762A.0221/4–1452: Telegram

No. 17
The United States High Commissioner for Germany (McCloy) to the Department of State1

secret priority

2371. Re CINCEUR’s SX–4215, to Bonn, rptd Dept of Army, Apr. 11.2

Difficulty in obtaining EUCOM’s position re pre-emergency powers due to fact that any statement of right of commander to take such measures as he deems necessary or advisable to secure troops involves potential take-over of govt functions as well as lesser measures. We have sought unsuccessfully to employ language limiting character of measures and we have concluded that it is the concept rather than the language which presents the difficulty. In effect, EUCOM’s concept means continuation of the occupation statute. This we have, insofar as pol realities permit, through the emergency clause whereby limited or full emergency can be declared, but Gers argue we cannot expect to have what are in effect the same powers provided for in the emergency clause repeated in another clause irrespective of an emergency. We have been able to obtain the statement of extensive security powers and when we bear in mind that the power of self-help exists and is not [Page 29]expressly excluded in the event the promised cooperation shld fail, my feeling is we have a good position.

To repeat we have: (1) The emergency clauses and the strong leverage the threat of calling into effect these clauses wld have in the event of any recalcitrance; (2) The right reserved to the commanders in the case of immed self-def (Par VII, Art 5); (3) The obligation of the gen convention imposed on the FedRep to cooperate with the allied forces in the execution of their def mission; (4) The manoeuvre and exercise clauses quoted in our 2322 to the Dept;3 (5) The new pre-emergency proposals which provide that in case of secret or security need the forces can themselves erect or adapt any necessary installations after prior consultation, and we have the provision that in special situations “mil and civil measures of protection can be implemented by the forces and the Ger auths efficiently and without delay”. (I read this to mean “both by the forces and the Ger auth”) conceding that the emphasis is on Ger cooperation in the new clauses rather than on a reserved right the latent right to act either through the emergency clauses or after failure of cooperation by direct action remains. Due to reduced personnel we are now largely dependent in fact upon Ger cooperation if we undertake to assume large powers. Moreover, given the existing situation in relation to Ger Govt, we are in effect compelled, and it is to our advantage politically to act in cooperation with FedRep subj only to the case of an emergency for which we have provided.

In short, under our whole pol scheme for Ger contribution this emphasis on cooperation is advisable and better adapted to our objectives even though we do at the same time hold the right and power to act in the event of emergency or non-cooperation. In the case of the emergency declaration there is no arbitration provided. In the additional pre-emergency clauses the emphasis upon cooperation renders arbitration inappropriate in the usual situation. To provide specific exclusion of recourse to arbitration from these clauses wld be pol diff to achieve and conceivably unwise as, in certain circumstances it might be useful to have recourse to arbitration ourselves in event failure to cooperate in non-emergency periods did occur.

As this is one of the very important points still outstanding as time is running out and as we have recd strong indication that we [Page 30]shall not gain any support for more extensive powers from our allies, I urge Dept to seek Defense’s prompt concurrences.4

McCloy
  1. Repeated to Heidelberg and SHAPE.
  2. Telegram SX–4215 reported that EUCOM believed it was necessary to insure in the contractuals the authority of military commanders to take preemergency action to provide for the security of their forces. EUCOM maintained further that this authority should be in the form of a reserved right and not subject to arbitration. (CFM files, lot M–88, box 192, “Convention—Rights and Obligations of Foreign Forces, etc.” (SPCOM/P (52) 6))
  3. Telegram 2322 transmitted the text of a proposal by Adenauer which was designed to satisfy EUCOM’s request for authority to take preemergency measures. (762A.0221/4–952)
  4. On Apr. 25 McCloy was informed that the Department of Defense still attached great importance to having the authority to take preemergency action, but recognized that in certain instances political considerations might be overriding. Since Article V of the general convention gave the military commanders the right to act, McCloy was authorized to accept the German proposal (telegram 2322) if he became convinced that the Germans would not agree to the position taken by CINCEUR. (Telegram 2766 to Bonn, 762A.0221/4–1452)