817.1051/402
The Minister in Nicaragua (Hanna) to the Secretary of
State
Managua, May 23, 1930.
[Received May
27.]
No. 45
Sir: With reference to the Department’s
instruction No. 4 of April 19, 1930, expressing the Department’s desire
that I avail myself of an early opportunity to discuss with the
Nicaraguan Government the status of the Guardia Nacional, I have the
honor to report that I took up this matter informally with President
Moncada soon after the instruction reached the Legation and outlined
briefly the scope of the inquiry which the Department desires to have
made in this matter. I pointed out particularly the Department’s desire
to clear up the situation regarding the Guardia Agreement which became
confused as a result of certain amendments made to it by the Nicaraguan
Congress and approved by President Moncada on February 21, 1929.
President Moncada expressed his willingness to discuss these matters and
assured me of his cooperation in reaching a satisfactory arrangement of
them.
It appeared to me that the logical starting point for the discussion is
the Department’s instruction No. 519 of May 29, 1929, regarding the
amendments to the Guardia Agreement which presented a specific method of
procedure to render those amendments satisfactory to the Government of
the United States. Accordingly I transmitted to President Moncada on May
5 a memorandum embracing the objectionable amendments together with a
complete statement of the Department’s objections to them and the draft
of an exchange of notes embodying the Department’s views as to the
points which should be covered. A copy of the memorandum is transmitted
herewith.
As stated in the last paragraph of the Department’s instruction No. 4,
some of the objections to the amendments as stated in the Department’s
prior instruction No. 519 are no longer of great importance, and it will
be noted that I included in my memorandum only those objections which
appear to be of importance at this time.
I called upon President Moncada this morning at his request and he
discussed the memorandum with me and, while concurring with it in
substance, suggested that the following changes be made in the draft of
the note to be presented by the Nicaraguan Government.
- 1.
- To delete the words “of five hundred thousand cordobas during a
period of six months” at the end of Paragraph 2, Page 1, of the
draft note to be presented by the Nicaraguan Government and to
substitute therefor “necessary to maintain the Guardia at a strength
adequate to perform the duties for which it was created”. The
President stated that it might provoke criticism to mention the
specific amount of five hundred thousand cordobas, that it is his
firm intention to continue
[Page 660]
to provide necessary funds for the Guardia whatever the amount as in
the past, and that the phrase substituted for the deleted words is
more elastic and applicable to emergencies such as the present, for
example, in which he has increased the Guardia by two hundred men. I
agreed to this change.
- 2.
- To add on Page 2 of the note to the second paragraph the sentence
“provided that the Chief of the Guardia shall render due account in
accordance with law to the Tribunal Suprema de Cuentas of the
Republic”. I agreed to this addition.
- 3.
- To delete the paragraph of the note relating to Article 5 of the
Agreement. He said he could not approve this paragraph of the note
without first consulting the Supreme Court because there are those
who hold the opinion that the procedure outlined in this paragraph
is in opposition to the correct procedure under Nicaraguan law. He
said he is averse to consulting other branches of the Government in
this matter because he fears that publicity would follow which would
jeopardize the success of our efforts in this matter. He suggested
therefore that the point covered by this paragraph of the note be
left for later adjustment. I told him I thought it desirable to
clear up all points at this time if at all practicable and requested
him to let me endeavor to find a formula which would be acceptable
to him and to my Government. He gladly agreed and I have substituted
the following for the objectionable paragraph of the note.
“With respect to Article 5 my Government desires to point out
that the purpose of the amendment to this article was to
make it conform to Nicaraguan legal procedure. My Government
understands, however, that the Government of the United
States considers that the efficiency and morale of the
Guardia might be gravely affected if the Nicaraguan members
of the organization were exposed to prosecution by local
judicial authorities for acts performed in the line of duty,
and would not wish to be party to an agreement under which
its officers might be placed in a position where their
subordinates might be subjected to prosecution for acts
committed in good faith under the orders of those officers.
My Government gives full weight to this objection of your
Government and, pending a possible change in the prescribed
legal procedure of Nicaragua, will be guided in this matter
by Article 1 of the Articles for the Government of the
Guardia Nacional de Nicaragua prepared in agreement with the
Nicaraguan Supreme Court of Justice and approved by the
President of the Republic which reads literally as follows:
“‘Article 1. The personnel of the Guardia Nacional de
Nicaragua will be subject for all military offenses
and for acts committed in the line of duty to the
jurisdiction of the military tribunals established
under the articles for the government of the Guardia
Nacional de Nicaragua. The findings of such
tribunals, after approval of the Chief of the
Guardia, are final and are not subject to appeal or
review except by the Supreme Court of Nicaragua, and
then only on questions of excess power or questions
of jurisdiction.
