File No. 763.72114/4059
The Secretary of State to the Attorney General ( Gregory)
Sir: I have the honor to acknowledge the receipt of your letter of September 27, 1918,1 inviting my attention to certain German subjects who were interned by the governmental authorities of the Republic of Panama within the territory of that country and thence removed under agreement between the Republic of Panama and representatives of this Government to this country. You ask for a statement of my attitude with regard to the status of these enemy aliens, especially as to the question whether “the informal arrangement entered into between the officials of this Government in the Canal Zone and the officials of the Government of the Republic of Panama” can be said to justify, under international law, our action in imprisoning these men within the United States.
I have the honor to state, in reply, my opinion that the removal of these enemy aliens from the Republic of Panama to this country and their detention by this Government is justified, in view of the following considerations.
The circumstances as understood by the Department under which the internment in Panama of the persons in question was made and their removal was arranged are briefly as follows:[Page 240]
1. It appears that about February 3, 1917, previous to the declaration of war the crews of four German ships which were in the Panaman port of Colon were removed and detained. The statement of the War Department, transmitted in its letter of April 27, 1918, to the Secretary of State in respect to this incident, is as follows:
About February 3, 1917, the crews of the four German ships, which had been in the harbor of Colon since August, 1914, were upon the order of the Governor, Panama Canal, taken from those ships and turned over to the military forces for detention. The Governor allowed any member of these crews to leave who desired to do so; however, very few left, and when Taboga was decided upon as the place of detention, the crews of the four vessels above mentioned were also sent to Taboga Island.
It appears that these seamen were brought to the United States at the same time as the other interns on Taboga Island, on April 19, 1918. So far as the circumstances are understood by the Department it would appear that the status of these seamen might properly be regarded as that of American interns, and that the seizure and detention of these men by the Panama Canal authorities is clearly justifiable under articles 7 and 23 of the convention between the United States and Panama of 1903. It is not entirely clear that Panama contends that these men have the status of Panaman interns, but in case such a contention should be put forward by her and maintained the seizure and detention of these men would, nevertheless, be justified in the light of the following discussion in relation to the men who were arrested by the Panaman police after the declaration of war, and also interned on Taboga Island.
2. (a) About April 13, 1917, shortly after the declaration of war against Germany by the Republic of Panama, a number of German subjects residing in the Republic were arrested by the Panaman police, in accordance with a plan determined upon on the previous day by the Panaman authorities at the request of the Chief of Staff of the Panama Canal Zone and the American Minister at Panama. In making these arrests, each Panaman police officer was accompanied by a representative of the United States Government. Other arrests seem to have been made at later dates. All of these civilians thus interned, including the seamen from the German ships, were by agreement placed promptly after their arrest in a hotel on Taboga Island and guarded by half a company of United States Infantry. This island is several miles off the coast in the Pacific Ocean west of the city of Panama and is a part of the territory of the Republic of Panama.
In the spring of 1917 a question arose between Sweden and Panama with reference to a threatened claim for damages because of the [Page 241]internment of an alleged Swedish subject with the Germans at Taboga Island. This matter was brought to the attention of this Government in a note from the Panama Foreign Office, May 2, 1917 (No. S.P. 1726),1 and the American Minister at Panama, under instructions from his Government, replied in a note of August 2, 1917 (No. 443), as follows:
I duly transmitted Your Excellency’s note to the Department of State, and I am authorized by it by instruction under date of June 21 last2 to assure Your Excellency that my Government will hold that of Your Excellency harmless against loss on account of having theretofore interned persons in conformity with the desire of my Government, provided, of course, my Government shall be kept informed of the proceedings of claimants and be satisfied that the Government of Panama has resisted their claims in good faith.
The question of the status of the persons interned subsequent to the declaration of war was raised the following winter and the Panaman Government seemed to take the position that they were Panaman interns and referred apparently to support their position to their seizure by Panaman authorities and to the American note of August 2, 1917, mentioned above.
