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

740.00119 Control (Germany)/11–2648: Telegram

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

[Extracts]

secret
priority

[ Berlin ,] 18 November 1948.

CC–6781. From CINCEUR Berlin Germany sgd Clay to Dept of Army for CSCAD. The US, British and French Military Governors held their 4th meeting in Frankfurt on 16th November 1948.¹ It was a long 6 hour meeting emphasized by general reluctance of General Koenig to commit himself on any except relatively minor issues. The following were the subjects discussed:

[Here follows a report on agenda item 1, the financial situation in Berlin. For documentation on this topic, see Chapter IV, Part E.]

2. Powers of Federal Government in the police field—this was an agreed paper of one [of] our working parties which recommended that the provisional constitution should provide for certain federal law enforcement agencies subject to the restrictions that no federal police agencies have command authority over any Land or local police agency and that each federal agency shall have its powers defined by federal law which shall be subject to disapproval by Military Governors. It went on to recommend the establishment of a federal frontier control service, a customs control service, and a special criminal investigation bureau without the power of arrest.²

The paper, in general, was suitable so far as Robertson and I were concerned. He also felt that the federal government should have the authority to move police from one Land to another if the situation might require and at the discretion of some federal agency. He also proposed that the federal government be enabled to make grants-in-aid to cover the cost of Land police. His general feeling on the matter was that we must leave some permanent impression in Germany on the democratization of the police force and he, therefore, proposed that a working party now set up to consider harmonization of legislation should consider what legislation the three Military Governments should have on the general question of police forces and police power.

General Koenig reacted very strongly to this paper and to Robertson’s comments. He felt that there was no necessity for the creation of a federal police and considered that all of the functions to be assumed by this proposed federal police could be handled by Laender police forces. He was prepared to approve the concept of federal police in the capital of the country but he was not prepared to have federal police in the Laender. He also could not agree with Robertson’s concept on federal grants-in-aid to Laender police. I informed my colleagues that I wished to strengthen my position as stated in the paper and that I now felt that we must have sufficient federal police force to protect the future government. This force should not be large. It should have the right to arrest in the government’s capital, to guard and protect the assembly and to have the constitutional right to be sent into any state to bring before federal jurisdiction any federal employee who was violating federal law. This force need not be more than 5,000 in number and could possibly be only 1,000. It might be under the control of the sergeant at arms of the assembly or under the marshals of the federal court. I felt that such a force constituted no military danger, and meant less, not more, danger of dictatorship. Koenig thereupon proposed that such force as the Federal Government found necessary should be furnished by the Laender, but be detached while serving, and thus be controlled by the Federal Government. He suggested that there be no federal recruiting or federal promotion in such forces. Robertson and I agreed that such a proposal was impractical since the Federal Government would not have the means of controlling the type, quality or number of police to be furnished by the Laender.

We, therefore, agreed to refer our differences on this subject to our governments. I think our position is a minimum and would appreciate it being confirmed.

3. Progress report of the committee on allied controls—this was a report from our working party³ which set out the tentative organization of the allied controls in the Laender based on the concept of a tripartite commission in each Land. The French had a general reservation that in the event of future territorial reorganization, it might be preferable to modify at Land level the powers envisaged in this document which were to be granted to the occupying authorities. General Koenig questioned whether in this contemplated organization, the Land director would be responsible to his commander in chief on all matters reserved to military government as listed in the occupation statute. I pointed out that in matters where we had reached tripartite agreement we must no longer act unilaterally. Of course, we would have to exercise our joint powers through the Land directors. However only on matters specifically reserved for unilateral action, should the Land director act under the orders of his zone commander. I was prepared to agree, and I so informed my colleagues, to withdraw the concept of a tripartite commission in each Land, since in fact there was only one recommendation for a change in Land boundaries and, to disapprove this change so that we could leave each Land as it is now, governmentally, territorially and occupationally; thus reducing our own difficulties in reaching agreement.

