EFFORTS TO OBTAIN AN ACCOUNTING FOR UNITED STATES MILITARY PERSONNEL MISSING AND UNACCOUNTED FOR FROM THE KOREAN HOSTILITIES

Under the Korean armistice agreement, each side agreed to repatriate or account for all prisoners of war and deceased combatants of the other side of whose fate it had any knowledge.

On September 9, 1953, the United Nations Command gave the Communist representative on the Military Armistice Commission at Panmunjom a list of 3,404 names of missing UNC personnel and demanded an accounting. The list contained names of Korean and other UNC personnel, including 944 names of United States servicemen. The UNC did not state or imply that all of the persons named on its list were necessarily still alive and in Communist hands; but there was evidence to show that the Communists at least should have knowledge of their fate.

The Department of Defense and the UNC did not limit their efforts to account for the missing men to representations through the MAC. Investigations by the UNC graves registration units, together with the information obtained from returned prisoners and other sources, made possible a finding of "missing and determined dead" for 418 of the 944 United States personnel on the list by August 1954. At that time, a revised list, containing 526 American names, was given to the Communist representatives in the MAC.

The Department of State also made efforts to obtain repatriation or an accounting, particularly for the specific military personnel we had reason to believe were being held in Communist China. These included the crew of 14 of an Air Force B-29 shot down in Korea and 4 jet pilots. At Geneva on June 10, 1954, United States Ambassador (to Prague) U. Alexis Johnson, then serving as coordinator for the United States delegation to the Geneva Conference on Korea and Indochina, gave a Chinese Communist representative a list of these fliers. The Communists admitted holding the 4 jet pilots (and also a Canadian pilot from the UNC) and 11 of the 14 crew members of the B-29. The other three, they said, had died when the plane crashed. The Department of State not only continued to press the Chinese Communists through the contact which was maintained between our respective consulates general at Geneva following the close of the Geneva Conference of 1954, but also raised the matter in the U. N., where an overwhelming majority joined in condemning the Chinese Communists for holding the fliers. The Secretary General of the U. N., Mr. Dag Hammarskjold, went to Peiping in January 1955 in an effort to bring about their release. The representatives of various free-world nations having diplomatic relations with the Chinese Communists-notably the United Kingdom and India-also made representations to Peiping on this subject, at our request. The 4 fighter pilots were released by the Chinese Communists on May 31, 1955 (the Canadian pilot had already been released). The 11 B-29 airmen were released on the eve of the opening of the ambassadorial level talks in Geneva on August 1, 1955.

Although the United States Government had no proof that the Chinese Communists were holding other American personnel of the UNC in Communist China, or, indeed, that any other of the personnel named on the UNC list were still alive, those possibilities could not be ruled out. In any case the Peiping regime, having played a major role in the Korean hostilities, clearly had a responsibility to furnish an accounting. Accordingly, Ambassador Johnson, in his talks at Geneva with the Communist Ambassador Wang Ping-nan, has repeatedly demanded an accounting, and has repeatedly made the point that until a satisfactory accounting has been presented, either at Geneva or in the MAC, the matter will continue to be an important issue between us and the Peiping regime. Wang has maintained that the issue should be dealt with in the MAC.

Meanwhile, continuing efforts of the Department of Defense and the UNC, together with the release of the airmen from Communist China, had reduced the total of United States names on the list of missing personnel to 450. On November 26, 1955, the UNC side in the MAC gave the Communist side a revised list reflecting this reduction of the number of missing, and stressed again its demand for an accounting. No satisfactory accounting has yet been received. The efforts of the Department of Defense and the UNC graves registration units to determine the fate of the missing servicemen, as well as the efforts of the UNC in the MAC, and the efforts of the Department of State, primarily through the Geneva talks, to obtain an accounting from the Communists are all continuing.

APPENDIX EXHIBIT NO. 5

PASSPORTS AND THE RIGHT TO TRAVEL: A STUDY OF ADMINISTRATIVE CONTROL OF THE CITIZEN

(By Freeman W. Sharp, American Law Division, Legislative Reference Service, Library of Congress, June 12, 1956)

TABLE OF CONTENTS

Legal background and American usage.

The Department of State and the issuance of passports.

Legislation concerning passports

The rights and liabilities of citizens.

Personal liberty in the United States-The right of locomotion.

The nature of a passport.

Duty to issue passports

Persons entitled to passports

Federal control of citizens' rights to passports.

The liberal period-pre-1914.

The nonliberal period between the world wars.

Refusal of passports-peacetime..

The war power and personal liberty

Refusal of passports during war and national emergency.

Conclusions respecting Federal control of citizens' right to a passport.

I. LEGAL BACKGROUND AND AMERICAN USAGE

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The exact origin of the use of passports has been lost in the mists of time. They are of very ancient lineage. In the Old Testament Nehemiah, then a cupbearer at the court of Artaxerxes, the King of Persia, stated (Nehemiah 2.7): "Moreover I said unto the king, If it please the king, let letters be given me to the Governors beyond the River, that they may let me pass through till I come unto Judah;"

In an article contributed in 1906 to the Journal of the Society of Comparative Legislation (N. W. Sibley: The Passport System, vol. 7 (N. S.) p. 32), it is indicated that the common-law rule in England has been that no man might leave the realm without license from the king:

"Leaving the Realm: the Attitude of the Common Law.-It clearly confirms the view that the original aspect of the common law to the subject of leaving the realm was one of prohibition, unless by license or passport, that Sir Leoline Jenkins wrote from Nimeguen to Sir W. Temple at The Hague: 'No subject of our master's (we'll put the case at home) can by the law go out of his dominions without his leave; nor is this leave, whether it be expressed or by implication (as in the case of merchants and sea-faring men) granted, but there is a time always supposed for his return; I mean when the king had need of his service; and in the case of every man of quality it is always prefixed' (Life and Letters of Sir Leoline Jenkins, vol. ii, p. 713, referred to in Sir R. Phillimore's Int. Law, vol. 1, p. 349). At the date of this letter the statute of 1382, giving permission to lords, notable merchants, and king's soldiers to pass over the seas, having long been repealed, the question of leaving the realm must have reverted to the position it stood at the common law, and Sir Leoline Jenkins states no less explicitly than Britton that the common law, with the exceptions arising under Magna Carta, prohibited persons leaving the realm without license. This seems to establish that passports are documents of high antiquity. granted by the king in his capacity of generalissimo of the realm. A passage in Vattel seems indirectly to confirm this, inasmuch as it seems to show that in absolute monarchies the practice was to prohibit persons leaving the realm. Vattel observes that Finally there are States where the rigour of the government will not permit