colonel Charles B. Smith, a thirty-four-year-old infantry officer, who was sleeping in his quarters near Kumamoto, Kyushu, Japan.²⁶² General John H. Church ordered Smith and his battalion to South Korea.²⁶³ They would be the first American ground troops deployed in the Korean War.²⁶⁴ Their orders were to stop the North Koreans as far north of Busan, South Korea, as possible.²⁶⁵ “All we need is some men up there who won’t run when they see tanks,” explained the general.²⁶⁶ But Smith’s troops were young and inexperienced and were ordered into service without antitank mines that would have been effective at stopping tanks.²⁶⁷ The U.S. military had none in Korea at the time.²⁶⁸

On July 5, Smith and his troops were dug in at Osan, about twenty-five miles south of Seoul.²⁶⁹ They saw a long line of armored tanks approach in the distance.²⁷⁰ When they were in range, U.S. artillery fired but the shells simply bounced off.²⁷¹ The initial skirmish led to the first U.S. combat death of the war.²⁷² After the tanks, a seemingly endless line of North Korean troops advanced.²⁷³ Air support was ruled out because of bad weather.²⁷⁴ The Americans were outnumbered, and General MacArthur would later call the action an “arrogant display of strength” that might fool the enemy.²⁷⁵ Forced to withdraw, they had to leave behind their dead and seriously wounded, and one medic who volunteered to stay behind.²⁷⁶ From Smith’s infantry battalion, 150 men were killed, wounded, or missing.²⁷⁷

As the casualty numbers climbed, soldiers and their families reached out to Robert Taft. “Why doesn’t someone tell the people what it’s really like over there[?]” a soldier asked.²⁷⁸ “Do you have a son in Korea, outnumbered 10 to 1?” asked a father.²⁷⁹ “No one knows what [it’s] all about and how hard it is unless you have one of your own among the missing or among the dead,” wrote the mother of a soldier.²⁸⁰ In the end, 103,284 American service members were injured, and 54,246 lost their lives in the war.²⁸¹ 10,218 were missing and/or were prisoners of war. ²⁸² The number of civilian deaths was estimated to be over 1 million.²⁸³ Death is not the only human casualty of war, however, for the impact of war lives on in the bodies and minds of those who are injured.²⁸⁴

6. The Afterthought of Legal Authority

The Korean War was well underway before the Truman Administration fully developed a theory of its legality. The State Department and the White House turned more attention to the legal basis for the president’s action in early July 1950, but the administration again failed to act. Some at State supported seeking a congressional resolution. Differences of opinion about how to proceed led the president to convene another Blair House meeting on the afternoon of July 3.²⁸⁵ Members of Congress wanted to weigh in, Acheson reported, and they were frustrated that the president had only informed selected leaders.²⁸⁶ Both the State Department and the Department of Defense had prepared draft resolutions. Both drafts condemned North Korea and stated that it was “the sense of the Congress that the United States continue to take all appropriate action.”²⁸⁷ They differed significantly in scope. The State Department draft supported action “with reference to the Korean situation to restore and maintain international peace and security,” in keeping with the U.N. Charter and the UNSC resolutions.²⁸⁸ The Department of Defense resolution was breathtakingly broad, supporting action to “restore and maintain international peace and security in the Pacific area.”²⁸⁹ This would have authorized the use of force in Formosa, the Philippines, and Indochina.²⁹⁰

Acheson explained that in the State Department draft resolution they attempted to “avoid anything which would give rise to debate.” ²⁹¹ It would “commend the action by the United States rather than the action by the President.”²⁹² Acheson urged Truman to go before Congress, for members of Congress were restless over his unilateralism.²⁹³ In contrast, General Omar Bradley, chairman of the Joint Chiefs of Staff, preferred to avoid a long congressional debate.²⁹⁴

Truman asked Senator Lucas, who seemed to have been invited for the purpose of serving as the voice of Congress, what he thought about the resolution.²⁹⁵ Lucas questioned its advisability. If Truman addressed Congress, it “might sound as if the President were asking for a declaration of []war.”²⁹⁶ “This was exactly the point,” Truman replied, adding that his actions were based on his powers as commander in chief of U.S. forces in the Far East.²⁹⁷ He said that it was important “to be very careful” so that he “would not appear to be trying to get around Congress and use extra-Constitutional powers.”²⁹⁸ Previous presidents, including Presidents Woodrow Wilson and Franklin D. Roosevelt, had asked Congress to pass war resolutions,²⁹⁹ but Truman thought that “it was up to Congress,” not the president, to call for one.³⁰⁰ Rusk emphasized that support from Congress would help with foreign opinion, since critical remarks by Taft and Wherry had been reported abroad.³⁰¹ As the meeting came to a close, however, it was clear that the president had found the support he was looking for against the need to seek congressional backing.³⁰² Truman decided to postpone further consideration.³⁰³ Only Secretary Snyder emphasized that they were “going along a new road and making a historical record.” ³⁰⁴ The historic Korean War shift in the war powers continued, more through indecision than action.