General Koenig thereupon quoted from the letter signed by Winant, Campbell, and Massigli in connection with the establishment of the zones of occupation pursuant to the EAC agreement, which informed the French Government, on behalf of the US and UK Governments, that later the US and UK Governments were prepared, in conjunction with the French Government, to revise the zones of occupation in light of the occupation conditions then existing. He wished to know whether Robertson and I could now proceed to implement this letter, inferring very definitely that it was time to give the French some portions of the British and American zones. I told him that I was willing to discuss this and suggested that he give the US zone the area of South Baden which was desirable to our defense plan and which could have also the desirable result of recreating the state of Baden. He asked whether the US was prepared to give to France North Baden with the understanding that the US would maintain its defense positions there. I refused to do this and pointed out that discussion on the subject was useless since our positions in North Baden were maintained as a matter of military necessity. Not only had our military installations been installed at great cost but also this was our defensive position which we would not possibly let come under other control. This is issue which French will press again and again. Any acceptance of French position would be disastrous to our own position in Germany.

Robertson was prepared to go along with my suggestion on leaving the Laender in status quo, rather than setting up a tripartite commission. He preferred the system whereby the states in each zone continued under the control of the military government of the zone.

We discussed, in a tentative way, the question of allied controls at federal level. Robertson was dubious about the value of tripartite integration under German Government. He proposed that the BICO pattern be used and that the new agency simply consist of three unilateral chairmen each with his own staff and with no functional groups under these chairmen. We agreed to develop his idea in a separate paper and to consider it, together with the original concept of a tripartite commission at Land level. In this general question of integration I pointed out that certain agencies, such as those concerned with military security, must be joint and not integrated and must report to the military governors the decisions of the latter to be implemented through the Land directors. The finance agencies should also be joint. I considered, however, that the agencies for foreign trade should be integrated. So far as those functions which we were restoring to the Germans, such as transportation and communications, the three Military Governors should not deal with these matters except through the German Government. Our advisers should work in joint committees, reporting to the three Military Governors who, in turn, would deal directly with the German Government. General Robertson agreed generally with my comments on our organization at federal level. General Koenig asked whether there would be some provision for suspensive veto in the case of an important point in discussion by the three Military Governors not being unanimously agreed. I told him that in the bizone we had always had the right of appeal to the governments in such cases, that no specific time limit had ever been set for a reply, but I felt that ten days was a reasonable interval. General Koenig stated that he would report to his government the ideas expressed by Robertson and myself on these points. We, therefore, instructed our committee to consider this paper again in light of our discussion and to present us with a redraft based on control at the Land level by tripartite commission, another draft based on no tripartite agency at Land level, and a third paper on the subject of allied controls at federal level.

[Here follow numbered sections 4–8 covering the discussion on the first draft of the German constitution, questions related to limited and prohibited industries in Western Germany, possible customs legislation, and foreign investment policy. Regarding this portion of the meeting of the Military Governors, see footnote 1, above.]

9. Report on liaison with the Parliamentary Council regarding the occupation statute⁴ —This was a proposal of our liaison officers to send to the Germans for their guidance a précis of the occupation statute. I was not in favor of this and pointed out that we could not give the Germans a précis of a document which we were under obligation to send to our Governments for approval. We therefore disapproved this request and proceeded to discuss the occupation statute itself.

10. Revised draft of the occupation statute⁵—We considered this document in detail and reached some agreement on phraseology. There remained only a few substantial points of disagreement which will probably have to be referred to Governments before they are reconciled. These substantially disagreed points are as follows:

a. Issuance of a statute as a joint declaration—Robertson agreed at this meeting to issue jointly proclamations and laws in the period subsequent to the issuance of the occupation statute. However, he adhered to his former position that this proclamation should be issued unilaterally. Koenig proposed that the statute be drafted jointly and signed jointly but that each Military Government issue the document unilaterally. I could not agree with Robertson’s position on this since I felt that joint proclamation and issuance was necessary to demonstrate clearly the creation of a tripartite military government which was superior to the acts of a zone commander. I pointed out that after issuance of this proclamation there should be no operation by the zone commander in his zone except at Land level. Robertson then proposed that each zone commander should issue the proclamation adding thereto that he was hereby turning over his zone to the tripartite military government. I could not agree with this proposal either, and therefore I informed my colleagues that I would report my position to my Government.

b. Inclusion of power of censorship in powers reserved to occupation authorities—The British and French still adhere to their positions on this matter in that they wish to reserve to themselves the right to censor mail in their zones. I cannot agree to this.

