Foreign Relations of the United States, 1948, Germany and Austria, Volume II

CFM Files: Lot M–88: Box 121: File—Occupation Statute, Cables: Telegram

The Department of the Army to the United States Military Governor for Germany (Clay), at Berlin

secret
priority

[Washington,] August 29, 1948.

WX–88372. Part 1. Reur CC–5604, 19 Aug.¹ We agree with principle that Occupation Statute should be as short as possible and that reserved powers should be as few as possible. Part 2 this cable contains State–Army agreed comments on Occupation Statute which were prepared prior to receipt urad. After examination urads it is still felt views will be useful to you and therefore they have not been changed. Further comments will be forwarded, but this message contains preliminary State–Army observations direct response points urad.

Re para 1, agree to first and second purposes occupation but prefer ours stated in para 1 (C) part 2 to your third. Feel your third may be misinterpreted to indicate proposal for participation in European Union, which of course cannot be determined now. Furthermore, purpose expressed in our 1 (C) refers to contribution to ERP which is desirable.

Re para 2, do not consider this appropriate in Occupation Statute. Subject matter contained in this para is appropriate for consideration in determination of whether constitutions submitted to Mil Governors are consistent with principles contained in annexes F and H of London Agreement.²

Re para 4. Attention invited to omission of reserve power to insure security of occupation forces. We assume reservation on disarmament covers necessary control over level of industry, such as steel limitation. Also feel reserve power necessary to ensure enforcement of Occupation Statute. Although latter not referred to in letter of advice,³ it is thought to be implicit therein. Realize security of forces covered in power to declare emergency, but believe it should also be a reserved power in order that action may be taken in situations not requiring declaration of emergency. Query whether word “restitution” intended to cover all restitution or only external restitution. Query meaning of “conflicting legislation.” Is it intended to limit veto power to legislation which conflicts with Occupation Statute or Control Council and MG legislation?

Re last sentence para 6, Para 13 of part 2 intended to reserve to Mil Governors right to amend or modify statute in order further to extend powers to German authorities and in order to revise or revoke statute in the event of subsequent quadripartite agreement on a unified Germany. Realize that former may be taken care of by general language in statute as indicated your para 4 but latter is point that must be reserved in order not to preclude ultimate unification. Without such reservation, Soviets could contend that Western Powers did not intend unification and had put themselves in such position that they could not agree to it.

Your para 7 being considered. You will realize this proposal involves very fundamental issues and cannot be commented upon without opportunity for full consideration. Suggest you avoid taking any position on this proposal pending decision here.

Part 2. This message contains preliminary State and Army views on content of Occupation Statute and is forwarded for your consideration in preparing draft of statute itself. Points are arranged in general sequence of London letter of advice. Many of the points below are discussed in considerable detail and may be inappropriate to include in any such detail in the Occupation Statute language itself. They are given you for consideration and comment. For example it may be impracticable and undesirable to define jurisdiction of courts as given under para 7 (a) below in any such detail and it may be possible to cover by general language. In the same way transport communication and requisitions as covered under para 7b and 7c may be adequately covered under some such phrase as “provision for needs of occupation forces”. The same may apply to para 9 where general language may adequately cover the several situations requiring declaration of emergency. In commenting please keep in mind the conflicting requirement that Occupation Statute should be brief and at the same time should define as closely as possible the reserved powers in order to avoid conflicts over interpretation, as well as a possible German reaction that more general reserved powers actually mean much broader and greater reserved powers.

1. Statute will presumably be in form of proclamation by Mil Governors. Preamble might state statute intended to define scope of powers of Mil Governors. Mil Governors will reserve to themselves those powers which are necessary to achieve basic purposes of occupation; subject thereto, German authorities will exercise legislative, executive, and judicial power. Purpose of occupation should be stated to include:

a. Maintain public order and safety;

b. Prevent rearmament and resurgence of militarism;

c. Enable German people to reconstruct their life on Democratic basis, to make maximum contribution to German and European economic recovery, and in due course to participate in the community of free peoples.

