The Counselor for the Department of State (Polk) to President Wilson

My Dear Mr. President: I am extremely sorry to have to call your attention again to the question of the discharge of neutral aliens from the Army. An effort was made to clear up the matter by the amendment to the Draft Act, which is now the law and which reads as follows:

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“That such draft as herein provided shall be based upon liability to military service of all male citizens or male persons not alien enemies who have declared their intention to become citizens between the ages of twenty-one and thirty years, both inclusive, and shall take place and be maintained under such regulations as the President may prescribe not inconsistent with the terms of this Act: Provided, That a citizen or subject of a country neutral in the present war who has declared his intention to become a citizen of the United States shall be relieved from liability to military service upon his making a declaration, in accordance with such regulations as the President may prescribe, withdrawing his intention to become a citizen of the United States, which shall operate and be held to cancel his declaration of intention to become an American citizen and he shall forever be debarred from becoming a citizen of the United States.”22

The question has arisen as to whether it should be applied to neutral aliens already drafted into the Army before the passage of the amendment, or merely to those who, since the amendment, have been or are to be drafted.

The Acting Judge Advocate General has rendered an opinion, copy of which I enclose,23 holding that this amendment “does not except from military service subjects of a neutral country who have been drafted or were in the military service at the time of the approval of the amendment.”

It is clear that the amendment may be open to the interpretation that a neutral declarant, even though inducted before the amendment passed, may claim to be relieved from liability to military service whenever he chooses to withdraw his declaration of intention. Moreover, many of the diplomats of neutral countries have expressed the hope that this amendment will be applied to neutral aliens inducted into the Army before its passage, in order that the present strained situation may be once for all cleared up by the voluntary choice of the declarants in the Army. As you know, some of the neutrals serving under protest have been killed in action.

In view of the possibility of properly applying the amendment to inducted men and thereby ending satisfactorily a disagreeable controversy with the neutrals, would it not be a good plan for you to call upon the Attorney General as the highest law officer of the Government to render a final opinion to you on the question? Such an opinion would bind all the Departments of the Government, and would have a decided effect upon the foreign Governments concerned, as it will be the basis of our correspondence hereafter with them on this subject. Moreover, an opinion by the Attorney General would take the interpretation of the amendment out of the realm of the [Page 197] War and State Departments, which have developed strongly opposed views on the general question of liability to military service of neutral declarants in the United States.

I earnestly trust it may be possible to refer this matter to the Attorney General, and if so, to advise me of when such reference is made.

Faithfully yours,

Frank L. Polk
  1. 40 Stat. 885.
  2. Not found in Department files.