740.00119 Control (Germany)/3–449

The United States Political Adviser for Germany (Murphy) to the Director of the Office of European Affairs (Hickerson)

secret

Dear Jack: With reference to the attached memorandum of the meeting of the three Western Military Governors at Frankfurt on March 1, I feel that the result on the whole was a happy one which promises well for the future. The discussion of the provisions of the Basic Law started off in a rather difficult atmosphere by a statement from General Koenig with a reference to the London Agreement providing [Page 212]that the Basic Law would have a federal character and that the Military Governors were to determine whether the text was satisfactory in that respect. General Koenig said that, after an examination of the text, it did not take much time to appreciate that it is a federal document in appearance only—that it is hypocritically federal but actually centralist. With that as an opening statement, I began to fear that the chances of French approval were dim indeed. However, General Koenig continued on that, while the Military Governors could veto on the ground that it did not conform to the London Accord, he nevertheless suggested that the Military Governors not leave [let] the draft break down and that he would be willing to consider listing certain changes and modifications with the assurance that his government would be willing to consider them. For this purpose the report of the Political Advisers1 would provide a suitable basis.

At this point General Clay pointed out a feature relating to the present text—that there was no official text before the Military Governors and in view of General Koenig’s remarks it might be better to await a vote of the Parliamentary Council at Bonn. The Germans would then publish the document as an official text which would enable the Military Governors to benefit by the opinion of world constitutional experts. He suggested that the Germans be advised to vote their text immediately and the Military Governors would then examine it in accordance with the London Agreement. The discussions then would concern a public document. This suggestion was not happily received by Koenig, who said that such procedure would lead to a test of force between the Germans and ourselves and which would not be desirable. I think that General Clay’s suggestion had the effect of stimulating the French to a more conciliatory attitude which was apparent after they had consulted Paris by telephone.

Yours ever,

Bob
[Enclosure]
2

Memorandum by the Counselor of Mission at Berlin (Riddleberger) to the United States Political Adviser for Germany (Murphy)

secret

Subject: Military Governors’ Consideration of Draft Constitution.

The three Western Military Governors met three times in Frankfurt on March 1–2, 1949 and devoted the major part of their deliberations [Page 213]to an examination of the draft basic law as developed by the Parliamentary Council at Bonn. The Military Governors had before them at their first meeting on March 1 the report of the Political Advisers dated February 24 which was cabled textually to the Department in Frankfurt’s 144 and 145 of February 25.3 The draft constitution had been previously transmitted to the Department by your Frankfurt Office under date of February 12, 1949.4

General Clay opened the discussion on the Political Advisers’ report in stating that he thought the report was a good one which clearly expressed the differences between the Military Governors. Koenig at once replied in a statement which was severely critical of the draft constitution. He argued that under cover of federal appearance, the Germans have constructed a draft which completely opens the way for reestablishment of a highly centralized government. The work at Bonn was not sincerely federalist in nature and would be condemned by those who wanted a truly decentralized government. The Military Governors should therefore declare the Bonn draft incompatible with the London decisions and disapprove it. However, as Koenig did not wish to see an immediate break down, he was prepared to envisage amendments and corrections which might make possible acceptance of the constitution. He was also prepared to concentrate upon amendments to articles which, while few in number were essential to a federal state.

General Clay then reminded Koenig that as there was no official. German constitution before the Military Governors there are two ways of proceeding. The first would be to defer discussion until the Parliamentary Council formally submitted the constitution which would then be a public document and the Military Governors together with their governments would have the reaction of constitutional experts throughout the world on the work which had been done in Bonn. The Military Governors could then suggest that the Germans be told to finish their work and the discussion would be on a public document. Koenig stated at this point that while Clay’s principle was probably a good one it was not practicable in that it would lead to a test of strength between the Parliamentary Council and the Military Governors. Therefore, it was wise to move in a more conciliatory way and he would agree to discuss the report of the Political Advisers. Clay said that his second point would be a discussion of the report and that he was prepared to do so. He, however, reserved the right, if no agreement was reached by the Military Governors, to tell the Germans to go ahead and finish the constitution. Robertson agreed with Clay that the Germans have the [Page 214]right to continue but favored giving the views of the Military Governors to the Germans now if possible. He thought it would be tragic to reject the constitution and it must be remembered that the document would have to be ratified. If the Germans accepted modifications it would have a better chance of ratification.

