Response to Mark Scarberry on MacArthur

Mon Oct 5 13:45:00 PDT 2009

I responded to Professor Scarberry's post privately by noting that I have written on this topic in a working paper. He suggested that the listserv might be interested in my posting a short extract from my paper.

p.19 n.47: See, e.g., DAVID MCCULLOUGH, TRUMAN 837 (1992) ("[General MacArthur’s March 24, 1951 communiqué for which he was later removed] was a most extraordinary statement for a military commander of the United Nations to issue on his own responsibility.") (quoting President Truman’s Memoirs) (emphasis added); MICHAEL SCHALLER, THE AMERICAN OCCUPATION OF JAPAN: THE ORIGINS OF THE COLD WAR IN ASIA 167 (1985) (noting that as early as 1949, "[o]nce again, the Supreme Commander [General MacArthur] asserted [to State Department officials] that his special ’international status’ exempted him from normal control by Washington"); WILLIAM MANCHESTER, AMERICAN CAESAR: DOUGLAS MACARTHUR 1880-1964, at 549, 552 (1978) ("In the prevailing Washington view, MacArthur was an American official, and subject to all the requirements of such a position. . . . [MacArthur] expressed the opinion that [Supreme Commander of Allied Powers] was an international officer.
 He could be called to account, MacArthur said, only in consequence of an agreed Allied position.") (quoting William J. Sebald, United States Ambassador to Japan); RICHARD H. ROVERE & ARTHUR M. SCHLESINGER, JR., THE GENERAL AND THE PRESIDENT: AND THE FUTURE OF AMERICAN FOREIGN POLICY 173 (1951) ("[M]y duty . . . [is] to replace you as Supreme Commander, Allied Powers; Commander-in-Chief, United Nations command; Commander-in-Chief, Far East; and Commanding General, U.S. Army, Far East.") (quoting Truman’s removal order) (emphasis added). 

MacArthur’s legal position was something akin to that which would occur should the United Nations General Assembly elect or the Security Counsel choose an active duty United States military officer to be Secretary General, with the consent of the President but absent formal removal from the domestic chain of military command. Arguably, international treaties(assuming at least one of which was ratified by the United States) would clothe the officer with independence, at least with regard to United Nations responsibilities, notwithstanding his (possibly) remaining amenable to presidential orders otherwise.

Rightly or wrongly, MacArthur believed his appointments to international offices, Supreme Commander of Allied Powers and Commander in Chief, U.N. command, clothed him with some sort of independence from the President. Is it surprising that MacArthur believed this during the Korean War? MacArthur’s view was broadly consistent with the "traditional view" of the Executive Branch. See supra notes 44-45 (explaining that international offices are created in conjunction with "foreign nation(s)"). Furthermore, our courts had already held, i.e., prior to Truman’s removing MacArthur, that they (the federal courts) had no jurisdiction to inquire as to the lawfulness of detentions instituted by MacArthur in his capacity as an international officer. See Hirota v. General of the Army MacArthur, 338 U.S. 197 (1948) (per curiam):

We are satisfied that the [international] tribunal sentencing these petitioners is not a tribunal of the United States. The United States and other allied countries conquered and now occupy and control Japan. General Douglas MacArthur has been selected and is acting as the Supreme Commander for the Allied Powers. The military tribunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers. Under the foregoing circumstances the courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences imposed on these petitioners and for this reason the motions for leave to file petitions for writs of habeas corpus are denied.
Id. at 197-98. 

Justice Douglas disagreed:

I assume that we have no authority to review the judgment of an international tribunal. But if as a result of unlawful action, one of our Generals holds a prisoner in his custody, the writ of habeas corpus can effect a release from that custody. It is the historic function of the writ to examine into the cause of restraint of liberty. We should not allow that inquiry to be thwarted merely because the jailer acts not only for the United States but for other nations as well.

Id. at 204 (Douglas, J., concurring) (emphasis added). 

Exactly how did Justice Douglas imagine the legality of a detention could be tested absent some "review [of] the judgment" of the international tribunal? Moreover, Justice Douglas was assuming that MacArthur, at that time, was one of "our" generals. That position may very well have surprised Whitehall, Canberra, Wellington, Delhi, our other allies on the Allied Council for Japan, on the Far Eastern Commission, on the International Military Tribunals in Manila and in Tokyo, not to mention the countless families of war dead and injured veterans among our allies who fought under the overall leadership of American theatre commanders. Admittedly, that is not a precise legal argument, originalist or otherwise. It is just a moral intuition. See MacArthur’s Speech on the U.S.S. Missouri (Sept. 2, 1945) ("As supreme Commander for the Allied Powers, I announce it my firm purpose, in the tradition of the countries I represent, to proceed in the discharge of my
 responsibilities with justice and tolerance, while taking all necessary dispositions to ensure that the terms of surrender are fully, promptly, and faithfully complied with.") (emphasis added); II SIR PAUL HASLUCK, THE GOVERNMENT AND THE PEOPLE 1942-1945, at 110 (Canberra 1970) (noting that the Australian Government nominated MacArthur to "Supreme Commander of all Allied Forces in the South-West Pacific"); see also supra note 15 and accompanying text, infra notes 55-56 and accompanying text
(criticizing the Amars and Manning for intuitionism).

Extract from Seth Barrett Tillman, Legislative Officer Succession: Part I and Part II (working paper 2008), available at http://works.bepress.com/seth_barrett_tillman/29/, also available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=978878. Part III is available here: http://works.bepress.com/seth_barrett_tillman/30/.

Just to be clear, the above extract from an already existing paper should not be taken as a comment on any present or impending litigation or political controversy. 

Sincerely,

Seth
Independent Scholar

Seth Barrett Tillman
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=345891 http://works.bepress.com/seth_barrett_tillman/
FORTHCOMING: 
Professor Jeremy D. Bailey, The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman, 33 Harv. J.L. & Pub. Pol'y *1-11 (forthcoming 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1473276; 

     and, 

Professor Robert F. Blomquist, Response to Tillman's Blushing Our Way Past History (working paper 2009-2010). 

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