817.1051/407
The Minister in Nicaragua ( Hanna ) to the Secretary of State
[Received July 1.]
Sir: Supplementing my despatch No. 45 of May 23, 1930, concerning a draft note to clear up the situation regarding the Amendments to the Guardia Agreement, I have the honor to report that this Government has not accepted the draft.
The Minister for Foreign Affairs consulted the Supreme Court with respect to the portion of the draft relating to Articles II, III, V and VIII of the Agreement as amended by the Nicaraguan Congress and the Supreme Court’s reply is the basis of this Government’s objection to the draft. Copies and translations of the letter of the Minister for Foreign Affairs to the Supreme Court and the reply of the Court are transmitted herewith.27 The Minister for Foreign Affairs informally handed me the copies of this correspondence, and I subsequenty submitted for his consideration a revised draft for the paragraphs of the note to which the opinion of the Supreme Court refers. The revised draft is as follows:
“Articles 2 and 8 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 Gobernación and Hacienda, and furthermore it is understood by my Government that, without impairing the faculty which pertains to the President as Commander in Chief of the Guardia (sin menoscabo de la facultad que compete al Presidente como Comandante General de la Guardia), all orders for the Guardia will be issued only through the Chief of the Guardia.
With regard to Article 3 it is understood by my Government that the words “control y comando” refer to the general authority of the President of the Republic as Commander in Chief of the Guardia (como Comandante General de la Guardia). The Chief of the Guardia, however, under the direction of the President of the Republic to whom command over the Guardia pertains (bajo la dirección del Presidente de la República a quien corresponde el comando sobre la Guardia), will have full authority and full responsibility with regard to the details [Page 670] of its internal administration, instruction, training, promotion, examination, discipline, operation of troops, clothing, rations, arms and equipment, and quarters and administration. Provided that the Chief of the Guardia shall render due account in accordance with law to the Tribunal Suprema de Cuentas of the Republic.
With respect to Article 5 my Government understands that the Government of the United States agrees that Nicaraguan members of the Guardia who commit ordinary offenses (delitos ó faltas comunes) will of course be subject to prosecution in the local courts, and that there will be no disposition on the part of their American officers to shield them or to hinder a thorough investigation of their actions. My Government also understands that the Government of the United States considers, however, 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, or in extreme cases to judicial persecution for political or personal reasons, and would not wish to be party to a provision in the Guardia 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, and that the Government of the United States therefore makes the corresponding reservation with respect to this Article V as amended. My Government duly notes this objection and reservation of the Government of the United States and will gladly join it in an endeavor to agree upon a modification of this Article acceptable to both Governments for submission to the next regular session of the Nicaraguan Congress, and, pending such modification, it will strive in every proper way, consistent with due observance of Nicaraguan law and procedure, to meet this objection of the Government of the United States.”
When I handed this revised draft to Dr. Irías I told him that I had answered the principal objection in point one of the Supreme Court’s communication by making it very clear that the President of the Republic is Commander in Chief of the Guardia, a point which has never been raised or questioned by my Government. He replied that I had overlooked two other points mentioned by the Supreme Court, namely (a) that the President has authority to give orders personally and directly to any member of the Guardia and (b) that Nicaraguan Civil Officials such as Jefe Politicos may also issue orders to the Guardia in their respective localities. I replied that the power of the President to issue orders as mentioned in (a) is a natural and unquestionable faculty of his authority as Commander in Chief of the Guardia, and that it seemed to me quite unnecessary if not somewhat absurd to mention it specifically in the exchange of notes. He did not seem disposed to press this point.
With respect to the authority claimed for local Nicaraguan civil officials as stated in (b), I explained very fully what I considered would be the Department’s objections. Dr. Irías had already pointed out that, under the conditions existing in Nicaragua, it was deemed essential by the Supreme Court in its opinion that effective maintenance [Page 671] of order, the apprehension of criminals and the due enforcement of law could not be attained if the local civil officials should have to communicate with the President before orders could be issued to the Guardia in emergencies, and that for this reason the local civil officials should have the power to issue orders directly to the Guardia. I pointed out to Dr. Irías the danger involved in granting such authority to local civil officials, many of whom would subject it to serious abuse. I reminded him that there is no failure on the part of my Government and Guardia officers to understand the prime importance of friendly and effective cooperation between the local Nicaraguan officials and the Guardia officers and that I am aware that General McDougal is continually impressing the importance of this upon his officers. I expressed the opinion that this cooperation should be attained in the future as in the past through the application of administrative measures by the proper branch of the Nicaraguan Government on the one hand and the Chief of the Guardia on the other, all under the supervision of the President of the Republic, and not by any such dangerous procedure as conferring upon Nicaraguan local officials the power to issue orders to members of the Guardia. Finally, I reminded him that the fundamental idea of the Guardia is that it should be a nonpartisan organization and that giving local officials such authority over it would seriously threaten if not destroy its non-partisan character. I reminded him that I am endeavoring to arrive at a formula satisfactory to his Government and which will receive the approval of my Government, and told him that I felt sure that a formula extending such power to local Nicaraguan officials would not receive the approval of the Secretary of State.
With respect to point two in the communication from the Supreme Court, I told him I could understand that his Government might feel obliged to accept the decision of the Supreme Court to the effect that clause 2 of paragraph I of the rules and regulations of the Guardia is unconstitutional. I told him that, therefore, it seemed that it only remained for us to find a formula to avoid conflict over this point until such time as Article V of the Guardia Agreement could be resubmitted to the Nicaraguan Congress for modification in such a way as to make it acceptable to both Governments, and that I had worded the corresponding Article of the draft note in this sense.
I made it very clear to Dr. Irías that I was acting on my own initiative in submitting this modification of the draft note and it would be subject to the approval of the Department of State, and that I was not clear in my own mind as to whether such approval would be given. He said he would discuss the whole subject with the President and would be in a position to communicate with me further in a few days.
I have [etc.]
- Not printed.↩