295. Memorandum From the Assistant Secretary of Defense for International Security Affairs (Warnke) to the Deputy Secretary of Defense (Nitze)1
SUBJECT
- Legal and Tactical Considerations in Pueblo Case
I am increasingly concerned about the American stance in the Pueblo situation. The position expressed at the Panmunjom closed meetings is basically the reiteration of the fact that we have no convincing proof that the Pueblo came within the 12 mile limit claimed by the North Korean Government, that we will not be in a position to determine this question until the crew is returned to us or to neutral third party custody, that we will investigate the charges promptly upon such return [Page 659] and, if the North Korean claim appears justified, will express appropriate regret.
This position appears to concede that we must respect the 12 mile limit and that, on its own definition of the territorial sea, the contiguous state may seize naval vessels of another power that venture within it and intern the crews.
Up to this point in history, our legal position has been that we do not recognize a territorial sea more than 3 miles from any shore and that instructions to our vessels to remain further off shore are an exercise of discretion rather than a legal necessity. Moreover, we have maintained that, under international law, the only right of the contiguous state is demand that the intruding vessel leave the territorial waters.
The closest approach to its shores claimed by North Korea is about 7.6 nautical miles. The purported confessions of the Commanding Officer and crew admit such “intrusion” and implicitly assume that this is a violation of legitimate territorial sea claims. Our reaction has not emphasized that, under our construction of international law, our vessels are on the high seas when outside the 3 mile limit, that all American naval personnel are aware of this US position, and that the North Korean action was illegal even on their statement of the facts.
As a legal proposition, therefore, we should not be asserting our willingness to express regrets if subsequent investigation shows that the North Korean claims are correct and the “confessions” are bona fide. Under our legal interpretation, no claim of the North Koreans, even if accurate, could lead to an admission that we have violated the territorial waters of North Korea. And, as noted above, even if our ship had been within 3 miles, international law would not justify the seizure of our crew and ship and the killing of an American serviceman.
It thus appears to me that we have already given away our legal position on the Pueblo seizure. We have indicated a willingness to apologize if the Pueblo ventured between the 3 mile limit we recognize and the 12 mile limit claimed by the North Koreans. We have indicated this willingness despite the fact that the North Korean seizure of an American warship and its crew, occasioning the death of one crew member and the wounding of three others, is certainly a far more serious offense than any intrusion for non-violent purposes, within even the three mile limit we recognize. The implicit assumption is that the Pueblo’s activities would warrant violent response if conducted in territorial waters.
We therefore are sticking on only the relatively minor factual issue: Did the Pueblo, in violation of orders, come closer than 12 but further than 3 miles from North Korean territory? Perhaps we should now rely on the letter to the President from the Pueblo crew and try and [Page 660] devise a statement that might satisfy the North Korean demands and effect their return.
Any such statement should, in my opinion, be predicated not on our legal obligations—since even the facts as claimed by the North Koreans would involve no violation of international law as we interpret it. It would instead have to be predicated on the fact that the purported confessions show a failure to abide by orders. It is obviously illogical to apologize to North Korea solely because US naval personnel have failed to obey US naval orders, but we are already in this anomalous and ignoble position. To get out of it, and to get our men back, it might be better to go the rest of the way.
A possible semantic formula might be for Admiral Smith to prepare a letter noting that President Johnson has received the letter that appears to be signed by the Pueblo crew; without mention of the North Korean claim of a 12 mile territorial sea, the United States has instructed its naval vessels to remain more than 12 miles from North Korean territory; the statements contained in the crew’s letter show a failure on their part to obey orders; and the United States expresses its regrets at the violations described in the letter and repeats its intention to continue to order its ships to remain more than 12 miles from North Korean territory. This could be shown to General Pak at Panmunjom and he could be told it will be given to him concurrently with the return of the crew. No mention would be made of the ship.
Admittedly, this concession might involve some loss of prestige. But in my view, we have already capitulated on the major legal points involved and conceding the factual question on the basis of the crew’s letter would be preferable to protracted maintenance of a demeaning stance.
Our capitulation then would turn solely on the statement of facts allegedly signed by the Pueblo crew. It would not imply that the Pueblo’s mission was illicit. Establishment of the falsity of the statement would enable us to retract our apology. As you know, the Navy analysis indicates that the North Korean asserted intrusions could not possibly have been accomplished by a vessel of the Pueblo’s speed. This evidence would be made public after the crew is returned. In addition, we would presumably have from the crew other evidence that their “confessions” were contrived or extorted. Our expressed regrets would then be withdrawn, because based on North Korean fraud. As things now stand, world opinion is probably that we’ve been caught in tawdry behavior. Exposure of North Korean lies would give us support we now lack.
It must be anticipated that adoption of this course of action would provoke strong adverse reactions from the South Koreans. If, however, it led to prompt return of the crew, and prompt withdrawal of our [Page 661] apology, it might well be better for US/ROK relations than the continuation of the present futile closed meetings. A draft letter is attached.
- Source: Washington National Records Center, RG 330, OSD/OASD/ISA Files: FRC 73 A 1250, Korea 385.3. Confidential. A stamped notation on the memorandum indicates that Nitze saw it.↩