The Ambassador in Panama (Wilson) to the Secretary of State

No. 4192

Sir: I have the honor to refer to my despatch No. 4156 of May 26, 1943, which transmitted copy of Foreign Office note No. 5253 of May 256 in reference to Senate Bill S. 1115 providing for the exercise by [Page 642] the United States of jurisdiction within the defense sites in Panamanian territory.

I have discussed this matter with the Commanding General7 who informs me that investigation discloses that the Bill, as now presented to Congress, was initiated in the Panama Canal Department8 on June 18, 1942, “and was caused by certain legal conditions that had to be handled”. In this connection General Brett has furnished me copies of two memoranda dated respectively May 26 and May 29, 1943, prepared by the Judge Advocate, Panama Canal Department.9 Copies of these memoranda are enclosed herewith.10

In thinking over this matter, certain observations occur to me which I am jotting down herewith for whatever they may be worth:

It seems to me that we are not perhaps primarily concerned with insisting upon our unilateral interpretation of the nature of the rights which we consider were obtained by the United States in Article IV of the May 18, 1942 Agreement. Rather, it seems to me, it may be primarily a matter of conciliating the rights of jurisdiction under Article IV which we consider essential to the defense of The Panama Canal, with the essential attributes of sovereignty which Panama considers were retained by Panama under Article IV.

The Judge Advocate’s memorandum of May 26 states that while it would be possible without such legislation as that contemplated in S. 1115 for criminal offenses committed by military personnel and civilian employees of the War Department and such other persons as may come within the provisions of Article of War 2 to be tried by courts-martial, there would be no forum short of a court in the United States and in some cases not even there in which civil actions which might arise from acts of military or civil personnel and their families committed on those sites could be tried. In considering this matter, the question at once arises as to the procedure followed in the case of civil actions of the nature cited which arise from acts of military or civil personnel on defense sites made available to the United States in other countries of Latin America, for instance, on the Galápagos Islands, at Salinas, in Costa Rica, Guatemala, etc., as well as in the bases in the British West Indies. I have inquired of the military authorities here regarding this point but have been informed that they have no information concerning it. Presumably, I was informed, such actions have to be taken to some court in the United States. If this is the case, it would seem that a similar procedure might well be considered as regards such actions occurring on the defense sites in the Republic of Panamá.

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I am informed that the main purpose of the military authorities in drafting the Bill was to insure that United States personnel on the defense sites have the same opportunity to have recourse to United States civil courts in the Canal Zone as have United States personnel residing within the Canal Zone. This would seem to constitute exactly the case which the Government of Panamá makes against the Bill. That Government considers that the defense sites in the Republic of Panamá can in no way be assimilated to the Canal Zone. Panamá considers that it granted the United States the temporary use of these defense sites not for the permanent and broader objectives relating to the Canal Zone, but for purposes strictly limited not only in time but in nature, ie., purposes of national defense during the present emergency. Obviously it would be more convenient for United States personnel on the defense sites to have the Canal Zone courts exercise jurisdiction over civil questions affecting them, rather than have to take their cases to some court in the United States, perhaps after the end of the war. But as against this matter of personal convenience—which seems indeed to have little relation to the essential purpose of national defense—there is, from the point of view of the Government of Panamá, a principle at stake which it regards as important inasmuch as it affects the sovereignty of the Republic.

It would seem rather that the essential purpose of the United States Government in seeking by Article IV to obtain exclusive jurisdiction in all respects over the civil and military personnel of the United States situated on the defense sites, and their families, was to insure that there would be no attempt by Panamanian authorities to assert jurisdiction over such civil and military personnel of the United States and their families, since such attempt might prejudice our defense effort in those areas. We were not primarily concerned with providing a readily accessible forum in the Canal Zone to which military or civil personnel on the defense sites could have recourse for divorce proceedings and the probate of wills.

The Judge Advocate also points out in his memorandum of May 26 that without the proposed legislation there is no forum in which a person other than a Panamanian citizen, charged with maliciously committing any crime against the safety of the military installations in any of the defense sites, may be tried if that person is not one of those subject to trial by a military tribunal. He points out for example that a national of a friendly country (other than Panamá) not an employee of our Government, who wilfully and without authority entered one of the sites and stole or destroyed defense equipment could not be tried by a military tribunal. It occurs to me that an appropriate remedy for this situation, since in any case legislation must be enacted by the United States Congress for the trial of such [Page 644] offenders, would be to empower United States military tribunals to try such offenders within the defense sites in the Republic of Panamá during the period of temporary occupation contemplated by the May 18, 1942 Agreement. Or it may be that the jurisdiction of military tribunals could be extended in this respect by order of the Secretary of War, without necessity of legislation—I am not informed on this point.

Respectfully yours,

Edwin C. Wilson
  1. Neither printed.
  2. Lt. Gen. George H. Brett.
  3. One of the overseas departments of the War Department.
  4. Col. Eugene F. Smith.
  5. Neither printed.