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

No. 2626

Sir: The Department refers to your despatch no. 4156 of May 26, 1943 enclosing a note, no. 5253 dated May 25, 1943,11 from the Ministry of Foreign Affairs with relation to S. 1115, a bill to provide for the exercise by the United States of certain jurisdiction over persons within areas in the Republic of Panama, the temporary use of which for defense purposes is granted to the United States.

The note states that the Government of Panama considers that the exercise by civil courts of the Canal Zone of jurisdiction in the areas covered by the Defense Sites Agreement is not in accordance with the text and spirit of Article IV of the Agreement and that the extension to the defense sites of legislation of a general character applicable to civilian communities in which the United States acts as territorial sovereign is incompatible with the retention by Panama of sovereignty over the defense sites as provided for in Article IV of the Agreement. You state that it is the desire of the Government of Panama to avoid the creation or the appearance of the creation of any “little Canal Zones” in Panamanian territory or the extension to territory under the jurisdiction of Panamá of the Canal Zone regime. The Ministry of Foreign Affairs apparently considers that the jurisdiction granted to the United States by Article IV of the Defense Sites Agreement should be exercised by its military tribunals.

The questions raised have been discussed with the War Department at whose instance S. 1115 and its companion bill, H.R. 2822, were introduced. The War Department has indicated its willingness to amend the proposed legislation in such a way as to make it clear that the United States is not endeavoring to create “little Canal Zones” on Panamanian territory but is simply enacting the minimum legislation necessary in order to be able to exercise the right granted by Article IV “to arrest, try and punish all persons who, in such areas, maliciously commit any crime against the safety of the military installations [Page 645] therein”. Courts-martial of the United States exercise jurisdiction only over members of the armed forces of the United States and civilians connected with such forces. It would thus be impossible at present for such courts to punish offenses against the safety of military installations in the defense sites if committed by other persons. It is not considered desirable to attempt to amend the Articles of War to extend the jurisdiction of courts-martial to punish civilians generally even for offenses of the nature indicated. In order therefore to punish persons over whom courts-martial have at present no jurisdiction and who commit offenses against the safety of military installations in the defense sites it is necessary to extend American law to offenses committed in such areas. It is also necessary to give to the nearest United States court jurisdiction of such offenses in much the same way that jurisdiction to punish crimes committed on the high seas rest in the district court of the United States of the first district into which the offender is brought. In this connection it is pointed out that there is nothing in Article IV which requires the “exclusive jurisdiction” conferred on the United States to be exercised in any particular way or by any particular type of tribunal.

The amendments to S. 1115 and its companion bill which the War Department is prepared to make out of deference to Panama are as follows:

Limitation of the term of the legislation to the term of the Defense Sites Agreement. Add a new section, as follows:

“Sec. 5. The provisions of this Act shall terminate one year after the date on which the definitive treaty of peace which brings about the end of the present war shall have entered into effect; Provided that this limitation shall not be construed to divest any court of jurisdiction over proceedings begun prior to that date.”

The effective date of termination is expressed in the precise language of Article I of the Agreement.
Eliminate the exercise of civil jurisdiction. While the War Department is of the opinion that Article IV is broad enough to include a grant of civil jurisdiction in controversies between Americans in the defense areas, such jurisdiction is not considered essential to the protection of the areas in question, and consequently, in view of the Panamanian objection, may safely be eliminated from the pending bills. The following changes are necessary to effectuate this amendment:
Delete section 1 (a) of the bill.
Amend section 1 (b) to read:

“(a) Over all criminal proceedings wherein a member or members of the class which includes the civil and military personnel of the United States and their families situated in the areas of land and water covered by the agreement are defendants; and”

Renumber section 1 (c) as section 1(b).
Amend the first two lines of section 2 (lines 12 and 13 of page 3 of the bill) to read as follows:

“Sec. 2, The jurisdiction conferred by section 1 of this Act shall, in all criminal proceedings,”

Recognize Panamanian sovereignty in terms. Add a new section as follows:

“Sec. 6. Nothing herein contained shall be deemed in any way to infringe the sovereignty of Panama in the areas of land and water covered by the agreement, which sovereignty is expressly recognized in Article IV of the agreement.”

Provide expressly that the Canal Zone courts are not to sit outside the Canal Zone. The War Department is of opinion that the fair intendment of section 3 of the bill is that offenders shall be brought into the Canal Zone for trial, rather than that the Canal Zone courts shall repair to the defense areas. Consequently, it has no objection to a proviso which shall clarify this point. To effectuate this change, the following should be added at the end of section 3:

Provided, that nothing in this Act shall be construed to authorize either the district court or the several magistrates’ courts to sit outside the limits of the Canal Zone,”

Change the title of the Act. In order to make it abundantly clear that the only purpose of the legislation is to implement the Agreement, and not to extend the limits of the Canal Zone, the War Department is prepared to agree to amend the title of the bill so as to read “A Bill to implement Article IV of a certain agreement concluded oil May 18, 1942, between the Government of Panamá and the Government of the United States of America.”

The Department feels that the amendment of the bills in the manner indicated should allay any apprehension of the Panamanian Government that it is the intention or desire of the United States to extend the Canal Zone regime in any manner to the areas covered by the Defense Sites Agreement. It is necessary in order to protect the military installations in such sites that the United States be able to exercise the jurisdiction granted to it by Article IV of the Agreement which it is observed from your telegram no. 274 of May 26, 1943 the Acting Minister for Foreign Affairs has assured you the Panamanian Government has “not the slightest intention of contesting or calling into question”.

The bills referred to above are before the Judiciary Committees of both Houses of Congress and while the Department can give no assurance that action will not be taken thereon it will endeavor to have such action deferred until you have had an opportunity to discuss the matter with the Ministry for Foreign Affairs in the sense indicated [Page 647] above. If the solution suggested is acceptable to the Ministry you will please inform the Department by telegraph in order that legislation which will permit this Government to punish offenses against military installations in the defense sites may be provided as expeditiously as possible.

Very truly yours,

For the Secretary of State:
Sumner Welles
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