740.00119 Control (Germany)/3–746
The United States Political Adviser for Germany (Murphy) to the Secretary of State
[Received March 23.]
Sir: I have the honor to refer to my telegram 665 dated March 246 and to transmit to the Department the new comprehensive denazification law for the U.S. Occupation Zone in Germany entitled “Law for Liberation from National Socialism and Militarism”.47 The law was promulgated at a most dignified ceremony at Munich, Bavaria, on March 5, 1946, after approval by the Deputy Military Governor.
The evolution of this law may be traced through a number of despatches which have been transmitted from this Mission in Berlin. More specifically, the Department’s attention is called to my Despatch No. 1636 of January 9, 1946,46 entitled “Recently Created Denazification Policy Board at OMGUS” reporting the existence of the Denazification Policy Board and its stated function, which was to formulate a long-range overall program providing for placing as much responsibility as possible on German officials. The Denazification Policy Board and its Working Committee, on which I and members of my staff were represented, prepared for the approval of the Deputy Military Governor its Report dated January 15, 1946. That Report was forwarded to the Department as an enclosure to Despatch No. 1843 of February 4, 1946.46
Plans submitted by German officials were also studied by the Denazification Policy Board. One of the more important of these was called, “Draft of a Proposed Denazification Law Prepared by the Ministers of Justice of Laender Bayern, Wuerttemberg-Baden, and Gross-Hessen” and was forwarded with my Despatch No. 1769 of February 14, 1946.46 Another plan, a prototype of the one here submitted, was prepared by the Minister Presidents of the three Laender and was entitled “Law for the Political Liberation from National Socialism and Militarism”.46 Copies of an English translation of this proposal will be forwarded to the Department by separate despatch immediately.
The approved law represents the culmination of the work of the persons and organizations alluded to above. While in conversation with the German Land Cabinet Ministers at Stuttgart, the task of the representatives of the Deputy Military Governor was to reach an agreement which the Germans were willing to carry out which would [Page 668]preserve the basic U.S. policy objectives with respect to denazification and demilitarization.
Comparing the Report of the Denazification Policy Board and the present plan, the only significant departure from the U.S. plan is that the plan arrived at Stuttgart required specifically that “the entire conduct of the person is to be judged”. In the Denazification Policy Board Report, a provision for introducing “mitigating circumstances” to apply against the discretionary sanctions is only a very partial recognition of this principle. This principle finds concrete expression in the additional Category 3, called “Political Offenders on Probation” which is used as a temporary classification for those persons normally falling into the class above or below whose entire conduct may have been affected by mitigating or aggravating circumstances as judged by the Tribunal.
The problem which faces Military Government as a result of the passing of this law, is mainly one of correct and adequate supervision. There are certain inherent difficulties in administering a plan which provides that approximately one and one-half million persons fall into the proscribed classes. These persons, along with their families, will constitute almost a quarter of the German population of the U.S. Zone. The registration of all persons over 18, which the plan calls for, amounts to approximately 10,000,000 individuals. It is planned to accomplish this through the medium of the next ration card registration and renewal operation. One of the specific dangers which such a plan faces is that because of its size, the Tribunals, prosecutors, or administrative agencies charged with its administration will tend to “rubber stamp” their work. Secondly, the large number of cases involved along with the large number of Tribunals set up, makes for the risk of variance in the results. Thirdly, Tribunals operating on the Kreis level will be subject to local pressures and the characteristic makeup of the community might be expected to result, in some cases, in differences in final judgment. To combat the possibility of such maladministration, Military Government Public Safety Branch plans a program of inspection and reporting, which will include spot checks and reviews of the decisions arrived at by the Denazification Tribunals.
Initially, the entire denazification program will first enter a transitional period during which the German administrative machinery established under the law will gradually become effective. The responsibility of Military Government will be to assist the German officials in every possible manner in establishing administrative machinery and procedures to carry out the law. In addition, Military Government will investigate the members of the trial and appellate tribunals, the public prosecutors, the Ministers for Political Liberation and other German officials entrusted with the enforcement of the [Page 669]law in order to insure that they are anti-Nazis of long-standing, anti-miltarist, pro-democratic, and in complete agreement with the policies of denazification. Finally, as pointed out above, Military Government will be responsible for assuring that active Nazis and militarists are barred from public and private employment in positions above ordinary labor.