[Page 661]
“‘Other offenses committed by members of the Guardia
Nacional de Nicaragua shall be investigated by
officers of the Guardia Nacional as directed by the
Chief of the Guardia Nacional. If it should appear
upon investigation that the offense is not subject
to military jurisdiction, the offender will be
turned over to the civil authorities.’”
- 4.
- To omit the reference to Article 12 on Page 3 of the note because
of its comparatively trifling importance and for the further reasons
that this point has never been raised in practice and the amended
article need not be interpreted as meaning that officers of the
Guardia must speak Spanish at the time of their detail to that
organization. I agreed to this omission.
I am submitting a new draft note modified as outlined above for President
Moncada’s consideration and I believe all the changes will receive his
approval excepting possibly the change in the paragraph relating to
Article 5 of the Agreement. I hope the Department may find it convenient
to instruct me by cable whether my action in this matter is approved and
if I may so advise this Government in a similar note in conformity with
the plan set forth in the Department’s instruction No. 519 of May 29,
1929.I have hoped to clear up this matter before proceeding to discuss
the other points mentioned in the Department’s recent instruction No.
4.
I have [etc.]
[Enclosure]
The American Legation
to the Nicaraguan Ministry for Foreign
Affairs
Memorandum
The Minister for Foreign Affairs transmitted to the Legation on March
8, 1929,22 a copy of the Agreement for the creation and
establishment of the National Guard embodying the amendments to this
Agreement which were proposed by the Congress of Nicaragua and
approved by the President of the Republic on February 21, 1929.23
Among the amendments thus proposed were the following:24
[Page 662]
| Original Agreement of
1927 |
Amendments Proposed by the Congress
of Nicaragua |
| I |
I |
. . . . . . .
The foregoing provisions shall be
regarded as the minimum requirements for the Guardia
Nacional de Nicaragua. If the condition of the Nicaraguan
Government’s finances shall so warrant, the strength of the
Guardia Nacional, commissioned and enlisted, and the
expenses thereof may be increased upon the recommendation of
the Chief of the Guardia Nacional and upon the consent in
writing of the President of Nicaragua.
. . . . . .
. |
. . . . . . .
The foregoing
provisions shall be the only ones which shall be
authorized for the maintenance of the Guardia National,
and any increase or distribution thereof shall be made
only by virtue of the prior and express authorization of
Congress.
. . . . . . . |
| II |
II |
. . . . . . .
It shall be subject only to the
direction of the President of Nicaragua, . . . . . .
. |
. . . . . . .
It shall be subject only to the
direction of the President of Nicaragua, through himself or through the proper channels
(porsioporlos organos
correspondientes), . . . . . . . |
| III |
III |
| All matters of recruiting, appointment, instruction,
training, promotion, examination, discipline, operation of
troops, clothing, rations, arms and equipment, quarters and
administration, shall be under the jurisdiction of the Chief
of the Guardia Nacional. |
All matters of recruiting, appointment, instruction,
training, promotion, examination, discipline, operation of
troops, clothing, rations, arms and equipment, quarters and
administration, shall be under the jurisdiction of the Chief
of the Guardia Nacional and always under
the control and command of the President of the
Republic. |
[Page 663]
| V |
V |
| Other offenses committed by members of the Guardia
Nacional de Nicaragua shall be investigated by officers of
the Guardia Nacional as directed by the Chief of the Guardia
Nacional. If it should appear upon investigation that an
offense has been committed, the offender will be turned over
to the Civil authorities. |
Infractions not included in the
preceding article which constitute civil crimes or
offenses, committed by members of the Guardia Nacional
shall be investigated and tried by the judicial
authorities of the country. |
| VIII |
VIII |
| The Guardia Nacional [de Nicaragua] shall be under the
control of the President of Nicaragua and all orders from
him pertaining to the Guardia Nacional shall be delivered to
the Chief thereof . . . . . . . |
The Guardia Nacional [de Nicaragua] shall be under the
control of the President of Nicaragua, who will himself, or through the proper channels, issue
all orders pertaining to the Guardia Nacional to the Chief
thereof . . . . . . . |
| XII |
XII |
. . . . . . .
All American officers serving with the
Guardia Nacional of Nicaragua shall be appointed from
personnel of the United States Navy and Marine Corps by the
President of Nicaragua . . . . . . . |
. . . . . . .
