Foreign Relations of the United States: Diplomatic Papers, The Conference of Berlin (The Potsdam Conference), 1945, Volume II

740.00119 Control (Germany)/7–2645

No. 851
Memorandum by Major Harold Zink, of the Political Division, United States Group, Control Council, Germany¹

secret

[Undated.]

German Governmental Structure

section i. general policy

1. It is highly desirable that the process of reestablishing a German governmental structure be undertaken with great care and after adequate planning. The experience of American Military Government in Germany following 1918 as officially set forth in the Hunt Report² clearly indicates the great peril of proceeding on the basis of expediency and inadequate knowledge. Colonel Hunt concluded that the lack of a policy founded on a thorough analysis of the complicated factors involved resulted in many weaknesses which seriously and permanently vitiated the effectiveness of American Military Government in Germany and led to the playing of American, British, and French occupation forces against each other by the Germans.

2. During tactical operations military expediency must necessarily receive high priority in military government; during the post-hostility period long range objectives should determine action except in special emergencies. In setting up a German governmental structure it would be short-sighted to follow the line of least resistance or to be guided by such considerations as a slight economy of military government personnel or the convenience of dealing with a minimum number of German officials. The main objective is to prevent a recurrence of such international menaces as German militarism and National Socialism. The setting up of an adequate German governmental structure has an important bearing on the above objective.

3. Steps taken to set up a German governmental system should be directed to the maximum extent toward the establishment of a structure which will be democratic in character and lasting in effect. Unless Military Government can create a German governmental system which embodies democratic principles and is so well founded that it will be retained by the Germans after the occupation has ended it will have failed in its fundamental mission.

4. Though the setting up of a satisfactory German governmental structure requires the elimination of Nazi agencies and ideology, it is not necessary to ignore the system which has developed in Germany over several centuries. The scrapping of all established machinery and units would in all probability lead to a chaos which would not only enormously complicate the problems of military government but defeat its primary objective. Insofar as possible and unless there are compelling reasons otherwise the general governmental system based on the Gemeinde–Kreis–Regierungsbezirk–Land/Provinz and the existing boundaries of the various units should be retained. In any country it is dangerous to ignore the experience of the past; in Germany where even the Nazis found it impossible to eradicate traditional governmental units such as the Lander, blind disregard of established governmental units would lead to endless difficulties and serve no useful purpose.

5. In those instances in which a change in boundaries of German governmental units is contemplated, careful regard must be given to the cultural, language, religious, geographical, economic, transportation, and related factors involved. Disregard of these factors would lead to the setting up of artificial units with little chance of permanent success. The subsequent failure of such units might cause serious problems in the future, thus jeopardizing the primary objective of Military Government.

6. Many of the objectionable features of German government in the past have been largely due to extreme centralization. The Nazis carried an already highly centralized governmental system to a point where they controlled virtually every aspect of human activity. The JCS 1067 series³ directs that the German governmental system be decentralized and that local responsibility be developed. “Autonomy in regional, local and municipal agencies of German administrative” [administration] is to be encouraged. The primary objective of Military Government depends in no small measure on the carrying of this mandate into effect. The promotion of democratic principles requires the restoration and even the strengthening of the old self-government authority of the Landkreise, Stadtkreise, and Gemeinde. Vitality must be reinfused into the Lander. At the same time decentralization must not be interpreted so literally that it renders impossible reasonably effective provisions for public health, public safety, public welfare, housing, collection of statistics, etc.

7. Though there are fundamental differences distinguishing the Germans of Bavaria, Baden and Württemberg, for example, from their fellow-countrymen in Westphalia, Hanover, Oldenburg, and Hamburg the overriding factors make for a single German state rather than for separatism. Small groups on the Czechoslovak, French, Dutch, and other borders favor separation from Germany and union with the nearby countries. Other small groups desire to restore dynasties to ruling authority. Certain individuals have placed themselves on record as supporting the setting up of an independent Bavaria, Rhine Republic, Saar State, etc. However, there is slight evidence at present of any widespread support among the German population for the dividing up of the Reich into a number of independent countries. Nor is there any very compelling argument for separatism from the long range Military Government viewpoint, though a case can be made on the basis of possible expediency. In general, it does not appear to be realistic to expect a separatist movement of large proportions among the Germans. A separatism imposed by Military Government would bring in its wake the lack of popular support, the probable impermanence, and the many other difficulties usually attendant upon such artificial creations.

