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

top secret

WX–90559. From Dept of the Army from CSCAD to CINCEUR personal for Clay. Reurad Sept CC–61231 ourad Oct WX–90479.2

This supplements ourad as indicated in Para 16 ourad.
(a) Re Paras 17 and 18 urad. Some apprehension here that cases coming before court which require interpretation of statute may raise questions of policy as well as legal issues. If the court should develop tendency to base decisions even partially on considerations of policy it would infringe on legitimate functions of Govts of Occupying Powers. For this reason believe that a clarification of courts jurisdiction and procedure is desirable. Govts of Occupying Powers should retain ultimate auth to reverse court by inter-governmental decisions taken jointly to extent indicated below. [Page 608]

(b) Concur in the establishment of a High Appeals Court having auth to interpret statute. Decisions would be binding on the Mil Governors except that on recommendation of the 3 Mil Governors a particular case could be reviewed by the Govts of the 3 Occupying Powers which would have power by joint action to sustain, reverse or modify the judgment of the court.

(c) In your opinion should the Court have jurisdiction also to entertain appeals by individuals from decisions of other Courts in cases where it is alleged that MG or its agencies have violated basic civil liberties in contravention of this statute under appropriate procedure limiting cases to those involving fundamental issues we are considering this question here but have reached no conclusion.

(d) It is felt that the Court should be a larger body than indicated urad. Believe it should be composed of a total of either 8 members with 2 members each appointed by the US, UK, French and German Govts or a total of 9 members with 2 members appointed by each of the Govts of the 3 Occupying Powers and 3 Members appointed by the German Govt. It is assumed that all members of the Court will be judicially independent, appointed for a stated term by the respective Govt and would not be removable except for cause.

  1. Not printed, but see footnote 1 to telegram WX–90479, October 8, supra.
  2. Supra.