By early July, a new reason to avoid a vote was that “it was undoubtedly too late to get a resolution through by anything like a unanimous vote,” Elsey told Senator Alexander Smith.³⁰⁵ Congressional dissent had not stopped a vote in favor of the World War I war declaration, and even the declaration for World War II had one dissenter.³⁰⁶ Truman appears to have viewed congressional authorization as a display of political affirmation, not a grant of constitutional power.

This is why the contemporaneous statement of legal authority for presidential power in Korea was not a war declaration, a congressional resolution, or even a formal legal opinion by the attorney general. It was a 1950 State Department memo stressing the president’s commander-in-chief power to send U.S. armed forces abroad.³⁰⁷ Oddly, when published in the Department of State Bulletin, five paragraphs near the beginning were left out.³⁰⁸ The missing paragraphs traced events from the frantic days in late June, showing that the president first ordered the use of force, and subsequently the U.N. Security Council authorized it.³⁰⁹ Without the timeline, the fact that Truman acted without UNSC authorization to use force is obscured. Contemporary legal scholars and the OLC cite to the excerpted version of the memo without noting the excision.³¹⁰

Although claiming that Truman sought to further the objectives of both Security Council resolutions, the memo argued that the actual source of authority was the president’s own constitutional power. It listed eighty-five instances when American forces were deployed largely without congressional authorization.³¹¹ They were identified as “peacetime” examples, however, and were minuscule compared to the Korean War. For example, U.S. troops were sent to Puerto Rico in 1824 “[t]o atone for insult to the flag and procure apology,” and to Haiti in 1888 to free a captured American merchant vessel.³¹² More significant, but still limited, actions included President Woodrow Wilson’s order sending 4,800 soldiers to Mexico for eleven months to pursue Pancho Villa in 1916,³¹³ and the use of 1,300 U.S. Marines for eight years to suppress a revolution and establish a military government in the Dominican Republic that same year.³¹⁴ Nearly two million American troops were deployed in the three years of the Korean War, and there were at least 27,607 fatal casualties.³¹⁵ Notably left off the list was the most pertinent example: the Philippine-American War in 1899–1902, in which the United States fought a bloody undeclared war against the Philippine independence movement after the Spanish-American War.³¹⁶

Even though these limited deployments did not compare with the massive U.S. use of force in Korea, the excerpted memo, and its list of “peacetime” deployments, became a central authority when future presidents followed President Truman and bypassed Congress to take the country to war.³¹⁷

As the devastation in Korea mounted, Truman continued to call the conflict a “police action” or the “Korean Situation,” not a “war.”³¹⁸ Truman Administration file folders about disabled soldiers were labeled “Korean Emergency.”³¹⁹ Meanwhile, the deadly character of the conflict was undeniable.³²⁰ The United States used napalm widely for the first time in the war.³²¹ It sometimes missed the target and incinerated U.S. and U.N. troops.³²² A disastrous winter invasion of North Korea led to many deaths and countless amputations of frozen limbs.³²³ The profound psychological impact of the war is captured in a well-known photograph of a soldier caressing a grieving soldier who had seen his friend killed in action.³²⁴

In spite of the effort and the carnage, the war entered a stalemate near the place it had begun: the 38th parallel. Over time, American deaths did not reinforce a call to arms. Instead, public disenchantment ultimately weakened support for Truman’s actions. Still, the war dragged on.³²⁵

B. What Happened in the “Police Action”: Civilian Carnage

A traditional restraint on the use of force is the risk to a belligerent’s own domestic population. When war is distant, as it was for Americans in the Korean War, that “cost” of war is not felt at home.³²⁶ Instead, Americans focus on the impact on U.S. combatants.³²⁷ When assessing the character of U.S. war powers, the impact on all human life in the warzone should matter. Yet the impact of the war on Korean civilians is not considered when the war serves as legal precedent.³²⁸

This Section takes up the erasure of the humanitarian impact of the Korean War from American memory, at the same time that the war is embedded as historical gloss in U.S. war powers precedent. When President Truman refused to acknowledge the conflict was a “war,” his dismissal of the human impact informed his justification for ignoring Congress’s role.³²⁹ This erasure lives on in gloss-of-history analysis; forgetting the nature of the war helped solidify its role as precedent. The United States was implicated in the war’s brutal character, however. Although the killing of civilians in the U.S. war in Vietnam is well-known,³³⁰ the massacre of Koreans by U.S. soldiers is largely forgotten by Americans.³³¹ The U.S. military argued that such atrocities were “inherent to war,” however.³³² This makes it imperative to acknowledge that brutality toward civilians is a feature of the power presidents can unilaterally unleash.

