740.00116 PW/2–2349
Memorandum by the Assistant Secretary of State for Occupied Areas (Saltzman) to the United States Representative on the Far Eastern Commission (McCoy)
Subject: Trial of Japanese War Criminals (314 Series)1
This Government prefers that the first half only of FEC 314/7 be adopted as a policy decision. You should therefore support or introduce such a suggestion should opposition develop in respect to the present paper adopted by Committee 5, with the further suggestion that the second half be dropped completely or if this is impossible that it be placed on the agenda of Committee 5 for consideration at the request of any member.
However, if the majority of the members favor adopting the paper as a whole, as recommended by Committee 5, with the dates inserted by that Committee, you should vote in favor of so doing.
If the questions submitted by the Chinese Member of Committee 5 on February 18 are referred to or presented again at the Commission level,2 you should state that your Government confirms the statements made by the U.S. Member of Committee 5 in reply thereto.
For your confidential information, it is desirable to avoid any discussion of the legal status of Eighth Army tribunals in Japan since this question may be at issue in future appeals from such courts to the Federal courts of this country and it is not wished to take any position at present before the FEC which will prejudice the position which the Departments of Justice, Army and State may agree upon later as that of the Government in arguments before the courts. For the same reason, it would be undesirable to have the other members of the FEC take a position in regard to the relation of these courts to the FEC. It was for this reason that your Government withdrew in its memorandum of February 18, 1949 the earlier suggestion made in the memorandum of January 12, 1949, that the FEC adopt a policy decision specifically applicable only to B and C trials in Japan.