763.72/1434

The Counselor for the Department of State ( Lansing ) to the Secretary of State

Dear Mr. Secretary: I have been reading over the annexed instruction to Ambassador Gerard of February 10th30 to determine how far a course of action was declared by that document in case of submarine attack.

The important statements are contained in the three paragraphs at the top of page 231 which I have underscored in red ink and the key words I have made “black-faced.” They are “indefensible violation,” “strict accountability” and “steps . . . necessary . . . to safeguard.”

The term “indefensible violation” eliminates in my opinion any argument as to the justification of the German naval or aerial authorities for their action in attacking American vessels without warning. It leaves no room for debate, but is an assertion that the act constitutes an international crime.

“Strict accountability” can only mean that the German Government must make full reparation for the act of their naval force and must also repudiate the act, apologize for it and give ample assurance that it will not be repeated.

“Steps . . . necessary . . . to safeguard” can have no other meaning than to protect American lives and property by force unless the German Government guarantee that American lives and property will not be molested on the high seas.

In view of these declarations, which are substantially unqualified, a representation covering the attacks on the Cushing and the Gulflight would leave little opportunity to discuss the subject of submarine or aeroplane activities in the “war zone.” Those cases would seem to require brief and positive protests and demands based on the declarations of February 10th.

In the Thrasher case the circumstances are different. There is room for argument and a discussion of the use of submarines would be appropriate [Page 385] since it is open to question whether the declarations apply to that particular case.

I suggest, therefore, the advisability of acting in the Thrasher case before the full reports are received in the other cases, so that a more moderate and less rigid representation may be made before action is taken in the other cases, which, if the reported facts are confirmed, leave little opportunity for a conciliatory note, unless we recede from our former statements, a course which I assume will not be done.

Faithfully yours,

Robert Lansing