Although the Truman Administration defended its intervention in Korea as an effort to protect freedom and democracy, the Korean government had a history of using violence as a political tool. For example, an uprising on Cheju Island led to the death of around 28,000 civilians.³³³ The United States is no stranger to civilian casualties either; civilian death is often accepted as an unavoidable consequence—“collateral damage”—of lawful military action.³³⁴

The killing of civilians is at times intentional, however.³³⁵ Many Americans are aware of the My Lai massacre during the war in Vietnam, but not of the Korean War massacre at No Gun Ri, which happened not long after the North Korean invasion.³³⁶ American military leaders hoped to block their advance down the peninsula. Out of concern that North Korean soldiers were thought to be dressing as civilians, the U.S. Army commander sought to ensure that “no movement of refugees [would] be permitted through the battle lines of our forward areas.”³³⁷ He requested that leaflets be dropped to assist this effort.³³⁸ Ambassador Muccio wrote to Dean Rusk on July 26, 1950, that the situation had become serious and taken on a “critical military nature.” Refugees north of U.N military lines would receive warning shots, and “if they then persist in advancing they will be shot.”³³⁹

Meanwhile, Korean civilians were fleeing, some prodded to leave their homes by U.S. military personnel. On July 26, 1950, hundreds of refugees, many carrying small children, were ordered to leave their villages and were walking with their belongings to the vicinity of the village of No Gun Ri.³⁴⁰ U.S. soldiers told them to gather on a railroad track.³⁴¹ But then, survivors remembered, they were strafed by U.S. planes.³⁴² It was terrifying. One survivor, Chun Choon-ja, stated that “[i]t looked like heaven crashed on us.”³⁴³ Amid the mayhem, she found her mother among the dead.³⁴⁴ The attack was shocking even to some U.S. soldiers on the ground, but a Pulitzer-Prize-winning news report later found that it “fit the policy the Air Force was pursuing at the Army’s request, to ‘strafe all civilian refugee parties that are noted approaching our positions.’ ”³⁴⁵

Soldiers forced surviving civilians to gather under a railroad bridge. Then American machine gunners fired at them.³⁴⁶ Children hid behind dead bodies in an effort to survive. ³⁴⁷ “We just annihilated them,” Norman Tinkler remembered.³⁴⁸ It was “wholesale slaughter,” another former GI later recalled.³⁴⁹ By July 29th, after three nights under fire, at least 126 villagers were killed and 45 were wounded.³⁵⁰

Investigative reporters exposed the No Gun Ri massacre in 1999, leading to U.S. and South Korean government inquiries. Ultimately, a U.S. Army investigation acknowledged the massacre, but concluded that “the deaths and injuries of civilians, wherever they occurred, were an unfortunate tragedy inherent to war and not a deliberate killing.”³⁵¹ Although President Bill Clinton expressed American regret for the deaths, the United States has never acknowledged responsibility nor apologized for the massacre.³⁵²

Conway-Lanz argues that No Gun Ri was not an isolated event, but “part of a larger pattern” in Korea,³⁵³ an assessment confirmed by other scholars.³⁵⁴ If it is the case that atrocities are “inherent to war,” as the Pentagon report suggested, then it is important for the No Gun Ri massacre to be remembered. This is what war powers accomplish. This is what Truman unilaterally unleashed.

III. The Korean War and the Gloss of History

The Korean War has never formally ended, but the era of large-scale military conflict ended with an armistice in 1953.³⁵⁵ U.S. and Korean troops still guard a militarized border dividing the North and South.³⁵⁶ For civilians in the warzone, the consequences of war persisted. The massive number of casualties had become, in essence, part of the terrain. Park Doosung, sixteen years old at the time, recalled that it was not possible to avoid stepping on them. “There were U.S. soldiers, North Korean People’s Army’s soldiers . . . . Every village’s forest was piled up with bodies.”³⁵⁷ The war is largely forgotten by Americans but has a powerful afterlife in American law. It now serves as historical gloss on presidential power—a legal tool to justify expanding presidential war power.³⁵⁸