8. With decentralization mandatory and separatism unlikely to have wide support, a federal type of German governmental structure seems to offer the greatest promise of achieving the primary Military Government objective. Under such a system functions such as food supply, railroad administration, PTT, issuance of currency and eventually the conduct of foreign relations would be handled by a Reich government while the major part of governmental authority would be exercised at the Land/Provinz level. The Länder/Provinzen would in turn provide a maximum of autonomy at the Kreis-Gemeinde levels in accordance with JCS 1067.

9. In any federal system likely to prove effective certain basic modifications in the Lander must be undertaken. While it is not essential or indeed desirable that all Länder be uniform in area and population, it is of the highest importance that Prussia be broken up into a number of smaller units. A single Land (Prussia) which contains more than half of the area (321,787 sq. km.) and population (45,328, 118 in 1939) of the entire German Reich cannot be fitted into any vital federal system of government. On the other hand but distinctly less important is the problem presented by very small Lander, such as Schaumburg–Lippe with 53, 159 inhabitants in 1939, Lippe with a population of 187,220, and Anhalt with 431,422 people, which are too tiny to exercise in any very satisfactory manner the functions of really effective Lander. Though JCS 1067 directs decentralization and it is undesirable otherwise to engage in any considerable general fusion of Länder, there are strong arguments for considering the possibility of eliminating the separate identity of Lander with fewer than one million inhabitants.

section ii. governmental levels

10. Reich. Under the Nazi Regime virtually all governmental functions were centralized at the Reich level. The early military government planning was based on the assumption that the machinery at this level would be in operation at least to some extent when the Allies took over. Consequently plans were drawn for the continued operation of agencies other than those to be scrapped as Nazi creations. The fact that no central government agencies were functioning when Germany capitulated makes it necessary to reconstitute those ministries which it is desired to reestablish. While it is desirable to set up a fragmentary Reich government at an early date because of the pressing problems of food, coal, transportation, and possibly a few other items, there seems no good reason to proceed immediately to the establishment of an elaborate general system of Reich government. Executive and legislative branches clearly must be delayed until the early period of Military Government has passed. The setting up of administrative departments should depend upon the needs as revealed by developments. The principle of establishing ministries only after it has been decided that there are necessary functions to be performed in the immediate future might well be followed. In setting up ministries the same principle of functional necessity might wisely be followed in the case of subdivisions. Any other course would not only provide unnecessary machinery but complicate and even jeopardize the process of substituting a federal system of government for the old highly centralized machinery.

11. Länder. Under a federal system substantial authority will be vested in the Lander, though this should not go so far as to transfer to the Lander the entire body of power formerly exercised by the Reich. Under the Nazis the Länder [became primarily administrative units of the Reich and their former machinery of government⁴] was deprived of any considerable responsibility. It is of first-rate importance that the Länder be restored to a position of vitality and influence. On the other hand it is not desirable to give too far reaching authority to them, since such a system, though easier to supervise and of great appeal to those who are primarily impressed by immediate effectiveness, would prevent the autonomy specified in JCS 1067 and make impossible the local responsibility so necessary for educating the German people in democratic techniques.

12. Provinzen. With Prussia broken up both because of the zone lines and the necessity of ending its predominance, some provision must be made for the Provinzen. Most of them can be transformed into Länder with little difficulty. Others can be joined together into Lander. Hessen–Nassau, the only Prussian area involved in the American Zone[,] has already been given the status of a Land.

13. Regierungsbezirke. There has been some desire to abolish these units of government which have recently functioned only in Prussia and Bavaria. However, the experience of Military Government in Bavaria as well as in certain Provinzen indicates that Regierungsbezirke occupy a very necessary place in the governmental system in those Länder where the population and area are large. In Bavaria with approximately 150 Landkreise and more than 20 Stadtkreise some intermediate unit is essential between the Land government and the local governments. In those Länder with populations not exceeding two million inhabitants, such a unit is probably not necessary inasmuch as such Länder are themselves about the [same] size as Regierungsbezirke in Bavaria and Prussia. The Regierungsbezirke require the necessary authority to carry out those services which cannot be handled at the local level, but care should be taken that they do not assume complete control over the Kreise and Gemeinden, thus eliminating the very important self-government functions of the latter.