2. In connection with German powers suggest avoid term “grant” as used in letter of advice, thus evading abstract issue as to source of authority of new German administration. However, we should like your comments re possible statement source of authority. This authority might be considered to be derived either directly from German people, or from occupying powers by grant to German people. While point perhaps need not be expressed in Occupation Statute, we realize it may be important to Germans and might have effect on their sense of responsibility for actions under new administration, particularly since they stated in Coblenz proposals that different consequences would follow from these 2 political theories.

3. Statute should make clear that enactments of Control Council and of separate Mil Governors continue in effect until modified or repealed by Mil Governors. Your views desired whether German authorities should be allowed to modify or repeal zonal MG enactments in their fields of responsibility subject to MG veto or whether it would be preferable to authorize German authorities to request Mil Governors to repeal or modify.

4. Conduct or direction of foreign relations is reserved to Mil Governors, and it is contemplated that diplomatic matters will be handled directly by Mil Government, at least for time being. However, Germans should be authorized to establish office to conduct consular activities, to issue travel documents, and to participate in work of appropriate international agencies and negotiation of appropriate international agreements. All such activities would be subject to direction or control of Mil Governors. Invite particular attention to aspects of travel control bearing upon emigration of scientists and technicians in view of allocation agreements.

5. Para 1 (b) of letter of advice specified “minimum control” over foreign trade and related internal policies. Essential minimize and clearly define such controls, but before transmitting our proposals would appreciate receiving your views.

6. In fields specified in para 1 (c) of letter of advice, and in additional fields of external restitution, treatment of DPs, and protection of foreign-owned property from discriminatory treatment, all powers of direct action should be reserved to Mil Governors, and German authorities will act only in accordance with directives issued to them. Further, all powers of direct action relating to custody and possible future clemency, with respect to major Nazi war criminals confined under sentences adjudged by the Nuremberg Mil Tribunals and other tribunals authorized or constituted under Control Council Law number 10, viz British and French Zonal Courts, if any, should be reserved to the Mil Governors jointly. Direct action with respect to minor, or conventional, war criminals should be reserved to the mil authorities of each of the occupying powers under whose jurisdiction such minor war criminals were tried and convicted. In order to make certain that policies and actions of Mil Governors in all reserved fields will not be obstructed, provision should be made for the removal from German to Occupation Courts of cases involving substantial Allied interests in these fields. While discretion to remove such cases would be for Mil Governors rather than Germans, it should be exercised as sparingly as possible, in order not to infringe unduly on independence of German judicial system. Statute should indicate that further powers within these fields may be extended to the German authorities from time to time.

7. This section deals with security and immunities of occupation forces and other matters found in para 1 (d) of letter of advice.

a. Jurisdiction of Occupation Courts should be precisely defined, even if this is done at some length. While following does not cover subject fully, we consider that members of occupying powers and of occupation administration, their families, and non-German personnel accompanying forces or accredited to them, should have following immunities:

(1). From criminal jurisdiction of German courts;

(2). From civil jurisdiction of German courts, except when authorized by Mil Governors;

(3). From arrest by German police, except when apprehended in act threatening or causing injury to persons or property and occupation police are not available;

(4). From search of homes or offices by German police;

(5). From appearance as witnesses before German courts, except with consent of Mil Governors;

(6). From German customs, foreign exchange regulations, and direct taxation (including income taxes).

Persons with these immunities would be subject to jurisdiction of occupation courts, and such courts would also have exclusive jurisdiction over all persons charged with offenses against persons, property, or security of occupation forces. Provision may be made for mixed tribunals in civil cases where both occupation personnel and Germans are parties. DPs should be immune from jurisdiction of German criminal courts. DPs while physically within camps should be immune from jurisdiction of German police. Consideration should be given to customs duty exemptions for DPs.

b. Transport and communications. Occupation authorities should reserve right maintain and operate all forms of transport, communications, and facilities, including such postal systems and press, as they may require. They should also reserve right to priority use of German radio and telecommunications systems, roads, railways, and waterways.

c. Requisition. Occupation authorities should reserve right to requisition supplies, services, property, and facilities for accomplishment of purposes of occupation. Mil Governors should periodically estimate occupation costs, and both in fixing amount of such costs and in exercising right of requisition, they should take into consideration German resources and budgets of Federal and Laender administrations.

d. German employees. Under Paperclip⁴ contracts US obligated to afford certain protection to technicians, their families, and property. Please consider necessity for unimpeded fulfillment of these obligations and for protection of indigenous employees US Forces from discrimination or pressure.

