862.85/2092

Memorandum of Conversation, by the Assistant Secretary of State (Long)

Yesterday in a conversation with the Secretary I discussed the subject of sabotage and proceedings pending in the Courts. The Secretary felt that the imposition of penalties which would be comparable to the limit directed by law of either fines or imprisonments might be used in Europe as a cause for retaliation against any Americans living in Germany or Italy in case our relations should suddenly change. The Secretary instructed me to discuss the matter with the Attorney General.

Later in the afternoon I did discuss the matter with the Attorney General and he felt it would be difficult to have a uniform practice in the matter. He did not know just how it could be approached. The judges were of different psychological and temperamental composition and each reacted differently. He had reason to believe that some of them felt rather definitely that examples ought to be made of some of these men; the judges probably reflected the sentiment in their respective areas. Nevertheless, he said he would consider the matter with the idea of determining what, if anything, might be done.

This morning the Attorney General called me and said that the first case had now arisen over a conviction in the United States of Italians accused of sabotage. He wanted to know how far he should go in carrying out the Secretary’s ideas. I told him that this Department considered it was a matter for the Department of Justice and that the Secretary could not write a letter, but he hoped that the Attorney General would be able informally to present the matter to the attention of the judges through the respective District Attorneys. The Attorney General then wondered if a sentence of one year would be considered too high. I replied in the negative and placed the whole conversation on the basis that the individuals actually committing sabotage were not themselves directly responsible for it; that they were carrying out the orders of their superiors; that it was impossible to punish the persons who were directly responsible; and that a drastic punishment of persons under those circumstances would incite those governments to take retaliatory action against some of our citizens in certain cases.

The Attorney General agreed that fines should not generally be imposed because the men were not able to pay fines and he thought if a sentence of one year, or a year and a half, were imposed that the men would still be in our jurisdiction and at the termination of their sentences they could be interned in places which could be constructed [Page 472]in the meantime and which would be appropriate for their confinement. He aptly characterized the situation in which the men found themselves by saying that they were confronted with the choice of sabotage or mutiny and that they probably had constructively chosen the former as they were under orders of their superior officers.

The conversation ended with the understanding that the Attorney General would send a telegram in carefully chosen phraseology to each District Attorney in the districts where these cases were pending with the idea that they would present the matter informally to the judges presiding, with the hope that the judges would react to the informal intimations of policy, but he said there could be no assurance that each of the judges would accept the intimation.

B[reckinridge] L[ong]