Foreign Relations of the United States, 1964–1968, Volume XXXIV, Energy Diplomacy and Global Issues

309. Action Memorandum From the Assistant Secretary of State for Inter-American Affairs (Oliver) to Secretary of State Rusk¹

Washington, December 6, 1968.

SUBJECT

• Hijacking of Aircraft to Cuba

Summary

Until now efforts to obtain Cuban cooperation in deterring the hijacking of aircraft have been confined to third-party initiatives because it was considered that these represented the best hope of success. However, with the failure of these initiatives thus far, and the alarming increase in frequency of hijackings, we now request authorization to approach the Cubans bilaterally through the Swiss, proposing an arrangement for return of hijackers. If we do so we must be prepared to offer reciprocity by returning to Cuba hijackers of Cuban commercial planes even though they ask for political asylum.

Discussion

Attached is a note which proposes that the Cuban Government return hijackers of commercial aircraft,² and offers to discuss arrangements for the return of hijackers on a reciprocal basis if so desired by the Cuban Government. If you agree, we shall transmit this note to the GOC through the Swiss as soon as possible.

Until now, we have confined our efforts to obtain Cuban cooperation in the return of hijackers to third-party initiatives such as that undertaken by Knute Hammarskjold, Director General of the International Air Transport Association (IATA). Prospects of a favorable Cuban response are dim, and it had been our belief that a direct approach by the USG would be even less likely to succeed. Therefore we planned to exhaust other channels such as the Mexican Government and ICAO before approaching Castro directly. At this point, however, Hammarskjold’s efforts have been rebuffed and hijackings are increasing at an alarming rate. Public and Congressional pressure for action is intense and we believe we should act promptly to test the remote possibility that Castro would respond to a direct approach. It is often asked whether we have approached Castro directly, and we wish to be in a position to respond affirmatively in the near future. Therefore, we propose to supplement our efforts to obtain Cuba’s cooperation through third parties, or in a multilateral context, with a direct approach.

Until we get a response from the Cubans, we cannot predict what kind of solution may be negotiated. What we would like to see, however, is a Cuban undertaking to return hijackers. Our draft note specifically contemplates reciprocity, as did Hammarskjold’s proposals to Cuba, because we cannot conceive of Castro’s accepting less. The draft Protocol to the Tokyo Convention concerning the return of hijackers which, with your approval, we raised informally at the ICAO Assembly last August was premised on the assumption that the United States would be prepared to reciprocate the return of hijackers even when the hijacker claimed that he had committed the hijacking to escape political persecution. As explained in the previous memorandum,³ it has been U.S. practice to decline extradition of political refugees for stealing the means of escape. However, we have concluded that this practice should not be applied to hijackers of airliners because of the disproportionate hazard. We continue to believe that the serious dangers to air safety caused by the hijacking of commercial aircraft outweigh the hijacker’s interest in securing political asylum, and our discussions on the Hill have not revealed opposition to this judgment.

It is our hope to limit any understanding to commercial aircraft, thus reducing the possibility of a problem arising with respect to a refugee fleeing Cuba, but Castro might seek a broader agreement. We do not plan to cover boats or military aircraft or to include theft of commercial aircraft not involving coercion of the pilot.

If the Cuban Government should respond favorably to this proposal, it is conceivable that it might lead to a Cuban request for face-to-face negotiations between U.S. and Cuban representatives rather than through the intermediary of the Swiss or other third-country representatives. We believe we must be prepared to accept this if necessary in the interest of solving so important a problem.

As extradition raises serious legal and political problems, we would expect to implement our side of the agreement, in most cases, by refusing to admit a non-U.S. citizen hijacker of a Cuban aircraft into the United States and deporting the alien so excluded to Cuba. If necessary to satisfy our laws, we would attempt to do so via the country whence he came to the U.S. This procedure would represent a departure from our normal immigration policy toward Cuba and INS has advised us that they would be reluctant to take such action without the consent of the Attorney General.⁴

At his request we have agreed to meet with Knute Hammarskjold, Director General of IATA, on Monday, December 9, to hear his views as to the effect of our proposals on his initiatives with the Cubans. We would not despatch the attached note until we have had a chance to talk to Mr. Hammarskjold. If he provides us with compelling reasons not to pursue a bilateral course now we could, of course, refrain from sending a note at this time, but we do not now believe that this will be the case or that there is any overriding reason to delay a bilateral approach. We would in any case like your approval to move as recommended so that we can proceed immediately⁵ if after our discussion with Mr. Hammarskjold this continues to appear desirable.

Recommendations:

1. That you authorize me to dispatch to the Cuban Government a note on the lines of the note attached.⁶

2. That you telephone the Attorney General to request his agreement in principle that the U.S. would reciprocate by deporting to Cuba an alien who hijacks a Cuban aircraft to the United States. You should tell him that we will try to limit the arrangement to hijackers of commercial aircraft but cannot guarantee such a limitation.⁷

1. Source: Department of State,ARA Files: Lot 74 D 467, Covey T. Oliver, December 1968. Confidential. Drafted by Feldman (L/ARA) and Fitzgerald (ARA/CCA); cleared by Murray Belman (L), Malmborg (L/SCA), Loy, Feldman (L/ARA), Vaky (ARA), and Fitzgerald (ARA/CCA). A copy was sent to the Under Secretary.
2. Not printed.
3. Not further identified.
4. The following week, Assistant Attorney General Fred Vinson confirmed that the Attorney General “agrees in principle with the Secretary of State’s decision to seek a reciprocal agreement with the Cuban government in connection with the return or prosecution of those who hijack aircraft.” Vinson wrote that the Attorney General suggested that strong efforts be made to limit the agreement to commercial aircraft since problems existed with regard to expulsion or deportation of possible political refugees under immigration laws. (Letter from Vinson to Feldman, December 11; National Archives and Records Administration, RG 59, Records of the Department of State, Central Files, 1967–69, AV 12)
5. See Document 311.
6. Although Rusk approved the recommendation, no initialed copy of this memorandum was found.
7. No record of Rusk’s action on this recommendation was found.