The Korean War made its first important appearance in the Supreme Court, in the 1952 Steel Seizure Case.³⁵⁹ Ambiguity about whether the conflict was a “war” led to a divergent set of descriptions, and skepticism informed Justice Jackson’s legal analysis.³⁶⁰ The ambiguity persisted in later years in Office of Legal Counsel opinions.³⁶¹ The Korean War’s role as precedent—a gloss on presidential power—nevertheless became a feature of war powers authority. This happened in spite of the fact that presidents did not embrace Truman’s example and did not initiate conflicts of the length and size of the Korean War without engaging Congress.³⁶² It happened largely in the background, as executive branch lawyers relied on the idea that Korea was a “police action” to narrowly define the kind of wars requiring congressional authorization. They also followed the State Department’s lead in 1950 of arguing that “national interests” can justify the unilateral use of force.³⁶³ This happened in spite of congressional efforts to restrain presidential power by enacting the War Powers Resolution after the war in Vietnam.³⁶⁴ The War Powers Resolution was Congress’s most important effort to reign in presidential power, but it was undermined by the way legal precedent relying on Korea interpreted most conflicts as the kind that allowed for action based on presidential power alone. Although the unilateral wars were smaller, at least for Americans at home, this was nevertheless consequential as the global reach of U.S. military power extended after the Cold War, and small war enabled endless war.³⁶⁵

This Part turns first, in Section III.A, to the Supreme Court’s understanding of the nature of the war, detailing the skepticism of Supreme Court justices about the legal status of the Korean War during the conflict itself.³⁶⁶ Section III.B shows the way that this skepticism fell away in later years. The Korean War became a gloss of history in Office of Legal Counsel opinions on presidential war power and was relied on to justify the use of force by subsequent presidents without congressional authorization.³⁶⁷ The contemporaneous critique of Truman’s actions was forgotten, and in its place his mere action became evidence of what presidential power encompassed.

A. The Supreme Court Interprets the Korean War

The U.S. Supreme Court considered the nature of the Korean War during the conflict itself in the Steel Seizure Case in 1952.³⁶⁸ Though most often cited for the influential tripartite analysis of presidential power in Justice Robert Jackson’s concurrence,³⁶⁹ the case also demonstrated the Court’s contemporaneous assessment of the conflict. In the Steel Seizure Case, the Court struck down an executive order issued by President Truman seizing private steel mills in order to stop a strike in the steel industry. Truman argued that a steel strike would undermine production of essential war materiel at a time when U.S. soldiers were in combat. The president relied on his Article II powers, including his power as commander in chief.³⁷⁰

The Steel Seizure Case was decided on June 2, 1952,³⁷¹ after the Korean War had taken a perilous turn. American bombing leveled North Korean cities and U.S. planes used napalm to incinerate the enemy.³⁷² General Douglas MacArthur ordered an invasion of North Korea in the fall of 1950, which ultimately led China to enter the war. U.S. and U.N. troops were outnumbered and undersupplied, resulting in many casualties in the perilous winter Battle of Chosin in North Korea.³⁷³ In other words, the “police action” was a devastating war.

In spite of circumstances in Korea, the Court largely hewed to Truman’s euphemisms. His executive order calling for seizure of steel mills called the war an “emergency.”³⁷⁴ In six separate opinions, justices never called the conflict the “Korean War,” and most often lined up with Truman, referring to the war as an “emergency.”³⁷⁵ Justice Jackson, in contrast, took up the ambiguities surrounding the undeclared nature of the conflict and its implications. He called it a “foreign venture,” “the Korean enterprise,” and not a de jure war, but perhaps a de facto war.³⁷⁶ Whatever the name for it, Jackson argued that a president cannot have the power to unilaterally define an era as a wartime, thereby triggering his own military power. In Korea, by acting without congressional authorization, Truman had “invested himself with ‘war powers.’ ”³⁷⁷ Jackson warned:

[N]o doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.³⁷⁸

For Jackson, “[n]o penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role.”³⁷⁹ He thought that the Nazi reliance on emergency power during World War II showed that such powers could only coexist with free government if “their control is lodged elsewhere than in the Executive who exercises them.”³⁸⁰

The Steel Seizure Case is remembered for its limitation on the domestic power of a president, but Jackson’s opinion also directly rejects presidential war powers unilateralism.³⁸¹ His most important critique was that the president had himself declared an era a wartime, and then argued that this self-declared wartime was the occasion for the expansion of his own powers. Jackson’s point would be lost as the case turned into precedent. In later years, the Court would call the conflict a “war,” and the Korean War was most often in the background in cases applying the Steel Seizure Case precedent.³⁸² The war would be consequential, however, in the work of executive branch lawyers.

