[(A) The Case for Accepting:]
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2. The essential criteria on which the Government's internment policy depends are well known, viz. (a) Airmen are interned when they land on Irish territory during operational flights, (b) they are released when they land during non-operational flights, (c) Allied airmen are presumed to be on non-operational flights unless the contrary is proved by us and (d) German airmen are presumed to be on operational flights unless the contrary is proved by them.
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6. We must face the fact that since the first American plane landed in Ireland (July 1942) not a single U.S. military machine has been interned (28 landed or crashed) and the fact that since that date more than half of the forty or so British planes which landed were assisted to leave at once. In many of these cases appearances were altogether against the planes concerned but the presumption 'non-operational' won out; sometimes the issue was decided by the mere word of the interested belligerent.
This seems an absurd state of affairs which prefers 'hunches' to the rules of evidence; which fails to achieve uniformity of practice between planes of the same country and actually discriminates between Allies, both equally entitled to the full benefit of the presumption in their favour.
A premium is at present placed on prevarication: the liar who declares he was merely 'patrolling' is likely to get off and the boaster or the coward who wants to be interned have a sporting chance of remaining here for the duration. Surely, justice would be better served, and our own position made considerably easier by the adoption of a procedure which would really implement the presumption we pretend to exercise in favour of the Allies? That is, the presumption that all their planes on this side of England are non-operational until the contrary is really shown. Nothing should be capable of upsetting that presumption, as far as our authorities are concerned, except the clear evidence of their own senses. Let them see the planes in action and they may properly ignore the presumption; but they should not have to go out of their way either to rebut the presumption or reinforce it by means of hearsay or circumstantial evidence.
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[section 7] But the main thing to remember is that for the last two years the Government's internment policy has been keeping Ireland out of the war. There is no particular reason to fear that by maintaining it we will be providing Germany with a casus belli.
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[(B) The Case Against:]
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11. Two starting points were originally adopted by the Government in 1939 when they decided to maintain neutrality, viz. (1) the legal principles laid down in international Conventions together with the rules and practice of the last war recorded by recognised textbook writers, and, (2) the guarantee given by the Taoiseach that in no circumstances would this country be permitted to be used as a base for an attack upon Great Britain.
Contrary, perhaps, to anticipation, the Government soon found that lines of conduct drawn from these respective starting points tended to diverge. By dint of reviewing, adapting and freely interpreting the strict rules and the less uniform 'precedents' to hand, the Government managed to hammer out a satisfactory working policy of neutrality.
The present internment policy was moulded in this way and may now be regarded as having practically reached the point of crystallisation. Insofar as it does not rigidly comply with prewar rules of law or correspond exactly to the wartime practices of other neutrals (also forced by local circumstances to compromise) the present policy ought always to be capable of justification on the basis of the Taoiseach's guarantee to Britain.
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13. It is not suggested, of course, that the Government should or could enforce in 1944 the comprehensive decision which they announced to the belligerents so categorically five years ago. But it is submitted that any practical deviations which were and are made from the principles laid down in 1939 (presumably to preserve the guarantee to Britain) should impartially penalise or benefit the belligerents on both sides. The German Minister has protested already because we have released nearly all the British internees and have refrained from interning any Americans without making any similar concessions in regard to the German internees or German planes landing on Irish territory. This is not the time or place for defending action taken under the internment policy as it has evolved to date, but, in the light of our Aide-mémoire of 19392 and the strict legal rules, it must be clear that our defence is by no means obvious. To make further concessions might render any reasoned defence quite impossible – it might well prove to be 'the last straw.'
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[section 16] The only real precedent, therefore, which we can reasonably deduce from the conduct of the other neutrals is the general one that, by and large, the rules must be observed and the exceptions kept at a minimum. An objective survey of the internment policies of such neutrals as Sweden, Switzerland or Turkey will show that this is a fair deduction.
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[section 17] Our Government would, doubtless, be delighted to be rid of both the British and the German internees, if such a solution of Sir John Maffey's difficulty were open to them. It might be even thought a good plan to intern no further airmen of any belligerent if such a scheme were not ruled out in advance by the British. The fact is that the British are expecting more of this country than they do of any other neutral state and, in view of Partition and the recent hostile measures taken against Ireland, it is hard to see why we should meet them in what we know is a quite unprecedented demand. Certainly, the Taoiseach's guarantee to Britain and Ireland's geographical position do not seem sufficient reasons for conceding to a request which resembles, in essentials, the American Minister 's recent démarche to have the German Minister sent home, while he and Sir John Maffey stayed in Dublin. If the issue were put in that light to the people of this country, they would have no difficulty whatever in grasping its implications and making up their minds accordingly. The Government must have regard for public opinion, whatever other Governments, belligerent or neutral, do or desire to have done.
