740.00119 Control (Germany)/10–2848: Telegram

The Acting Secretary of State to the United States Political Adviser for Germany ( Murphy ), at Berlin

us urgent

1778. Personal for Murphy (Eyes Only). Draft joint text of Occupation Statute (urtels 2621, 2622 of Oct 271) is disappointing to us. We recognize intrinsic contradiction in London program in its endeavor to establish provisional Govt in western Germany, under conditions which necessitate continued Allied Mil Govt controls. Nevertheless, unless occupation statute restricts Allied controls to minimum, and, even more, appears in German eyes so to restrict them, it is questionable whether provisional German Govt will really assume responsibilities desired and will enjoy confidence and support of German population. Document as at present drafted appears dominated by extensive and wordy list of powers reserved in Art. 2. Rearrangement of articles, as well as paring down of language, as we suggested in Warx 90479 of Oct 7, might be improvement.

We believe first “Whereas” clause of preamble should be deleted or modified, for reasons given in Warx 91431 of Oct 25.2

In second “Whereas” clause delete “to establish provisionally a constitutional German Govt” and replace by “that a provisional constitutional German Govt be established”. This change takes cognizance of desired German initiative and responsibility.

Likewise, we believe second sentence of para 5 in draft text should be deleted for reasons given in para 3 of Warx 91431 of Oct. 25.3

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We agree with the Brit that the fourth Whereas clause in the preamble might well be omitted.

We like the Brit view re German participation in conduct of Germany’s foreign affairs and commercial relations abroad, as expressed in No. para 4 of urtel 2622, except insofar as “executive control of commerce,” might be used to circumvent JEIA.

We do not quite see necessity of last twelve words of para 2(d). Is not matter covered by “Ensure the security of the occupation forces”.

  1. Neither printed; they transmitted the texts of Annexes “B” and “A” respectively of document TOS/P(48) 1, October 25, supra (740.00119 Control (Germany)/10–2748).
  2. Not printed, but see footnote 1 to message CC–6348, October 16, from General Clay, p. 614. Paragraph 2 of W–91431 explained that a statement in the preamble of the draft occupation statute to the effect that the Military Governors each exercised supreme authority in his own zone might furnish the Soviet Union with the basis of a contention that the Quadripartite agreements regarding Germany had been abrogated by the Western powers. (CFM Files, Lot M–88, Box 121, Occupation Statute, Gables)
  3. Paragraph 3 of cable W–91431, October 25, not printed, explained that German legislation in reserved fields should not require prior written approval of the Military Governors because it would be difficult in some cases to determine whether certain German laws, particularly economic laws, were in the reserved field or not. It would be far more desirable to have a uniform approval procedure for all German laws. (CFM Files, Lot M–88, Box 121, Occupation Statute, Cables)