Foreign Relations of the United States, 1949, Council of Foreign Ministers; Germany and Austria, Volume III

740.00119 Control (Germany)/2–1749

The United States Political Adviser for Germany (Murphy) to the Assistant Secretary of State for Occupied Areas (Saltzman)

secret

Berlin, February 17, 1949.

Dear Charlie:

[Here follow the first three paragraphs in which Murphy reported briefly on the Military Governors’ discussion of customs control, the signing of a payments agreement, and agreement on the operation of German insurance companies.]

Having thus concluded the formal agenda the Military Governors then entered upon a lengthy discussion of the Provisional Constitution.¹ Robertson opened by stating that he had requested a discussion of this matter as progress at Bonn had been rapid and it appears that the Parliamentary Council can conclude within one or two weeks. He thought it therefore advisable to consult his colleagues on procedure. He envisaged two possibilities: (1) The Military Governors could wait until the constitution is presented formally and then give their approval or rejection. For his part he thought it would be tragic if the constitution failed of approval or could only be approved if certain amendments were adopted. Two consequences would ensue in that the Council could either accept the amendments as Allied dictation or could give up the attempt to formulate the constitution; (2) The other course would be to consider the constitution at the present stage and to make comments before the final reading. This, in his opinion, was the wiser course, but agreement must be reached between the Military Governors before it could be accomplished. Robertson then referred to the Occupation Statute² and suggested that the Military Governors should meet with the Germans in the near future in order to give them the broad outline of the Statute and to ask them to give us their general ideas on the constitution. After this had been done, a later meeting could be arranged to discuss the constitution with the Germans.

Clay responded in stating clearly that he was greatly disappointed in the draft constitution. The relation between the federal government and the Laender was poorly defined and too much power was centralized in the federal government leaving only the Bundesrat as protector of the states. He doubted, in view of the clear indications of the Aide-Mémoire of 22 November 1948,³ whether seeing the Germans again would do much good. Article 36 gives extensive powers in welfare, health and other matters to the federal government. Furthermore, the Council has refused to comply with our requirements on civil service. In the field of finance the Laender have almost no powers left. In view of this unsatisfactory outcome, we can probably only get what we want by dictating it. General Clay regretted that the Occupation Statute was not yet ready but doubted the advisability of telling the Germans about it until agreement had been reached. In his opinion at the time of the Aide-Mémoire there were only a few articles that did not conform to the London Agreement⁴ but since November the Council has made deep inroads into the powers of the Laender.

General Koenig then announced his agreement with Clay’s criticisms in their entirety and said he had a few more of his own. He stated that the French Government will never authorize the inclusion of Berlin in the basic law. Furthermore, his government could not accept Laender boundary changes by votes easy to obtain. He agreed with Robertson that the Germans should be told before completing their work that they are taking the wrong path and German opinion would ultimately be shocked if we did not make such a démarche. He therefore agreed with General Robertson that we should tell the Germans of our dissatisfaction now and suggested that possibly such a meeting could be arranged as soon as the Occupation Statute is agreed. General Clay replied that if we meet with the Germans we must be in agreement on what to tell them and must be specific in our criticism of their constitution. He had little hope that the three Military Governors could agree so specifically and he was not willing to discuss with the Germans unless we had full agreement on what to tell them. Koenig stated agreement was obviously necessary but he thought we might tell the Germans that certain articles would have to be suspended. Clay did not agree and thought that we must be specific in indicating why certain articles were not acceptable and how they should be modified to meet our requirements. For example, the article on financial powers could not be suspended without the government falling apart.

Robertson answered these observations with the comment that his proposal for a first meeting would not involve discussion and therefore it was not necessary to have complete agreement at this stage. He agreed with General Clay that it might be difficult for the Military Governors to reach agreement on all points and therefore discussions between the Military Governors should commence as soon as possible and should not await the conclusion of the Council’s work. He indicated that in his opinion the Military Governors do have the power to suspend articles of the constitution which indeed might be employed in the case of Berlin. For example, he would agree to the clause on Berlin provided it was suspended during a certain phase. Also it was possible to accomplish certain objectives by means of Military Government legislation, i.e. civil service. There was furthermore the question of an electoral law which in his opinion must be enacted by Military Government. Clearly the three governments have an interest in all of this but he had no instructions apart from the letter of advice to Military Governors on the German constitution.⁵ His government might, therefore, disagree with what he now proposed to say, which was as follows:

The letter of advice recognizes that there are several ways to get a federal structure. While certain guides are given, it does not mean that the basic law must be rejected because it departs somewhat from the directives. He was in agreement that the basic law in the fields mentioned by General Clay and on finance does depart from the Aide-Mémoire but these infractions were somewhat offset by the Bundesrat powers. The Council had also disregarded the instructions on civil service. Admitting these imperfections, are they in reality so serious that the constitution should be rejected? This would be indeed a grave decision leading either to Allied dictation of the constitution or to the interruption of our joint program for Western Germany. The departures were not so bad as to justify automatic rejection.

General Robertson then reminded his colleagues that the document represents a compromise reached with great difficulty between the SPD and the CDU. The SPD attaches capital importance to the financial provisions. Insistence upon amendment would destroy the compromise and may set the SPD against the constitution with the result that it may be rejected in states with a SPD majority.

