Foreign Relations of the United States: Diplomatic Papers, 1944, General, Volume I

Lot 52 M64

The Acting Secretary of State to Admiral William D. Leahy, Chief of Staff to the Commander in Chief of the Army and Navy⁷²

Washington, November 22, 1944.

My Dear Admiral Leahy: I refer to the Department’s letter of September 29, 1944^* which informed you that the Department perceived no objection to the statement of policy regarding the treatment of enemy consular and diplomatic property which was discussed in your letter of September 26.^† It added that the Department concurred in your informing the United States and British theater commanders of the policy stated therein.

It was the Department’s understanding of your letter of September 26 that it will rest with the supreme commander in each theater to decide in each instance whether or not he shall exercise the discretion and responsibility conferred upon him for entry and search of actual or alleged diplomatic or consular premises which may be in the custody of the neutral protecting Power. I bring this point up because of the possibility that unless exercise of this discretionary power is closely guarded the United States Government may encounter certain difficulties in respect of the protests addressed to the Japanese Government in the past regarding disrespect of American diplomatic and consular property and in respect of certain important American diplomatic and consular establishments which are still vulnerable to mistreatment by the German enemy.

I attach for your information a very short memorandum on this subject the substance of which it might be advisable to provide to theater commanders for their background guidance.⁷³

Sincerely yours,

E. R. Stettinius, Jr.

[Annex]

Memorandum Regarding Entry by Military Authorities to Diplomatic and Consular Premises of an Enemy Power

1. The Japanese military authorities have repeatedly searched American diplomatic and consular premises in the Far East. So far they have not undertaken to give any excuse for their action although we have lodged many strong protests against their action on the grounds of incompatibility with international practice. If military forces of the United States should enter and search enemy diplomatic and consular premises on an extensive basis or even once without amply proven justification other than a naked allegation of military necessity the Japanese Government would be provided, even at this late date, with an unanswerable defense against our protest.

2. The search of the German Embassy at Rome by Allied military authorities was amply justified on the basis of the proof presented and the espionage and sabotage material actually found on the premises. If the material found had been only of a long-range academic or planning value such as that found by Allied forces in the German Consulkte [sic] at Bari, an entirely different development of the incident might have been expected, including a protest from the German Government and retaliation by that Government. It is noted that the German Government by its silence has accepted the situation at Rome.

3. Many important American diplomatic and consular establishments are in areas still under the control of the German forces. The passport and visa records of those offices constitute one of the principal means with which can be combatted post-war efforts of war criminals and Nazi agents falsely to assume the identity of persons entitled to enter the Western Hemisphere. An implementation of policy which would induce German violation of these premises would imperil the safety and integrity of those important records, which are irreplaceable.

4. In view of the foregoing the grave responsibility for any decision to search consular or diplomatic premises of the enemy which have been previously entrusted to the protection of a neutral power should be borne personally by the Supreme Theater Commander, who is in the best position to evaluate the various considerations entering into such a decision.

72. Enclosure D to J.C.S. 1011/3.
73. Enclosure “B” to J.C.S. 1011/2. [Footnote in the original. Letter not printed, but see footnote 62, p. 1496.]
74. Enclosure “A” to J.C.S. 1011/2. [Footnote in the original. For text, see p. 1495.]
73. Paragraphs 1 through 3 of the memorandum were approved by the Combined Chiefs of Staff in CCS. 659/6, December 24, 1944, not printed. A note by the Combined Secretariat indicates that the recommendations were forwarded to the Supreme Commander, Allied Expeditionary Force (Eisenhower), to the Supreme Allied Commander, Mediterranean (Wilson), and to the Supreme Allied Commander, Southeast Asia (Mountbatten).