893.20 Mission/5–146: Telegram
The Acting Secretary of State to the Embassy in China
61. For General Marshall. Cite 538.44
The draft Military Advisory Group agreement transmitted to General Gillem by memorandum of Mar. 1845 has been considerably revised as a result of discussions here, particularly in the light of conversation Mr. Vincent had with you, Colonel Davis, Colonel Carter and Mr. Penfield.
If complete jurisdiction, both criminal and civil, over American personnel (including their families) were to be retained by the United States the question would then arise as to what U. S. legal authority would exercise jurisdiction over dependents. I should like to point [Page 829] out also that jurisdiction over our consular personnel and their families and all other Americans who do not enjoy diplomatic status rests with the Chinese Government. I do not see how the United States can propose to the Chinese that they relinquish jurisdiction over the members of the families of Group personnel when the United States itself is unable to assume jurisdictional responsibility in such cases.
I realize the seriousness of possible repercussions in the event that at some future date American civilians, dependent or otherwise, connected with the Group are subjected to some of the procedures now existing in Chinese judicial and penal institutions, but this is a situation faced by all Americans and other foreign nationals in China who do not have diplomatic immunity. State Department fully appreciates this problem and may be expected to intercede through diplomatic channels to mitigate undesirable effects of exercise of Chinese jurisdiction in all practicable ways in cases that are brought to its attention.
It is assumed here that the United States will be responsible to the Chinese Government for those acts or omissions which are determined to have occurred in the course of official duties. Under this interpretation the Chairman of the Group should be the final authority as to whether a civil case involving personnel of the Group (as differentiated from families) should be handled by United States or Chinese courts. I concur that reference to administrative courts should be included in the agreement.
The proposed article covering this matter, as amended in accordance with my views above, would read as follows:
“Article 21. The service courts and authorities of the Government of the United States of America shall have the right to exercise exclusive jurisdiction over all offenses which members of the Group may commit in China. If any cases arise in which the service authorities of the Government of the United States of America prefer not to exercise such jurisdiction, a written statement to that effect shall be sent to the Chinese Government through diplomatic channels after which the Chinese authorities shall be free to exercise jurisdiction.
“No member of the Group shall be subject to the jurisdiction of Chinese civil or administrative courts with respect to any act or omission which, as determined by the Chairman of the Group, occurred in the course of his official duties.”
I believe that the foregoing is in the form that should be proposed by the United States, and in accordance with the conversations conducted during your recent visit to Washington. Please let me know if, in light of my above comments, you concur in the reworded article.46