c. German control of displaced persons—The French and US agreed that the protection, maintenance, and repatriation and resettlement of displaced persons should continue to be a matter reserved to the occupation authorities. General Robertson cannot agree on this position but wishes to reserve to Military Government only the implementation of any agreement between the occupation authorities and the IRO. I pointed out that no one knows how long the IRO would last. The question of displaced persons also arises in the statute in that section whereby we reserve to the courts of the occupation authorities rather than to the German courts, cases involving them.
General Robertson questioned whether the US and French would be prepared to accept a time limit on the jurisdiction to be exercised by Military Government courts over displaced persons. He would be willing to seek his Government’s approval to such Military Government court control for a period of two years from the promulgation of the occupation statute. I told him that I would report his proposal to my Government and recommend that we set a two year limit on this control. Request approval soonest.

d. Inclusion of occupation personnel in jurisdiction of German courts in civil cases—Robertson stated his position was that the German courts should have jurisdiction to try civil cases by or against occupation forces personnel in matters not arising out of their official duties. He felt however that the occupation authorities should reserve the right to remove any case from the courts as well as to retry any case in which it was felt that the Germans had shown discrimination. I informed him that I would report his position to my Government but that I could not recommend that we give German courts any jurisdiction over occupation forces personnel. Request confirmation soonest.

e. Requirements of the occupation—The US and UK on one hand and the French on the other disagreed as to whether occupation costs should be borne by German Government at levels other than federal. The US and UK concept is that occupation costs are a matter for the federal government and that Military Government should not deal with any agency other than the federal government on the question of occupation costs among the states. This [is] a part of French theory of decentralization and also represents their desire to hold a positive control in the states in the French zone. The Military Governors would never agree on the division and it would prove a constant source of friction. This is a basic issue. Request strong support and confirmation of my position.

f. Interpretation of the statute—The US position, with which Robertson stated he could agree, is that the high court should consist of 8 jurists, 2 appointed by each of the Military Governors, la German appointed by the federal government, and 1 a neutral appointed by the President of the International Court of Justice, decisions of this court to be binding upon the occupation authorities and the German Government. Robertson and I agreed that the number of jurists is unimportant but that it is important that the concept prevail that it is now time that the acts of Military Governors be subject to review by an agency not controlled by Military Governors. The French will not agree with this concept. They propose a council composed of 3 jurists, 1 for each of the occupying powers, appointed by the Military Governors, with German appeals to be first submitted to a separate German chamber which will decide on their admissibility and only those appeals declared admissible to be transmitted to the Council, which is advisory to the Military Governors. This is also a basic issue.

There are three basic issues only now left:

The police on which I think we must stand firm; the occupation budget on which I think we must stand firm; and the court. I think the latter will come about in time under any event and would like to compromise on it to secure other concessions. Please advise soonest.

[The meeting concluded with a discussion of certain minor points regarding the draft occupation statute together with an inconclusive consideration of conditions at Spandau Prison.]

[ Clay ]

1. For portions of Ambassador Murphy’s report on this meeting of the Military Governors covering in greater detail the discussions of the Parliamentary Council’s first draft of a constitution and the question of limited and prohibited industries in Western Germany, see extracts from telegram 266, November 17, from Frankfurt, pp. 832 and 440, respectively.
2. The paper under reference in this paragraph, document TRIB/P(48)4, November 12, 1948, not printed, was an agreed paper of the Committee on Allied Controls. The text was transmitted to the Department as an enclosure to a letter of November 17, from Ambassador Murphy to John D. Hickerson, not printed. (740.00119 Control (Germany)/11–1748)
3. The document under reference here is TMB/P(48)5, November 12, supra.
4. Under reference here is document TRIB/P(48)7, November 13, entitled “Report to the Military Governors on Liaison with the Parliamentary Council and the Ministers President Regarding the Occupation Statute,” not printed, a copy, of which was transmitted to the Department of State as an enclosure to Ambassador Murphy’s letter of November 17 to John D. Hickerson, not printed (740.00119 Control (Germany)/11–1748).
5. The Military Governors had before them the revised draft text of the occupation statute designated TOS/P(48)1/1, November 15, not printed. This draft incorporated those amendments and modifications in the earlier draft made by the Military Governors at their meeting on October 30 (see message CC–6525, November 1, p. 625) as considered and agreed upon by the Tripartite Working Party on the Occupation Statute at a meeting on November 13; the text of TOS/P(48)1/1 was transmitted to the Department of State as an enclosure to the Murphy letter cited in the previous footnote.