Specific instructions from OMGUS to Military Government officers in the field are not yet available, but during the transitional period, until the German law is effectively in operation, Public Safety Special Branches attached to offices of Military Government and the subordinate Security and Liaison officers, will continue to investigate the political reliability of persons incumbent in or under consideration for appointment to public or semi-public offices and positions of responsibility in important private undertakings, acting in accordance with existing directives. The details of the German administrative and enforcement machinery and the procedural regulations necessary for carrying the German law into execution will be worked out by the Ministers for Political Liberation, subject to the approval of Military Government.
Serious responsibilities are placed not only upon the German authorities but also upon Military Government with the enactment of this law. The German authorities at every level are to be held strictly accountable for the effective and just enforcement of this law, and their actions are to be subject to supervision, investigation, and control by Military Government. It is planned that even after the German administrative machinery is in full operation, additional responsibilities will rest upon the Public Safety Special Branches now charged with the removal and exclusion phases of the denazification program under present U.S. Directives. The Public Safety Special Branches will be continued and strengthened and will have responsibility for screening German denazification officials, assisting such officials in their work, especially the public prosecutors making their investigations and preparing their cases for trial and checking the operations of the German administrative and judicial machinery. In addition, these Public Safety Special Branch officers are to maintain custody of the Nazi Party and other records in case file of persons already investigated.
Article 58 of the law merits special attention. It provides that from the law’s effective date, all persons in Class I or in Class II categories in the list attached to the Law, or who were otherwise members of the NSDAP or one of its formations (except the Hitler Jugend and the Bund Deutscher Maedl) shall not be employed in positions above ordinary labor in governmental agencies and in private enterprises, in the professions, or in non-profit and welfare organizations. The [Page 670]list attached to the law is built on the mandatory and discretionary removal categories outlined in Control Council Directive No. 2449 which was sent to the Department as my Despatch No. 1962 of February 14, 1946.50 The mandatory removal cases noted in the Control Council Directive form the basis of Class I (“Major Offenders”) and the discretionary removal cases form the basis of Class II (or “Serious Political Offenders”) with certain minor modifications. The rebuttable presumptions for initial classification which the List attached to the law prescribe, apply not only to employees in dependent positions, but also to owners of a business and other persons having a proprietary interest therein. Such persons must be completely removed from the business or enterprise involved; demotions to ordinary labor if the person is retained in the same office or enterprise will not constitute compliance. However, it is to be noted that this provision does not apply to owners and employees of small unimportant enterprises, such as farms, and retail, sales, and service establishments, provided that such enterprises employ less than ten persons. This provision also does not apply to persons engaged in professions such as doctors, lawyers, and engineers, provided they do not employ more than two clerical, nursing, or similar employees. These prohibitions with respect to employment are effective until final decision on the classification of the person involved has been reached by decision of the German Tribunals. Any person, who, after June 1, 1946, violates such a prohibition, is subject to criminal prosecution under Article 65. Therefore, any public official who fails to remove Nazis and militarists from public employment is punishable under the law as well as an employer in private enterprise who retains persons in violation of the law.
Persons whose employment or activities have been approved by Military Government may continue in their positions or employment until final decision by the Tribunal unless prior to such decision by the Tribunal, Military Government has revoked such approval, according to Article 59. On the other hand, any person who has been removed or excluded from employment by order of Military Government may not be re-employed until the Tribunal has made a final decision in their favor.
For the Department’s confidential information, the Deputy Military Governor proposes to rescind U.S. Military Government Law No. 851 some time after the first of June when the criminal sanctions provided for in the law here submitted will become effective. This will not modify the operation of the basic principles of Military Government Law No. 8 since its basic spirit is incorporated in the present [Page 671]law. It is my understanding that for public relations purposes, it was decided to defer the rescinding of Military Government Law No. 8 until after June 1 even though its perpetuation is only of theoretical value until that time.