B. The Office of Legal Counsel Relies on the Korean War

In 1950, President Truman attempted to duck the question of whether the Korea conflict was a “war,” embracing a reporter’s suggestion that it was instead a “police action.”³⁸³ This descriptive dilemma mattered to Truman because if the conflict was a war, then his failure to directly engage Congress was more consequential.³⁸⁴ Whether out of political calculation or pure stubbornness, Truman’s insistence on the conflict’s nonwar status had downstream impacts. In later years, his actions informed the analysis of executive branch lawyers on two important questions: first, when exactly a conflict counted as a “war” that required congressional authorization, and second, if not a “war,” whether U.S. presidents could use force unilaterally because the nation had a sufficient “interest” at stake.³⁸⁵

The opinions illustrate the way that, at least within the executive branch, past actions become building blocks—evidence that power exists—without reanalysis of whether new evidence undermines previous assumptions about the nature of a conflict and whether past presidential action was warranted. This reveals a weakness in gloss-of-history analysis, for understandings of history are not locked in at one time but deepen and evolve as scholars uncover new evidence.

This Section addresses two features of reliance on the Korean War as historical gloss. First, it shrank the concept of “war” so that much subsequent conflict fell outside the boundaries of war. This allowed presidents to argue that the conflicts did not trigger the need for Congress to act. Second, it was an important precedent for the nebulous idea of “American interests” that justify unilateral presidential military action.

1. The Shrinking Concept of “War”

After the Korean War, some Cold War U.S. military deployments resulted in small conflicts that could more easily fit on the “bandit raid” list of executive actions.³⁸⁶ This enabled the war’s “gloss” on presidential power to place conflicts of increasing scope outside Congress’s purview as the concept of “war” shrank in a series of OLC and State Department opinions.³⁸⁷ The changing U.S. legal meaning of “war” was accompanied by war’s persistent lethality for civilians.³⁸⁸

In 1962, President John F. Kennedy ordered a blockade of Cuba during the Cuban Missile Crisis, raising the question of whether congressional authorization was required.³⁸⁹ A blockade is a mechanism of war, and the United States was not then at war with Cuba.³⁹⁰ The Office of Legal Counsel nevertheless concluded that the president had power to establish a blockade without a war declaration in part because the United Nations had express power to order one.³⁹¹ The Korean War served as the illustrative example, for “the United Nations authorized a blockade in the Korean ‘police action’ and claimed all of the usual legal incidents of a blockade during a state of war. War, of course, was not declared by the United Nations or by nations participating.”³⁹² Other presidents had used blockades without declarations of war in the Civil War and the Spanish-American War, but the Supreme Court recognized that a state of war existed in the Civil War, and the Spanish-American War was subsequently declared.³⁹³ This made Korea a tidier authority for the Cuba blockade because Korea was not a declared war.

The importance of the Korean War as precedent continued to inform understandings of the war power when, in 1966, the State Department relied on the U.S. intervention in Korea in a memorandum on the legality of U.S. military action in Vietnam.³⁹⁴ Although Congress had passed the Tonkin Gulf Resolution authorizing U.S. intervention in Vietnam in 1964, members of Congress and the American public questioned President Lyndon Johnson’s authority after he escalated American involvement in 1965.³⁹⁵ The example of the Korean intervention and others showed that presidents had expansive Article II powers, Leonard C. Meeker wrote in a State Department memorandum.³⁹⁶ The world had “grown much smaller” in the twentieth century, he argued, and “[t]he Constitution leaves to the President the judgment to determine whether the circumstances of a particular armed attack are so urgent and the potential consequences so threatening to the security of the United States that he should act without formally consulting the Congress.”³⁹⁷ Therefore, in spite of the extensive and devastating character of the war, there was “no question” of the president’s authority to use force in Vietnam, both under Article II of the Constitution and the Southeast Asia Treaty Organization Treaty.³⁹⁸ The American people ultimately responded and rejected this view through massive antiwar demonstrations, which helped curtail U.S. military action, but the legal precedent remained, and was put to use by later administrations.³⁹⁹

There had been many previous small-scale operations, but the Korean War was an especially useful precedent because it showed that a president could use massive force without a war declaration. Meeker wrote: “In the Korean conflict, where large-scale hostilities were conducted with an American troop participation of a quarter of a million men, no declaration of war was made by the Congress. The President acted on the basis of his constitutional responsibilities.”⁴⁰⁰ The limited nature of the legal authority for the Korean War enhanced its usefulness as precedent. Meeker noted that, unlike Vietnam, there was no treaty at the time obligating the United States to defend the Republic of Korea.⁴⁰¹ Therefore, “[i]f the President could act in Korea without a declaration of war, a fortiori he is empowered to do so now in Viet-Nam.”⁴⁰²

