The Legal Process in Foreign Affairs: Military Intervention -- A Testing Case
In the wake of the United States intervention in Cambodia in April I970, Secretary of State Rogers sent a memorandum to his departmental advisers urging that, "When crises occur in any area of the world, those in the Department who are most directly involved should be careful to ensure that the legal implications are not overlooked."' Secretary Rogers urged particular care in situations involving the potential use of United States armed forces. The memorandum was sent in response to criticisms, in Congress and elsewhere, that legal advice had not been sought in advance of United States ground action in Cambodia. The absence of any references to legal issues in the published portions of the Pentagon Papers suggests that the failure was not limited to the Cambodian affair. This paper suggests procedures by which law may be brought to bear on the process of deciding whether and how to use United States military force short of full-scale war. Particular attention is focused on foreign civil strife, for in the past-and predictably in the future-most decisions by our government on whether to use force have involved such conflicts.2 This area of foreign policy is perhaps the most difficult for the legal process. The reason for the difficulty is less the significance of decisions to intervene than the character of the factors involved in the decisions. The United States Government decision in I968 to support trade preferences for developing countries had a greater impact on our national interestshowever defined-than the I965 decision to land troops in the Dominican