8. Observance of constitutions. Statute should make it clear that Mil Governors maintain at all times right to take any direct action necessary to ensure observance of German constitutions and Occupation Statute. Desirable that Germans should understand, however, that we expect to enforce their constitutions only when they are unable or unwilling to do so.

9. Emergency resumption of powers. Mil Governors may in event of emergency threatening security or if necessary to secure compliance with constitutions or statute issue proclamation resuming full authority over all or part of occupied area. Statute should set out precise conditions under which Mil Governors may issue such a proclamation. The following conditions are suggested:

a. Threat to security of Germany from outside Germany:

b. Threat to security or authority of German Federal or Laender administrations from inside, where Mil Governors consider that German authorities are unable to deal adequately with such threat;

c. Threat to security of the occupation forces from inside or outside Germany;

d. Substantial failure of German authorities to comply with provisions of the Occupation Statute, which failure may not be corrected as otherwise provided in statute;

e. Substantial failure of German authorities to act within scope of or to take necessary action for enforcement of Federal or State constitutions which failure may not be corrected as otherwise provided in the statute.

10. Reference para 3 letter of advice, proposed amendments to German constitutions must receive written approval of Mil Governors before ratification. All other laws and regulations of both Federal and Laender administrations shall be communicated to Mil Governors and shall become effective 21 days thereafter, unless disapproved by Mil Governors within that period.

Statute should provide that German authorities will comply with all decisions and directions of Mil Governors in fields of power reserved to latter. In order to make these decisions and directions effective, it should be recognized that Mil Governors also have rights to require furnishing of information by German officials; to inspect official records and correspondence; to issue directives binding upon individual Germans; and to enforce decisions by use of occupation personnel. It is not contemplated that such powers would be exercised except in cases of genuine need, but we feel these powers should be retained, and that it would not be satisfactory to confine issuance of directives by Mil Governors in all cases to highest German regional authorities, as proposed by Ministers-President at Coblenz. Statute should contain provisions ensuring observance of civil rights and liberties by occupation authorities in all dealings with Germans. Request your views on providing for exceptions in the event this infringes on security of occupation forces. Rights and liberties to be protected under Occupation Statute would, presumably be those protected under German constitutions.

11. Statute should make it clear that German authorities will be autonomous in fields not reserved to Mil Governors. However, latter will exercise a special responsibility to observe, advise, and assist Federal and Laender administrations in regard to democratization of political life, social relations, and education.

12. Since US favors formation of consolidated Tripartite authority, we think it would be desirable, if possible, to announce formation of such authority at time statute is proclaimed. MG Board exercising uniform authority in all fields except administration of justice, could be established either in statute or in accompanying announcement. It is strongly felt that all action taken by the 3 Mil Governors pursuant to statute should be by majority vote. If board is established in statute, provisions should be sufficiently general so that structure and operations of board could be modified later without amending statute itself.

13. Statute might provide that its interpretation will be by Mil Governors, and that it is subject to amendment or modification by future agreement among occupying powers. This should be phrased so as to permit inclusion of USSR.

14. While all rights of occupation authorities should be clearly expressed, we think it important that general tone and language of statute should not be unduly restrictive and should not imply that Mil Governors are still to exercise such sweeping powers that little authority is accorded to Germans.

Appreciate your comments on above.

1. Supra.
2. For Annexes F and H, see pp. 305 and 240.
3. The reference here is to London Conference document TRI/17 (Final), May 19, 1948, “Letter of Advice to Military Governors Regarding Powers of Civil and Military Governments”, p. 260, included as Annex I to the Report of the London Conference on Germany, June 1, p. 309.
4. Code name for the exploitation of selected German and Austrian scientists and technicians in the United States by American military authorities following World War II. For documentation on the program, see Foreign Relations, 1946, vol. v, pp. 682–684, 686–687, 689–691, 694–695.