All American officers serving with the
Guardia Nacional de Nicaragua must speak
Spanish and shall be appointed from personnel of
the United States Navy and Marine Corps by the President of
Nicaragua . . . . . . . |
The Legation has heretofore informally advised the Government of
Nicaragua that changes in the Agreement of 1927 should receive the
concurrence of the Government of the United States in order to
become effective. The Government of the United States has found
itself unable to concur in the amendments transcribed above and has
commented upon them as follows:
- Article I. The proposed change in the penultimate
paragraph if put into effect would apparently compel the
reduction of the Guardia to a strength which has been shown
by experience to be inadequate for the fulfillment of its
mission. The Department of State would have
[Page 664]
no objection to a definite
provision regarding the number of officers and men and the
amount of money to be appropriated, with a further provision
that increases must be approved by Congress, but if Article
I is to be amended in this manner it must obviously
authorize a sufficient force and a sufficient appropriation
to cover the actual minimum needs of the Guardia at the
present time. The best information now available would
indicate that the Guardia under present conditions requires
an annual appropriation of approximately $1,000,000. The
Government of the United States is gratified to know that
this amount is still being made available. It would seem
advisable that a further study of this matter should be made
in the near future by the Nicaraguan Government and the
Legation in consultation with the Chief of the Guardia in
order that both Governments may be more fully informed
regarding the present needs of the organization, and in
order that arrangements may be made to provide for its
financial requirements in a satisfactory and permanent
manner.
- Article II. The Government of the United States cannot
consent to a provision which might be interpreted to require
subordinate officers of the Guardia to take orders from
local Nicaraguan officials. Such an arrangement would
prevent any unity of command or policy in the organization.
Furthermore, because of the inevitable differences in points
of view, it might lead at times to situations where local
Guardia officers might be called upon to take action which
they considered inconsistent with the non-partisanship and
exact justice which must characterize the conduct of the
organization if American officers are to be connected with
it. Friction and loss of efficiency would necessarily
result. The Department of State feels that this difficulty
can only be avoided and that the prestige of the Guardia as
an organization can only be maintained if the force is
subject solely to the direct command of the President of the
Republic, acting in his own name.
- Article III. The amendment to this article apparently
contemplates an increased supervision by the President of
the Republic over matters pertaining to the internal
organization of the Guardia. While the Government of the
United States of course desires that the policy pursued by
the Chief of the Guardia in the direction of the
organization should always be satisfactory to the President
it does not feel that the aims of the organization can be
best attained unless the Chief of the Guardia is given full
authority and responsibility over matters such as
recruiting, training and discipline. The nonpartisanship of
the new force cannot otherwise be maintained. The Department
of State has no doubt that President Moncada would always
uphold the Chief of the Guardia in maintaining the best
standards in its internal organization, but it wishes to
point out that a situation might easily arise at some time
in the future and under
[Page 665]
another administration when it would
be of the utmost importance for the Chief of the Guardia to
have the necessary authority with respect to its internal
administration to maintain it on the high plane contemplated
by the Tipitapa Agreement.25
- Article V. Nicaraguan members of the Guardia who commit
ordinary offenses will of course be subject to prosecution
in the local courts, and there will be no disposition on the
part of their American officers to shield them or to hinder
a thorough investigation of their actions. The efficiency
and morale of the Guardia might, however, be gravely
affected if the Nicaraguan members of the organization were
exposed to prosecution by local judicial authorities for
acts performed in the line of duty, or in extreme cases to
judicial persecution for political or personal reasons. The
Government of the United States would not wish to conclude
an agreement under which its officers might be placed in a
position where their subordinates might be subjected to
prosecution for acts committed in good faith under their
orders. The Department of State feels that the original
wording of Article V amply safeguards the rights of all
concerned in this respect.
- Article VIII. The proposed amendment to this Article is
unacceptable for the same reason as the proposed amendment
to Article II.
- Article XII. The amendment to this Article if interpreted
to mean that all officers must speak Spanish at the time of
their detail to the Guardia would be very difficult of
enforcement. Every effort will be made to detail
Spanish-speaking officers to the Guardia and to require
those who do not already speak that language to learn it,
but it would be inadvisable to restrict the selection of
officers to the relatively small number of members of the
Navy and Marine Corps who now possess this
qualification.
The Government of the United States desires as far as possible to
meet the wishes of General Moncada and the Congress of Nicaragua
with respect to the Guardia Agreement, and has no desire to insist
upon its own point of view with respect to unessential details. It
has, however, found itself unable to accept certain of the changes
proposed by the Congress of Nicaragua because it can not take the
responsibility of lending officers of its armed forces for the
organization of the Guardia unless it feels certain that the outcome
will not reflect discredit on them and that they will never be
placed by the operation of the Agreement in a situation inconsistent
with their position as officers of the United States. The Government
of the United States considers it especially necessary that the
Agreement, while making the
[Page 666]
Guardia Nacional subject of course to the command of the
President of Nicaragua, should give the Chief of the Guardia a
sufficient measure of control over such matters as recruiting,
internal organization and discipline to enable him to maintain the
strict non-partisanship which under the terms of the Tipitapa
Agreement must be its essential characteristic.