In 1970, the Nixon Administration’s Office of Legal Counsel further narrowed the scope of military action requiring congressional authorization, relying in part on the Korean War. Assistant Attorney General William Rehnquist authored an OLC opinion on the president’s authority to order U.S. troops to invade Cambodia without congressional authorization. He distinguished between all-out war and more limited conflicts.⁴⁰³ This distinction was not new, but Rehnquist turned the concept of “limited” conflict upside down. All-out wars were declared wars like World War I and II, in contrast to Korea and Southeast Asia, he argued.⁴⁰⁴ In other words, the existence of “all-out war” turned on whether Congress had acted, not conditions in the warzone.

Congress had acquiesced in the Korean War, but, for Rehnquist, this did not function as constitutive of interbranch authority. Instead, congressional acquiescence furnished “strong evidence” that Truman had proper power as commander in chief. In this way, Truman’s example informed the way presidential power should be understood. Rehnquist emphasized: “Since judicial precedents are virtually non-existent on this point, the question is one which must of necessity be decided by historical practice.”⁴⁰⁵ Past actions would serve as authority for the present.

During the 1979–1980 Iran hostage crisis, President Jimmy Carter tasked the OLC with analyzing the impact of the War Powers Resolution on the president’s ability to use force without authorization. The Korean War was again evidence of the historical practice of broad unilateral power.⁴⁰⁶ In 2002, Congress authorized President George W. Bush’s decision to go to war in Iraq, but in the OLC’s opinion, statutory authority simply supplemented preexisting unilateral presidential authority. The Korean War and other examples showed that “to the extent that the President were to determine that military action against Iraq would protect our national interests, he could take such action based on his independent constitutional authority; no action by Congress would be necessary.”⁴⁰⁷

Through these opinions, the war-declaration power of Congress in the text of the Constitution was reduced to a supporting role as executive branch lawyers, relying on the Korean War as precedent, entrenched new rationales for presidential unilateralism, and historical practice became a source of authority for unilateral presidential power to go to war.

2. Enabling Substantial Force Based on “Interests”

Although the division of war powers in the text of the Constitution is ambiguous,⁴⁰⁸ defense of the nation from attack is a traditional justification for a president, as commander in chief, to use force to defend the country.⁴⁰⁹ In the Korean War, the United States itself was not directly militarily vulnerable from the North Korean action, so self-defense was not a justification for the president to act unilaterally. Instead, the State Department’s 1950 memorandum on the legal basis for the Korean War relied in part on the idea that the United States had an important “interest” at stake: protecting the new United Nations.⁴¹⁰ The idea that an “interest” defined by the president could be the basis for unilateral presidential war power derives from a World War II opinion of Attorney General Robert Jackson finding that the training of British flying students by the U.S. Army Air Corps was within the commander-in-chief power.⁴¹¹ The Korean War memorandum expanded this idea to include actual warfare by American forces.⁴¹² After the Korean War, this idea broadened further. The shrinking concept of war and the idea of “interests” justifying the use of force worked together. Multiple OLC and State Department opinions argued that a conflict’s status as a nonwar, coupled with a U.S. “interest,” was sufficient to enable a president to use force unilaterally.⁴¹³

A variety of national interests have been used as justification for a president, as commander in chief, to take unilateral action in the defense of the United States.⁴¹⁴ This idea is relied on in OLC opinions justifying unilateral presidential authority in a number of military actions thought to advance U.S. interests.⁴¹⁵ When the United States intervened during the Bosnian humanitarian crisis in 1995, for example, the OLC identified the “security and stability of Europe” as a fundamental interest of the United States that justified the president’s decision to commit U.S. troops.⁴¹⁶ President Clinton believed that a decision to disregard signed peace accords would injure American interests and plunge the region into a scale of violence that Europe had not experienced since World War II.⁴¹⁷ Because of this, the use of NATO forces would serve significant national interests for the United States, particularly European stability, by preserving peace in Europe and preventing the possibility of violence spreading throughout the region.⁴¹⁸

The OLC has continued to rely on similar reasoning in opinions on unilateral military interventions. In justifying President George W. Bush’s proposed deployment of American soldiers to Haiti in order to quell the political unrest following a coup d’état, the OLC emphasized the importance of the United Nations to U.S. foreign policy.⁴¹⁹ The U.N. Security Council had authorized the deployment of a multinational force to provide humanitarian relief and aid peaceful resolution of the conflict in Haiti.⁴²⁰ Referencing President Truman’s decision to aid the United Nations during the Korean War, the OLC quoted the State Department’s 1950 memorandum stating that “[t]he continued existence of the United Nations as an effective international organization is a paramount United States interest.”⁴²¹

