500.C1197/727: Telegram
The Secretary of State to the Consul at Geneva (Gilbert)
43. For Fuller. Your 87, May 20, 2 p.m. You will recall that discussion of the constitutionality of the proposed legislation was deliberately avoided in Department’s reply to League of Nations’ inquiry. Department is not disposed to contend that proposed legislation would contravene the Sixth Amendment of the Constitution, but the Department is not aware of any judicial determination of the question and prefers to avoid expressing any definite opinion thereon.
The Department considers that as between the United States and European or Asiatic countries, for example, the proposed plan would not be practicable. If prosecutions were to be undertaken in the United States, it would be necessary to bring all material witnesses from foreign countries to testify before the Grand Jury and to keep them here or have them return at a later date for the trial, the period of time varying in length according to the condition of the court’s docket and the ability of the defendant by technical pleas to defer a hearing. It would seem to be obvious that few persons, if any, would voluntarily submit to the personal sacrifice, inconvenience and possible loss of business interests which would be involved in this situation. Accordingly, the attendance of such witnesses could be effected only through compulsory process and it may be doubted whether such process could legally be made effective so as to compel private persons in foreign countries to proceed to this country. Even if it be assumed that some foreign countries could and would enforce attendance of such witnesses, the Department considers that it would be unfair and unreasonable to make such a request and it is extremely doubtful if Congress would sanction it. Moreover, there is grave doubt whether an American citizen could legally be compelled to go to a foreign country as a witness and it is practically certain that Congress would not authorize such compulsion.
In addition to the very serious objections set forth above, the enforcement of the proposed legislation would be enormously expensive and it may be doubted whether the possible advantages of the proposal are sufficiently important to outweigh its manifest disadvantages.
You are authorized to communicate to the Committee the substance of the foregoing except the first paragraph.