14. Local Governments. The Landkreise, Stadtkreise and Gemeinden have the closest contacts with the people of Germany. Under the Stein Reform⁵ they were to be given a large measure of control over so-called “self-government functions” and in many instances developed standards which were admired even outside of Germany. Though a start was made in the direction of placing German local government on a democratic basis the process was not permitted to continue far. Under the Nazis the remaining vestiges of local freedom disappeared and local government became very largely the creature of the Reich. The Landkreise, Stadtkreise, and Gemeinden during recent years have been little more than administrative units, though in theory the sphere of “self government” authority has been maintained. A major objective of Military Government calls for the reconstituting of German local government on the basis of as much local autonomy as is consonant with a reasonably effective handling of problems. The most promising method of training the Germans in democracy is to give them a large measure of responsibility in conducting their own local affairs. It is important that the emphasis should not be solely on the most efficient system of controls, the greatest economy of funds or personnel, the easiest way for MG officers to supervise (though these are of course not to be disregarded), for these are immediate matters. Relative inefficiency is tolerable, indeed desirable, if democratic experience can be provided. On the other hand, it is unrealistic to believe that full local autonomy is feasible in this age of complicated problems. Moreover, the helplessness engendered by extreme centralization exhibited by many local officials makes some measure of higher supervision essential, especially during the immediate future. Food rationing, coal supply, public health, and other related problems cannot possibly be left to the local units. However, local public works, public safety, recreation, welfare, housing and education are fields in which every effort should be made to promote local responsibility and interest. Considerable leeway should be feasible in administering local finances.

15. Special Districts. The Nazis gave great impetus to a movement already underway in Germany which provided special districts for the handling of various functions. Finance, labor, food rationing and production, economic matters, PTT, transportation, and a number of other governmental functions were removed from the traditional government units and administered on the basis of special districts which were by no means unified in boundaries. The result was an enormously complicated system which few citizens could be expected to keep in mind. Decentralization and the accompanying emphasis on the promotion of democracy require the fusion of most of those special districts with the regular units of government. Such a step will strengthen the Länder and local units of government, make it easier for the people to know their governmental system, and obviate some of the duplication and waste which naturally accompany such an elaborate structure. PTT and railroad districts may be exceptions to the rule since they depend upon transportation facilities which may have little relation to Länder boundaries. A case can obviously be made for the maintenance of all of these special districts, but overall considerations of simplification and democratization call for fusing them into the Land/Regierungsbezirk/Kreis system.

[section] iii. miscellaneous

16. Executive Agency. Executives subject to strict MG control have in general been installed by Military Government up to and including the Land level. Until the reconstituting process has been carefully observed and found satisfactory in operation, including the establishment of such Reich ministerial machinery as is necessary, it is not intended that a Reich executive agency shall be set up. The Control Council will act as an executive at the Reich level. In the past German executives have been appointed, except in a few instances such as Bürgermeister in Württemberg for a brief period. This system is in general probably better adapted to Germany than an elective one, but a provision under which Bürgermeister in Gemeinden, Oberbürgermeister in Stadtkreise, and Landräte in Landkreise would be popularly elected after elections are permitted might contribute to the building up of local responsibility for government. In any case the selection of anti-Fascists with adequate professional qualifications, strong personal characteristics, and not too advanced in years is of the greatest importance.

17. Legislative Bodies. Legislative bodies either ceased to exist entirely or became powerless under the Nazi system. During the early period of Military Government no elected legislative bodies can be permitted, but advisory bodies should be established at least on the local level. When elections are authorized, legislative bodies should be first organized in the Kreise and Gemeinden. Then the provision should be extended to the Regierungsbezirke and Lander. Only after it has been decided that a general Reich government is desirable should a provision be made for a national legislative body. In setting up legislative bodies every attempt should be made to endow them with definite authority which will permit a large measure of freedom in matters relating to their respective units of government.

18. Courts. Military Government plans call for the reestablishment of German courts beginning with the Amtsgerichte as soon as conditions permit and satisfactory personnel are available. Numerous Amtsgerichte have already been reopened as well as a small number of Landgerichte. Higher courts should be provided as rapidly as conditions warrant. Lower administrative courts should be reconstituted as soon as the necessary personnel can be screened. The numerous special courts which under the Nazis made the German judicial system excessively complicated should be eliminated in large measure from the court system.

19. Civil Service. The German Civil Service is probably the oldest and one of the largest, if not the largest, in the world. During the years 1933–1945 severe pressure led the majority of the civil servants to become at least nominal members of the NSDAP. Civil servants with Nazi allegiance will be removed and disqualified insofar as they hold executive or policy-determining positions. While wide attention has been given to the denazification of the Civil Service, comparatively little has been heard of an equally serious problem involving the bureaucratic and anti-democratic traditions of civil servants, especially in the higher and middle classes. There is substantial evidence that the attitude of the civil servants was an important contributing factor in the scuttling of the Weimar Republic. Military government may have to make immediate use of those civil servants who pass the Nazi vetting test irrespective of their lack of sympathy with democratic traditions, but it would be a very short-sighted policy to continue these civil servants in position indefinitely on the basis of their technical qualifications, at least insofar as they are employed in those departments having political character, where the opportunities to sabotage the democratic achievements of Allied Military Government at a critical moment are unsurpassed. Vigorous effort should be made in the direction of setting up training programs for new civil servants which will be free from the pernicious emphasis of bureaucracy. Special titles and perquisites which set the civil servant apart and serve as foundations of the bureaucratic system should be eliminated. The civil service system which had been completely nationalized, even to local government employees, should be reconstituted on a Land basis, giving reasonable leeway to the local units in handling their own personnel problems.