The Government of the United States considers the existing situation
highly unsatisfactory and would not desire it to continue
indefinitely, although because of its deep interest in assisting
President Moncada to maintain peace and order it has continued
temporarily to cooperate with the Nicaraguan Government on the
existing basis. The Department of State now desires if possible to
clear up the situation regarding the Agreement. While a
reconsideration by the Nicaraguan Congress of the proposed
amendments would, in the opinion of the Department of State, be the
most satisfactory method of reaching an accord, the Department of
State feels that many if not all of the objections to the amendments
as outlined herein might adequately be dealt with by an exchange of
notes between the two Governments if President Moncada considers it
preferable to arrive at the necessary understanding in this manner.
Accordingly the Legation transmits herewith drafts of notes to be
exchanged which embody the views of the Department of State as to
the points which should be covered.
The Legation, as President Moncada is aware, has recently received
instructions to discuss with the Nicaraguan Government this subject
and a number of other matters affecting the status of the Guardia,
with the special view of decreasing in every practicable way the
financial burden of the Guardia.
In the opinion of the Legation, the discussion should logically begin
with the subject covered by this memorandum and a firm basis be thus
established for the arrangement of the other matters involved. It is
the Legation’s intention, therefore, to take up the other matters in
detail as soon as the matter of the Agreement can be disposed of in
some mutually satisfactory manner.
[Subenclosure 1]
Draft of a Proposed Note To Be Presented to the
American Minister by the Nicaraguan Government
With reference to this Ministry’s note No. 82 of March 8, 1929,
transmitting a certified copy of the Agreement for the creation and
establishment of the National Guard embodying the amendments to this
Agreement which were proposed by the Congress of Nicaragua and
approved by the President of the Republic, I have the honor to set
forth in this note, for the information of the Government of the
United States in considering whether these proposed amendments are
[Page 667]
acceptable to it, the
intent of the amended provisions and the procedure which will be
followed in carrying them out.
My Government does not interpret the penultimate paragraph of Article
I of the Agreement as prohibiting the Executive Power of Nicaragua
from making such further provision for the needs of the Guardia as
may be necessary, utilizing for this purpose funds taken from the
surplus revenues or other sources. It is understood that the amount
necessary for the efficient maintenance of the Guardia will be the
subject of study by the two Governments, and that pending a further
agreement between them regarding this amount the Nicaraguan
Government will continue to allot funds to the Chief of the Guardia
for the use of that organization at the rate of five hundred
thousand cordobas during a period of six months.
Articles II and VIII of the Agreement have been amended to provide
that the President may issue his orders to the Guardia through the
proper channels (organos correspondientes).
It is the understanding of my Government that this provision refers
to orders issued by the President through the Ministers of
Gobernacion and Hacienda, and furthermore it is understood by my
Government that all orders for the Guardia will be issued only
through the Chief of the Guardia.
With regard to Article III it is understood by my Government that the
words “control y comando” refer to the general authority of the
President of the Republic, who will issue orders in general terms as
to the policy to be followed. The Chief of the Guardia, however,
will have full authority and full responsibility with regard to the
details of its internal administration, including matters relating
to recruiting, appointment, instruction, training, promotion,
examination, discipline, operation of troops, clothing, rations,
arms and equipment, and quarters and administration.
In executing Article V the following procedure will be followed:
If a Nicaraguan member of the Guardia is charged with an offense
covered by that Article the judicial authorities before whom the
charge is made shall inform the Commanding Officer of the Guardia in
that district. The latter, after investigating and ascertaining that
there is evidence that an offense has been committed which is not
within the competence of the Guardia tribunals established under
Article VI, shall deliver the accused to the judicial
authorities.
Article XII is not interpreted by my Government to mean that officers
of the Guardia must speak Spanish at the time of their detail to
that organization.
I avail myself [etc.]
[Page 668]
[Subenclosure 2]
Draft of a Proposed Note To Be Presented to the
Nicaraguan Government by the American Minister
I have the honor to acknowledge the receipt of the note of . . . . .
. . with which Your Excellency transmitted a certified copy of the
Agreement for the creation and establishment of the National Guard
embodying the amendments to this Agreement which were proposed by
the Congress of Nicaragua and approved by the President of the
Republic.
I have informed my Government of the text of these amendments and of
Your Excellency’s explanation of their meaning and the procedure to
be followed in executing the provisions of the Agreement as amended.
In this connection Your Excellency made the following statement:
[Here follows the main portion of the draft of a note to be presented
to the American Minister by the Nicaraguan Government, printed supra.]
In view of the above statement I have the honor to inform you that my
Government accepts the provisions of the Agreement as amended by the
Nicaraguan Government upon the understanding that these amendments
will be interpreted in accord with the understanding arrived at by
this exchange of notes.
I avail myself [etc.]