In April, 1918, it was decided by the commanding officers of the Canal Zone that the removal of these interned Germans to the United States was advisable. It was believed by the military authorities that the safety of the Canal and the adjacent territory was jeopardized by such a large number of enemy aliens, even though they were interned. The matter of their removal was taken up in a conference with the American Minister at Panama and certain commanding officers of the Canal Zone and Panaman officials. No serious objection appears to have been made to the removal by the authorities of the Panama Government, except that it was insisted that the status of the interned Germans be not changed by the removal. The arrangement reached at the conference was later confirmed by an exchange of notes between the American Minister and the Panama Foreign Office. The note from the American Minister to the Panama Foreign Office of April 18, 1918, contains a statement regarding the arrangement arrived at as follows:
I have the honor, in accordance with our understanding, hereby to confirm the pleasant understanding and accord of our respective Governments in the propriety of the transfer of the interns at Taboga Island to the United States, and to note that it is agreed that the legal status of said interns with reference to our respective Governments shall not be altered by said transfer, and that any and all rights of our respective Governments regarding said interns, whatever [Page 242]said rights may be, are in no wise forfeited or altered in the making of said transfer. Likewise the agreement evidenced by our respective notes, No. S.P. 1726 of May 2, 1917, of Your Excellency, and F. O. No. 443 of August 2, 1917, is not changed by virtue of this transfer.
It is understood that the interns in question sailed from Taboga Island for the United States on April 19, 1918.
From the foregoing statement of facts it appears that the persons interned after the declaration of war were arrested by Panaman police officers, although they were accompanied by an American representative in most cases; that they were transferred to the United States by agreement with the Panaman Government; that they were so transferred on account of considerations growing out of the safety of the Panama Canal; that the United States has given assurance on certain conditions to hold Panama harmless on account of loss through these internments, and that this Government may be charged as having impliedly recognized the contention of the Panaman Government that these persons have the status of Panaman interns.
(b) Any doubt as to the propriety of the part taken by this Government in respect to the apprehension of these persons and their detention in Panama and the United States would appear to be removed by the provisions of the following three articles of the convention of 1903 between the United States and Panama.
Article 1. The United States guarantees and will maintain the independence of the Republic of Panama.
Article 7. …
The Republic of Panama agrees that the cities of Panama and Colon shall comply in perpetuity with the sanitary ordinances whether of a preventive or curative character prescribed by the United States and in case the Government of Panama is unable or fails in its duty to enforce this compliance by the cities of Panama and Colon with the sanitary ordinances of the United States the Republic of Panama grants to the United States the right and authority to enforce the same.
The same right and authority are granted to the United States for the maintenance of public order in the cities of Panama and Colon and the territories and harbors adjacent thereto in case the Republic of Panama should not be, in the judgment of the United States, able to maintain such order.
Article 23. If it should become necessary at any time to employ armed forces for the safety or protection of the Canal, or of the ships that make use of the same, or the railways and auxiliary works, the United States shall have the right, at all times and in its discretion, to use its police and its land and naval forces or to establish fortifications for these purposes.[Page 243]
These treaty provisions clearly show the paramount rights of the United States in Panama when the maintenance of order, or the safety or protection of the Canal is at stake. It is believed that if, in the end, this Government should find it necessary to assume the entire responsibility of the apprehension and detention of these interns as American interns it could find sufficient justification therefor in its broad powers under the treaty to preserve order on the Isthmus and to protect and maintain the Panama Canal.
(c) The foregoing discussion renders it scarcely necessary to advert to the propriety of the removal of the persons in question from Panama territory to the United States under international law and practice. If these men are to be regarded as civil interns, which it appears is their status, it is difficult to find in international practice in previous wars exact precedent for the transfer of their custody from one ally to another. There are, however, precedents for the transfer of prisoners of war between allies. On analogy and in principle, there seems to be no reason why civil interns, in the absence of treaty stipulation with the enemy, should not be transferred from one ally to another in the interest of the common cause while retaining their original status. In the present case the political ties between the United States and Panama, which are much closer and stronger than between allies in ordinary circumstances, would tend to justify even greater freedom of transfer of interns.
By reason of the special arrangement between the two countries, regarding the transfer of these interns, the peculiar protective relation of the United States to Panama under the treaty of 1903 on account of the Canal, and the analogy and principle of international practice in respect to prisoners of war, I am clearly of the view that the action of the United States in this matter is justified.
I am [etc.]