This proposal of General Clay’s to have the Germans finish their work and publish the constitution obviously took the French by surprise and in my opinion was influential in modifying materially their negative attitude toward the document. The Military Governors then proceeded to discuss the report paragraph by paragraph. Koenig led off by making strong objections to Articles 36 and 36(a) of the constitution. The tenor of his argument was that there should be only two categories of federal legislation: (1) exclusive, as in Article 35, and (2) nominal, as in Article 36(a). Furthermore, Article 36 (a) should embody the formula devised by the Political Advisers for Article 36(2). General Clay responded that no government could operate under such restrictions. He could accept Article 35 and agreed that Article 36 lacked clarity and should be amended to give legislative powers on the matters enunciated therein when they clearly affect more than one state. General Robertson suggested that a compromise might be found by transferring the redraft of Article 36(2) to the head of the article and then combining Articles 36 and 36(a). After a somewhat extended discussion as to the effect of this it was eventually agreed that this compromise might be acceptable and the question was passed to the Political Advisers for drafting.

Paragraph 2 of the report respecting police powers was accepted in principle on the understanding that if the occupation authorities are ultimately responsible for security the powers in Article 118(c) cannot be exercised until specifically approved.

Consideration was then given to the question of financial powers. Koenig stated this was a most important subject and that he concurred in the suggestions of the Political Advisers with one reservation. He believed that the federal government should administer only federal taxes and not concurrent taxes which should be administered by the Laender even if the federal government takes over entirely concurrent taxes. He stated that if this proposal was acceptable, the French would abandon their reservation on occupation costs. Robertson strongly urged that the federal government should have the right to collect taxes which it legislates and that once it has decided to take over a concurrent tax it becomes a federal tax. Such was the provision of the Letter of Advice. At this point Clay proposed the formula which eventually led to agreement on the financial articles. He said that except in the field of excise, income, inheritance and gift [Page 215]taxes, all other concurrent taxes should be administered by the Laender. By skillful and persuasive argument, and with frequent reference to our own tax system, he eventually convinced Koenig that federal taxes should be administered by federal administration. He argued that the French desire to avoid federal tax administration could only lead to having the federal government interfere more and more in the financial affairs of the Laender in that it would be giving instructions to the Laender financial authorities on taxes over which it exercised jurisdiction. If the French wanted financial autonomy for the Laender they could not have it both ways by opposing federal administration of federal taxes while simultaneously opposing federal instructions to Laender finance administrations. It was far better in his opinion to segregate the taxes and let federal taxes be administered federally and state taxes administered by the Laender. Koenig eventually agreed to this line of argument subject to draft.

With respect to the independence of the judiciary the UK Military Governor was not entirely satisfied with Article 129(1) and wished to draw the attention of the Parliamentary Council to possible safeguards in connection with the dismissal of judges. After a short discussion this was agreed.

On the powers of the federation to establish its own agencies and the French reservation thereto, General Clay made a very cogent argument to the effect that there is less danger in [allowing] federal agencies to enforce federal law than there is allowing the federal government powers to give orders to the states. A long exchange ensued between him and Koenig in which Clay by drawing upon American precedence [precedents?] eventually succeeded in obtaining Koenig’s agreement to withdrawing the French reservation provided the drafting on Articles 36 and 36(a) was satisfactory.

With respect to civil service it was eventually agreed that if the Germans decided to retain Articles 27(b) and 62 in the constitution they must conform to the principles enunciated in the Aide-Mémoire. 5 The Military Governors do not insist, however, that the constitution contain such provisions as the question can be dealt with by legislation.

On the question of Laender reorganization, it was decided to repeat precisely what the Ministers President had been told on July 20, 1948 and to reiterate that the position is still the same.6 Incidentally, Clay informed Koenig in a meeting on March 2 that he intended to raise this question at the next meeting of the Military Governors in order to get [Page 216]a decision on what the Germans can be told respecting the Ministers President’s proposal on Wuerttemberg–Baden.

