362.1121/22
The Ambassador in Germany ( Dodd ) to the Secretary of State
[Received February 9.]
Sir: I have the honor to refer to the Embassy’s despatch No. 3155, of November 20, 1936, and the Department’s telegraphic instruction replying thereto, sent via London, No. 152, of December 23, 7 p.m., regarding a note from the Foreign Office dated November 5, 1936, which calls attention to certain communications addressed to German authorities by American consular officers requesting information relative to American citizens in their districts who might be in prison or under arrest, and states that as such communications do not seem suited for direct address to the supreme authority of a State they be presented through diplomatic channels. Reference is also made to the Embassy’s telegram No. 21, of January 29, 6 p.m.,96 giving the [Page 390] Department a digest of a further note from the Foreign Office dated January 22, 1937,97 in reply to the Embassy’s note of December 29, 1936,98 based on the instructions of the Department telegraphically transmitted, as noted above.
Further details in the case are as follows:
At the time the Embassy’s note was handed to the appropriate Foreign Office official, the matter was discussed at length, keeping in mind the consideration expressed on pages 4, 5 and 6 of instruction No. 696 of November 24, 1936,97 as well as the attitude of American authorities in similar cases arising in the United States.
At that time the official in question expressed the opinion, later brought out in the official reply, that the German Government did not question the right of Consular officers to discuss individual cases with any authority in their respective districts, but that questions of a general character involving matters of policy or those having some “fundamental significance” could not properly be put, he thought, by Consular officers. He did not wish to go into details on the point until the Embassy’s note had been studied, and he added that the reply which would be made might not embody the same opinion. In view of this attitude, the case was not argued, but an endeavor was made to impress him with the thought that the inquiries in question did not appear to involve any consideration whatever except a desire on the part of the Consuls to carry out their normal protection duties in accordance with their rights as specifically set forth in the Treaty.
The opinion of the Foreign Office as expressed in its last note, dated January 22, 1937, copy and translation of which are transmitted herewith, seems to call for certain observations.
In the first place, and apparently for the first time since the signing of the Treaty of 1923—and perhaps even before—a distinction is being made by the Foreign Office as regards direct communication between Consular officers and German authorities on matters involving the “discussion of individual cases” and those which may involve questions of policy having some “fundamental significance”. Such classification or distinction, especially in view of the rather broad terms of the Treaty provisions, is not entirely clear.
Second, with a view to determining, if possible, any reasonable grounds on which such an interpretation might be made, the Consular inquiries questioned were again carefully studied. It may be noted that in the case of the letter addressed by Consul General Thomson at Dresden, dated October 5, 1936, to the State Chancery of Saxony in Dresden, he requested (in translation) that “the Consulate would further very much appreciate being informed of any [Page 391] arrest or sentence of an American citizen in the future.” It is possible that exception might be taken to such a request, inasmuch as neither by Treaty provision nor under international law, comity, etc., would it appear incumbent upon the authorities of the receiving state to notify Consular representatives of the sending state of the arrest or detention of one of the latter’s citizens; the duties of the receiving state’s authorities would seem to begin only when the arrested citizen requests permission to communicate with his Consul.
“Incommunicado”, which throws the responsibility on the receiving state’s authorities, begins only when such a request is refused. If the matter is viewed in this light it might be possible to question not only the specific request mentioned but the general tenor of both of the Consular letters involved in this case, and they therefore could be regarded as inappropriately endeavoring to place a responsibility and a duty upon German authorities. In other words, if the Consul does not have direct knowledge of any and all citizens under arrest in his district it might be presumed that it is because certain of the arrested individuals have not requested that he be informed. This might at least be the theory of such a line of reasoning, and such a theory takes on material form when it is remembered that a discussion of “individual cases” is not questioned, the presumption therein being that the Consul has been informed previously.
Third, it is possible that some political consideration is being read into these Consular inquiries. The present day situation in Germany—much different from that in 1923 when the Treaty was signed—has led practically every other country to look askance at Germany’s methods of justice, and, in turn, it has developed a psychology in the average German official which leads him to look with suspicion on every inquiry touching upon those methods. The “fundamental significance” may therefore involve, in the opinion of the Germans, matters such as a desire to check up on concentration camps, isolation, lack of faith in German penal systems, and, in general, an unnecessary prying into the activities of the German secret police.
In an endeavor to obtain as much light as possible on all angles to the question, the Embassy has consulted several diplomatic colleagues in connection with the “opinion” of the Foreign Office. It appears that as far as the British Embassy is aware, none of their Consular officers had addressed provincial authorities with protection questions except in individual cases. The British Service does not operate on treaty arrangements. On the other hand, a treaty of Consular Rights exists between Germany and France, according to which, apparently, a distinction is made between purely civil and criminal cases under the heading of “état civil” and cases involving political considerations. A French Consular officer recently inquired into an [Page 392] individual case which the German authorities seemed to consider as having political angles, and the inquiry was promptly referred to the Foreign Office which, in turn, took it up with the French mission. After this case was submitted to Paris, the Embassy itself was instructed to approach the German Foreign Office informally for whatever data was needed. According to this information our treaty stipulations relative to Consular Rights are textually stronger than those of the French, but the matter is mentioned for whatever assistance it may be in judging as to the merits of the case in hand.
It is true that the German-American treaty does not specify that consular communications with the authorities mentioned “for the purpose of protecting their countrymen” shall be limited in any manner whatsoever. Furthermore, if the German Government desires to take upon itself the prerogative of deciding in a given instance upon the method and manner of procedure thereof, then the German Government might be considered as assuming to determine how American officials should carry out their duties in this regard. Nevertheless, it is possible that the mere fact that the prerogative is not more closely defined, the stipulation could be interpreted to apply only to specific or “individual cases”, and that questions wherein general information is desired, for example, for the United States Government (see Consul Benton’s letter), could be considered only when taken up through diplomatic channels.
This matter has been dwelt upon in some detail, not only because it is considered important, but with a view to assisting the Department as far as possible in determining the attitude it may adopt in the future.
Any instructions deemed necessary as a result of information herein contained will be awaited with interest and will, of course, be closely followed.1
Respectfully yours,