The idea that a “national interest” could justify the use of military force without congressional authorization was invoked when President Barack Obama ordered airstrikes in Libya in 2011 and Iraq in 2014 in an effort to prevent civilian deaths at the hands of Muammar Gaddafi and the Islamic State of Iraq and the Levant (ISIL) respectively. In both instances, more than one “interest” was combined. The OLC suggested that in Libya there were at least two national interests at stake: “supporting the UNSC’s credibility and effectiveness,” based on the Korean War example, and “preserving regional stability.”⁴²² Taken together, the OLC found that these interests “provided a sufficient basis for the President’s exercise of his constitutional authority to order the use of military force.”⁴²³ In ordering airstrikes against ISIL in 2014, President Obama identified three relevant national interests: “protecting American lives and property; assisting an ally or strategic partner at its request; and protecting endangered populations against humanitarian atrocities, including possible genocide.”⁴²⁴ This combination of interests, coupled with the idea that the strikes were not a “war,” gave the president power to act unilaterally.⁴²⁵

More recently, the Trump Administration built upon this precedent as authority for a series of airstrikes against chemical weapons facilities run by Bashar al-Assad’s Syrian government. The Trump OLC focused heavily on a president’s historical ability to act unilaterally in the defense of national interests, relying four times on the Korean War as authority for their argument that the president has the constitutional power to mobilize the military to protect national interests without seeking prior congressional authorization.⁴²⁶ The U.S. interests at stake in Syria were the need to promote regional stability and to prevent the spread of an ongoing conflict.⁴²⁷ The OLC emphasized that the United States was “not the world’s policeman,” but “as its power has grown, the breadth of its regional interests has expanded and threats to national interests posed by foreign disorder have increased.”⁴²⁸ Again, a combination of interests provided a justification for unilateral presidential action. One of the interests at stake in Syria ensuring that their use of chemical weapons would not be a model for others.⁴²⁹

While the specific circumstances continue to change, the 1950 State Department memorandum continues to inform the idea that presidents possess unilateral authority to use military force in support of various national “interests” around the world, supporting an ever-expanding view of presidential power. As legal scholars Curtis A. Bradley and Jack Goldsmith argue, however, an interests test “provides no meaningful legal check on the president.”⁴³⁰ Because the interests test does not constrain presidential power, they argue that the implication of the OLC argument is that there is, in fact, only one test: “whether the use of force, based on its anticipated nature, scope and duration, constitutes a ‘war.’ ”⁴³¹ If not a “war,” congressional authorization would not be required.⁴³² This leaves the consequential example of conceptualizing the Korean War as a “police action,” and the shrinking concept of war as an important driver of the atrophy of war-powers limits. What makes them stick is the inability to roll back the past, so that the Korean War missteps remain a part of the gloss of history informing the scope of presidential power.⁴³³

C. Toward a Dynamic Approach to Historical Gloss

This Article’s examination of Korean War history illuminates the difficulties in the way the past is deployed in historical practice methodology. As reliance on the war in executive branch legal opinions shows, a 1950s understanding of Truman’s actions serves as precedent in contemporary separation of powers analysis, even though the historical understanding of those events has changed over time.⁴³⁴ The historical record amply reveals that Truman’s effort to downplay the brutality of the war was deeply at odds with what was experienced in Korea—by civilians, U.S. and U.N. military personnel, and others on both sides in the conflict.⁴³⁵ This was evident at the time, and was downplayed in part to dampen political impacts in the United States⁴³⁶ and in part by the racism informing the U.S. approach to conflicts in Asia, which devalued the humanity of Asian civilians and enemy soldiers.⁴³⁷

The historical understanding of the war has changed markedly over time as U.S., Chinese, and Soviet archival records have been released, undermining the Truman Administration’s assumptions about the conflict. Evidence at the time of urgent decisions is always limited, but the shift in understanding of the beginnings of the Korean War has important implications for how the war serves as contemporary precedent. It also illuminates another dimension: failures of historical understanding. It was a mistake at the time, for example, to downplay the war’s brutality. Strategic choices did not value Korean lives. Civilians were not protected but treated as suspects.⁴³⁸ This is evidence of what historian John Dower has called a “failure of imagination” fueled by racism.⁴³⁹ An outdated conceptualization of the war is nevertheless captured in opinions that are built on as precedent, without regard to the shifting historiography. This allows perpetuation of the fiction that the Korea “police action” was somehow less than all-out war, and it helps to justify executive unilateralism in subsequent deadly conflicts.