General Koenig stated he could envisage the terrible effect both of disapproval by the Military Governors or SPD rejection. Therefore we should ask the Germans to defer the final vote. General Clay was opposed to this as he never thought approval would be merely a rubber stamp. The Council has had ample warning that certain provisions could not be approved and we had no obligation to accept a constitution containing them. If that means no Western German government then there would be no Western German government. He was, however, willing to have the Political Advisers go over the constitution to see if agreement could be reached on what to tell the Germans. Perhaps thus we could reduce the area of disagreement and submit them to governments for decision. He doubted, however, that agreement on financial powers and on Berlin could be reached by the Military Governors and these questions would probably have to go to governments. General Clay saw no point in discussing Berlin if Koenig’s instructions completely excluded Berlin. General Clay stated that he had no rigid instructions and could discuss and negotiate with a view to compromise. General Robertson said he could likewise negotiate except on Berlin where he did have instructions.

It was then agreed the Political Advisers should examine the constitution and should if possible agree upon what could be said to the Germans. They should also analyze the constitution so that the governments can be informed of the disagreements. If these disagreements cannot be resolved locally the manner of dealing with them can be decided.

General Clay then suggested that the Germans be advised in this sense so that the Council would know that objection would be forthcoming. The Council could then decide before the final vote whether to make corrections. This was agreed and the attached statement was subsequently drafted by the Political Advisers. Separate reports on the work of the Political Advisers will follow.

General Robertson then stated that he was seeing Adenauer today who proposed to discuss with him a question of Military Government legislation. He asked his colleagues if he could tell Adenauer that Military Government laws on police and press can be expected. General Koenig added also a law on education could be expected. General Clay replied that he was not committed to a press and radio law and not committed to an education law. As far as police were concerned, he was only committed to tell them what we would accept. Robertson said that he would only speak for himself and that each Military Governor could do likewise. This was agreed. General Koenig then inquired if the United States was not bound to enact a press and radio law. General Clay replied that he had never heard of it until the matter was raised at London. Koenig said that it was agreed at London to which Clay replied that nothing was agreed at London until everything was agreed. General Robertson said that apart from discussions at London he was prepared to collaborate on a press law.

Robertson then brought up the question of an electoral law and asked if one should not be drafted. Clay stated that each Land in the U.S. Zone has such a law and that we only need agreement that elections should be held in accordance with them. Robertson thought that a law was nonetheless needed and suggested that the Political Advisers study this point as the constitution does not give the number of representatives in the lower house. Clay agreed that there must be a law to define the composition of the lower house but that was not an electoral law in his opinion. It was agreed that the Political Advisers would examine the question.

The Military Governors then turned to the question of ratification of the constitution. Robertson said that he was now in favor of ratification by Landtage and not by referendum. Koenig recalled that London provides for referendum and he had so informed Adenauer. Clay said that London provided that ratification will take place by each state by referendum. Subsequently both the UK and France seemed to favor Landtage. As a believer in states rights, he was willing to let each Land decide on method. Koenig found this not a bad solution but would have to consult his government from which he hoped to have an answer shortly. Clay reminded his colleagues that the Ministers President should be informed of the period in which they can act.

Koenig inquired whether we could not give the Occupation Statute to the Ministers President in case such a meeting were held. Clay recalled that the Parliamentary Council and the Ministers President have been promised that the Occupation Statute would not be promulgated before discussion with the Germans. General Robertson stated that the governments also share the obligation to consult with the Germans.

[Here follow the remaining paragraphs in which Murphy reported the Military Governors’ discussion of decisions of the Bipartite Board, Berlin currency, quarters for the Ruhr Authority, Kehl, refugees, harmonization of zonal legislation, and the steel control group.]

Sincerely yours,

Bob

[Enclosure]

Proposed Statement Drafted by the Political Advisers of the Military Governors to the President of the Parliamentary Council⁶

[Frankfurt, February 16, 1949.]

1. The Military Governors wish you to know that they and their advisers are examining the Draft Basic Law (Provisional Constitution) as accepted by the main committee of the Parliamentary Council at its third reading in order to determine how far it complies with allied requirements as described in the Aide-Mémoire of 22 November 1948.

2. In the course of their consideration of the Basic Law (Provisional Constitution) the Military Governors will have occasion to refer to their government such points as they may determine to be necessary. In considering their own program, the Parliamentary Council should be aware that this may occasion some delay.

3. The Military Governors will transmit their views in due course to the Parliamentary Council.

1. The minutes of this eighth meeting of the Military Governors, February 16, at Frankfurt, were transmitted in despatch 262, March 3, from Frankfurt, not printed (740.00119 Control (Germany )/3–349). A copy of the conclusions reached by the Military Governors (TRIB/C(49)2) is in CFM Files: Lot M–88: Box 140: TRIB Papers (49). For another account of the meeting, see Clay, Decision in Germany, p. 422.
2. For documentation on the London negotiations concerning the Occupation Statute for Germany, see pp. 1 ff.
3. Foreign Relations, 1948, vol. ii, p. 442.
4. For the text of the Report of the London Conference on Germany, June 1, 1948, see ibid., p. 309.
5. For the text of the letter of advice to the Military Governors, TRI/15 (Final), see ibid., p. 240.
6. For the text of this statement, with minor textual differences, transmitted to the President of the Parliamentary Council, February 17, see Documents on the German Federal Constitution, p. 108.