Department of Justice memorandum for Government on alien internees

1. The Minister for Justice seeks the direction of the Government as to what action should be taken in regard to 6 Germans and 1 Dutch citizen, who are at present detained under the Emergency Powers (No. 20) Order in a military internment camp at Athlone, and 2 Germans and 1 Indian national, who are serving sentences of penal servitude in the military internment camp at Athlone, but who in the ordinary way would be released on the 23rd of October next on the expiration of three-fourths of their sentences. Three possible courses are open:-

1. the aliens could be deported:
2. they could be released conditionally or unconditionally:
3. they could be detained in custody.

It is desirable that this question should be considered without delay for the following reasons - (1) it is desirable that these men should not be detained any longer than is absolutely necessary: (2) some decision must be taken before the 23rd of October next in regard to the three men who are undergoing penal servitude: (3) a report has appeared in the newspapers (11/9/45) that the Allied Control Council in Germany 'have decided to recall to Germany all German officials and obnoxious Germans in the neutral states of Sweden, Switzerland, Spain, Portugal, Éire, Tangier, and the Vatican City.'

2. The names of the persons in question are shown hereunder. A short account of each man's case is given in the Appendix to this memorandum.¹

3. The Department of External Affairs state that if any of these men were deported it is almost certain that the British or Americans would apprehend them and that at least some of them would be charged with offences. In the circumstances the Minister is not prepared to recommend deportation.
4. If the Government approve of the Minister's recommendation that these men should not be deported, the question remaining to be considered is whether the men should be released, or detained in custody. The Minister is satisfied that from the point of view of internal security these men are no longer a danger, and in the circumstances he has grave doubts as to whether he is justified in detaining them any longer under the Emergency Powers (No. 20) Order on the stated ground that their detention 'is necessary in the interests of the public safety.' Furthermore, from a humanitarian point of view it is desirable that the detention should be terminated as soon as possible. All these men, with the possible exception of Van Loon, appear to be men who, actuated by patriotic motives, undertook very dangerous tasks. On the other hand, these men, although not criminals in the ordinary sense, were guilty of conduct amounting to a flagrant breach of our immigration laws and a complete disregard of our sovereign rights in circumstances gravely prejudicial to our national security. The Department of External Affairs state that the British and American Governments know that the activities of these men were directed ultimately against themselves and that they would regard it as an unfriendly act on our part to release the men now. They state further that the release of the men would certainly give rise to diplomatic complications including a demand on the part of the British and American Governments that they should be deported immediately or should voluntarily surrender to the British authorities. This would be so, even if the men were made subject, after release, to special restrictions on their activities imposed under the Aliens Order, 1939. On the whole, the Department of External Affairs consider it better, not only from the point of view of the men themselves but also from the point of view of the other Germans still residing in this country, that the men should stay where they are for the present. It is understood that the Staff of the former German Legation hold the same opinion. If it is decided to release, any restrictions which may be considered desirable can be imposed on the activities of the 6 Germans and the Dutch national under the Aliens Order, 1939 (S.R. & O. 291/1939).
5. If the Government decide that these men should be kept in custody for the present, the question will arise whether the three men who are serving sentences of penal servitude should be held under their sentences after the 23rd of October next (the date on which they would in the ordinary way be released on 'remission' for good conduct), or should be detained after that date under some other authority. The Minister for Justice suggests that, if the men must be kept in custody, they should be held under their sentences. These men were convicted by the Special Criminal Court, and they were transferred to military custody by order of the Minister under section 50(3) of the Offences Against the State Act, 1939. While they are in military custody they are detained under conditions prescribed by regulations made by the Minister for Defence under section 50(4) of the Offences Against the State Act. The law relating to the discharge on licence of persons serving sentences of penal servitude is contained in the Penal Servitude Acts. Normally any well-conducted convict is released on licence after serving three-fourths of his sentence but the Attorney-General has advised the Minister that the Acts do not make it mandatory on him to release any particular convict before the expiry of his sentence. Accordingly it should be possible to detain Tributh, Gartner and Obed if necessary until the 24th July, 1947, without the issue of any further order or warrant. Directions have been issued by the Minister for Defence providing for the unconditional release of all well-conducted prisoners and convicts in military custody after service of three-fourths of their sentences. These directions are extra-statutory, but it is suggested nevertheless that if it is decided not to release Tributh, Gartner and Obed on the 23rd of October, it would be well that the Minister for Defence should amend these directions by excluding these three men from the application of the directions - the directions would still apply to 'IRA' prisoners and convicts in military custody.