Bradley and Morrison emphasize that in historical practice analysis, “mere recitations of operationally similar past uses of force should not suffice.”⁴⁴⁰ OLC opinions invoking the Korean War often engage in this kind of recitation.⁴⁴¹ Instead, as Griffin has argued, understanding constitutional change requires “intensive study of the historical contexts in which government action occurs,”⁴⁴² an approach adopted in this Article.

If the past is to inform the present, the use of history must not rest on a gloss of discarded ideas, as has happened with the Korean War. To accomplish this, history cannot be detached from historiographic change. And most important: some past actions should serve as negative examples of what leaders should avoid.⁴⁴³ The full history of the Korean War should serve as a cautionary tale, informing the importance of restoring Congress’s role, and of executive branch restraint.

Conclusion

The history of war has long informed law, culture, and politics. The meanings of war are shaped in part by memory, and in that respect it is not surprising to see competing understandings of a war serving diverse purposes. More is at stake, however, when a president’s military actions become legal precedent. As this Article has shown, in historical practice analysis, an early understanding of war-related actions gets locked into executive power and amplified over time, even as historians rewrite the history of the conflict itself.

Felix Frankfurter was right that looking to history allows constitutional interpretation to break free from the “inadmissibly narrow conception of American constitutional law” confined to the words of the Constitution alone.⁴⁴⁴ He sought to inform interpretation with the “gloss” that life had written upon the words. The life Frankfurter had in mind surely didn’t come to an end once an opinion was written, and then destined to serve as precedent. As the justice himself would have known, understanding of the past deepens over time.⁴⁴⁵

What is at stake in the role the Korean War has played as historical gloss goes well beyond the way the president’s dismissal of Congress’s power is replicated over time. The flattened vision of the war in precedent cannot hear the voice of Kim Yeh Soon, whose oral history decades after the conflict captured her terror.⁴⁴⁶ She did not speak to questions of constitutional interpretation, but her voice illuminates the nature of the power legal precedent now allows one human to unleash.

Historians, of course, cannot restrain the forces of executive overreach, militarization, and conflict, but it is nevertheless true that the use of history in war powers precedent fails when it is untethered from evolving understandings in the work of historians.

* Asa Griggs Candler Professor of Law, Emory University School of Law. For extremely helpful conversations and/or comments on earlier drafts and related workshops and lectures, I am very grateful to Diane Amann, Curtis Bradley, Deborah Dinner, Martha Fineman, Martin Flaherty, George Georgiev, Benjamin P. Greene, Daniel W. Hamilton, Gary Hess, Matthew Lawrence, Andy Kirk, Heidi Kitrosser, Deborah Pearlstein, Elizabeth Saunders, David Tanenhaus, Ruti Teitel, Mark Tushnet, Amanda Tyler, Steve Vladeck, and Mariah Zeisberg. Archivists at the Harry S. Truman Presidential Library & Museum, the Library of Congress, and the U.S. National Archives and Records Administration provided indispensable help with archival sources. Librarians at the Hugh F. MacMillan Law Library at Emory University School of Law, including Amy Flick, Elizabeth Christian, and others, offered exceptional and timely assistance with research, including locating hard to find foreign language sources. For outstanding research assistance, I am indebted to Reebehl El-Hage, Rachel Hendrix, Danielle Kerker, Haley Phillips, Joseph Pinto, Catherine Smith, Dan Weigel, Yiran Wu, and Michaela Yip. Parts of this Article could not have been written without Korean language reading and translation assistance from Stacy Jeewon Lee, Jacqueline L. Rhee, Wanji Seong, Diana Dahye Shin, and Christina Yu. Deep thanks to Hwa Yeong Wang who took time from her own important scholarship to help with final edits that relied on Korean language sources. I am indebted to political scientist Juman Kim for informing me about Korean War oral histories, and to historian Daniel Kim for advice about war memorials in South Korea. Special thanks to Dr. Koodo Chung and Hyeyeon Kim, who enabled my visit to the No Gun Ri Memorial Peace Park and provided extensive information about the events at No Gun Ri. This research and writing could not have been completed without the support of my dean, Mary Anne Bobinski. I am also deeply grateful to the Michigan Law Review editors for their support for legal history scholarship that relies on historical and foreign language sources, and for their insights and hard work, which improved this Article. I cannot close without thanking Bill Aitkenhead, my combo proofreader/foreign research travel companion/husband. This Article is part of a book project on the political, legal, and cultural history of distant American war, and the rise of presidential unilateralism, which enabled ongoing war.