The debate then turned to a formula for Berlin. Koenig announced the French opposition to Berlin’s inclusion but indicated some desire to move for a compromise. Here again Clay came forward with a proposal which was eventually accepted and which is incorporated in paragraph 10 of the statement to the Germans. There was some discussion of how many Berlin representatives might attend but for the time being the question is left over. In any case it would not be more than what Berlin would be entitled to in proportion to its population. At this point the discussions on the constitution were concluded and it was arranged that the Political Advisers would meet in the afternoon to be followed by another session of the Military Governors in the evening on March 1.

At the evening meeting the Military Governors had before them a draft statement to be communicated to representatives of the Parliamentary Council which had been prepared by the Political Advisers. This statement was cabled to the Department by our Frankfurt Office on March 1.7 Additional discussion followed on paragraph 1 of Article 36 as redrafted by the Political Advisers. Koenig was still holding out for the French brackets and Clay suggested the compromise proposal which emphasized the right of the Laender to retain legislative authority in the fields listed except where the matter clearly involved more than one Land.

On the financial provisions, Koenig returned once more to the charge by claiming the federal power in concurrent taxes was still too large. Clay eventually obtained Koenig’s agreement by stipulating that the income tax would be administered by federal authorities to the extent that such a tax is for federal purposes. This compromise disposed of the financial provisions although Koenig was still protesting that too much taxing power was given to the federal government.

The other paragraphs of the statement were agreed to down to the final one dealing with Berlin. Koenig again balked at Berlin participation in federal legislature and it looked momentarily as if the discussion would break down on this point. Clay then stated that such participation was not prohibited by the London decisions but he was not disposed further to argue the matter. He proposed that the Parliamentary Council be informed that agreement could not be reached and the decision was up to it whether to adopt the constitution in plenary session. Faced with this statement, Koenig then said that he would not object to having a small number of representatives designated to attend. Clay stated he could accept “designated” but could not forbid [Page 217]consultation and pointed out that it would be difficult to prevent attendance in any case. Koenig promised an answer by midnight.

Following this evening session the Political Advisers reconvened on the morning of March 2 to prepare a clean draft of the statement to be communicated that same day to representatives of the Parliamentary Council, who had been advised the night before to come to Frankfurt. This draft was ready for consideration by 11 o’clock on March 2, 1949.8

At the meeting of the Military Governors Clay stated he was ready to accept the statement as a whole. Robertson was likewise prepared to do so but wished to clarify the interpretation of paragraph 10 on Berlin. He said that he wished no misunderstanding and that his position was that the number of representatives is not determined and the Berlin representatives can speak. His understanding of the French interpretation was that the Berlin representatives would not speak. If the Germans inquired about this, it was agreed that no definite answer would be given. The Military Governors then discussed the type of statement which Robertson would make if the representatives of the Parliamentary Council inquired whether the statement must be accepted in its entirety. The line that Robertson would take was reported from Frankfurt by telegram of March 2, 1949.

The Military Governors then discussed the question of the electoral law and their decision was likewise reported in the same telegram. The text of the electoral law was previously transmitted from Frankfurt.

J. W. R[iddleberger ]
  1. Transmitted in telegram 144, February 25, p. 207.
  2. Attached to the source text was another memorandum by Riddleberger, March 3, not printed, which reported the Military Governors’ discussion of Berlin currency, the Military Security Board, travel control, and the administration of Spandau prison.
  3. Telegram 144, p. 207; regarding telegram 145, see footnote 5 to telegram 144.
  4. Not printed; for the text of the draft constitution, see Documents on the German Federal Constitution, pp. 88–105.
  5. For the text of the aide-mémoire of the Military Governors to the Bonn Parliamentary Council, November 22, 1948, see Foreign Relations, 1948, vol. ii, p. 240.
  6. The minutes of the meeting between the Military Governors and the Ministers-President of the Western zones of Germany, at Frankfurt, July 20, 1948, are printed ibid., p. 403.
  7. Transmitted in telegram 178, March 1, from Frankfurt, not printed. (862.011/3–149)
  8. For the text of the clear draft, see telegram 183, infra.