The Korean War is an example of the reliance in law on outdated history. President Harry Truman minimized the conflict, refusing to call it a “war.” My research shows that he did not seriously contemplate whether to ask Congress for a war authorization until after U.S. troops were in battle, and then proceeded without Congressional authorization for political reasons. He also ordered U.S. military engagement before the U.N. Security Council authorized it, even though the administration later pointed to the UNSC resolution as providing legal authority for war. The contemporaneous legal document most often cited on the legal basis for the war, a 1950 State Department opinion, curiously was edited when published in a way that obscures the timing of Truman’s action in advance of the UNSC.
Although Truman justified his action by minimizing the war, calling it a “police action,” in the end, the conflict resulted in 2-3 million deaths. Many were civilian casualties from U.S. aerial bombing – the U.S. flew over a million sorties and dropped 386,027 tons of explosives. If a conflict with that level of destruction was not a “war,” then the concept of war has no meaning.
Often called the “forgotten war,” historians and researchers over the years have excavated the war’s brutal character – part of what Paul Chamberlain calls “the Cold War’s killing fields.” Investigative reporters exposed an American massacre of Korean civilians. Although historiographic debate on aspects of the war continues, of course, the opening of Russian and Chinese archives solved important puzzles, clarifying the nature of the initial outbreak of war. Truman thought that the North Korean invasion was part of a master plan on the part of Stalin for Communist world domination, but the archival record reflects Korean initiative driven by conflict following the peninsula’s post-WWII division, and Soviet and Chinese initial reluctance for all-out war.
Within the first two days after the North Korean invasion, members of Congress raised the question of whether the Korean conflict was a civil war, whether U.S. interests were at stake, and whether Truman could act without Congressional authorization. Many shared the concerns of Senator Robert Taft who argued that there was “no legal authority for what he has done” when Truman ordered U.S. military engagement, and warned that if Congress did not push back, these actions would “terminate[] for all time the right of Congress to declare war.” Instead of welcoming Congressional support, concern that an affirmative vote might not be unanimous – something neither Woodrow Wilson nor FDR received for WWI or II – undermined Truman’s willingness to consider a war resolution.