20. Military Government Control. Allied Military Government must assume responsibility for the supervision of German government indefinitely. As and when this control is ended, it should follow the procedure of giving full responsibility to the Germans on the Kreise and Gemeinden levels first. If that proves satisfactory, controls may be removed at the Regierungsbezirk level. Military Government control at both the Land and Reich levels must be continued throughout the occupation.

In exercising control Military Government should work primarily through a single German official, i. e. Minister President of a Land, Regierungsprdsident of a Regierungsbezirk, Landrat of a Landkreis, Oberbürgermeister of a Stadtkreis, or Bürgermeister of a Gemeinde, holding this official strictly responsible for the entire performance of the government unit concerned. This does not mean that no contact can be had with other German officials, but if control responsibility is subdivided it will inevitably lead to evasion of final accountability by the Germans and thus cause confusion and unsatisfactory performance.

Military Government officials cannot expect to exercise adequate control unless they spend much of their time in the field, observing at first hand the operations of the German governments they supervise.

21. Elections. Elections are not contemplated during the initial period of Military Government. However, as soon as Military Government experience at the Gemeinde and Kreis levels indicates that German government has reached a point where elective councils can function to advantage local elections should be authorized. Appointive advisory councils should in the meantime precede such a step. As developments at the local level demonstrate that the German people can properly be entrusted with responsibility, the election process should be extended to Regierungsbezirk councils and then to the Landtage. National elections must be postponed until such a time as it is decided to establish a full Reich government with executive and legislative powers.

22. Political Parties. The JCS 1067 series provides that “no political activities of any kind shall be countenanced unless authorized by” the Commanding General of the U. S. Forces. This has properly been construed to ban political parties during the initial period of occupation. There is fairly extensive evidence of a desire on the part of a limited number of former Social Democrats, Democrats, Centrists and other Middle and slightly Rightist groups to become active as political parties. Communists are more insistent on their resumption of political activity. Anti-fascist groups tending to be dominated by Communists though including in their numbers representatives of middle and left center ideologies are to be encountered in many urban sections. A limited amount of freedom should be given to political parties, especially on the local level, as soon as the German governmental system has developed sufficient stability. If this arrangement works out greater leeway should be given and activities should be permitted on a Land level. Authorization of national political organizations would depend upon the decision to authorize a Reich legislative body.

It is highly desirable that the number of political parties be reduced sharply below that which characterized the Weimar Republic, inasmuch as a multiplicity of parties contributed in no small way to the weakness of that government and would in all probability have a similar effect in the future. It would not be feasible for Military Government to set an arbitrary limit on the number of political parties in Germany, for any such provision would not only be difficult to enforce but lead to an undesirable artificiality. However, encouragement insofar as may be possible should be given by Military Government to a system under which there would be two or three major political parties.

1. Printed from the final text as transmitted to the Secretary of State by Murphy as an enclosure to despatch No. 699, dated July 26. This text has only minor variations from a draft forwarded by Murphy on July 17 to James W. Riddleberger, Chief of the Division of Central European Affairs, then at Babelsberg, for use in connection with the discussions taking place at the Berlin Conference, except that the draft given to Riddleberger (file No. 862.00/7–1745) did not contain paragraphs 21 and 22,
2. American Military Government of Occupied Germany, 1918–1920: Report of the Officer in Charge of Civil Affairs, Third Army and American Forces in Germany (Washington, Government Printing Office, 1943).
3. “The JCS 1067 series” refers to a draft directive to the Commander in Chief, United States Forces of Occupation in Germany, regarding the military government of Germany circulated to the Joint Chiefs of Staff as J. C. S. 1067 (text in Foreign Relations, The Conferences at Malta and Yalta, 1945, p. 143), and to subsequent drafts and papers on this subject produced during the development of the directive as finally issued in May 1945 (see Department of State Bulletin, vol. xiii, p. 596).
4. The passage in brackets has been supplied from the draft forwarded to Biddleberger by Murphy.
5. For details concerning the “Stein Reform”, see J. R. Seeley, Life and Times of Stein, or Germany and Prussia in the Napoleonic Age (Cambridge, 1878), and Guy Stanton Ford, Stein and the Era of Reform in Prussia, 1807–1815 (Princeton, 1922).