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

CFM Files: Lot M–88: Box 121: File—Occupation Statute, Cables: Telegram

The United States Military Governor for Germany (Clay) to the Under Secretary of the Army (Draper)¹

secret
priority

[Berlin,] August 19, 1948.

CC–5604. To Dept of Army personal for Under Secretary Draper from CINCEUR signed Clay. We have agreed with the British and French to start working party on preparation of occupation statute.² We expect this to be a long process which will be influenced by the provisions of the German Constitution. In our view the occupation statute should be kept as short as possible if the German Constitution is fully satisfactory.

1. We propose a short preamble and then to list the broad objectives of the occupation to establish a just and lasting peace based on free political institutions; to prevent renascence of militarism and mis-use of economic resources for aggressive purposes; and to assist Germany’s integration with the Democratic Forces of a European Economic and Political System.

2. To accomplish objectives occupation statute will provide that German legislation must preserve the democratic freedoms under a federal system in which the Federal Government is limited to established constitutional powers; establish educational and public employment systems which guarantee equal opportunities; and provide for the renewal of political mandates by popular ballot. Trade Unions must be subject to principles of responsible leadership with financial and organizational autonomy for member unions within any federation. Non-Governmental organizations must not be permitted to exercise Governmental powers or to act in restriction of trade.

3. We will then state the German people may conduct their own affairs without interference, subject to the general objectives and specifically reserved powers. Otherwise, local, state, and federal Governments will be free to exercise legislative, executive and judicial powers. German courts will have full jurisdiction over German Nationals except for violation of International Law, Military Government Legislation and crimes against members of the occupation forces. In latter fields German courts will be given concurrent jurisdiction which can be exercised, however, only if Military Government approves. Military Government will reserve jurisdiction over members of occupation forces and displaced persons. German laws will come into force automatically within 21 days after their submission to Military Government unless disapproved by majority vote of Military Governors.

4. We will next list powers reserved to Military Government to include conduct of Germany’s foreign relations, exercise of minimum control over German foreign trade and exchange and over internal policies and measures which affect foreign trade; exercise of the controls necessary for reparations, decartelization, disarmament, demilitarization, scientific research and Ruhr authority; protect the prestige of occupation forces; to satisfy agreed requirements of occupying forces; to insure the observance of the federal constitution; to complete restitution and to continue responsible for displaced persons. The rights to veto conflicting legislation and the jurisdiction of Military Government Courts will be reserved.
It is proposed to keep these provisions in occupational statute in general terms if possible, as they will become less and less as and if the German Government accepts proper responsibility. Details will be covered in appropriate Military Government legislation.

5. Military Governors will also reserve right to observe, advise, and assist both Federal and State Governments in the democratization of political life, social relations, and education, but without a restriction of competence accorded to Land and federal Governments. The right to reassume full authority for security, because of failure to comply with the constitution, or defiance of reserved powers, will be reserved Military Government legislation will be revised and codified to continue only in the reserved fields as soon as it can be replaced by German legislation.

6. Military Governors will guarantee protection of individuals against unreasonable search, seizure and arrest, etc. Occupation costs will be limited as will powers of requisition. The occupation statute will be binding upon Military Government and all unilateral, bilateral or trilateral Military Government actions conform therewith.

7. I propose to sponsor a high court composed of selected judicial representatives from each of the three occupying powers and of two eminent German jurists to which appeals could be taken by the established German Government against decisions of Military Governors which Germans believe in conflict with the occupation statute with the majority decision of this court binding upon Military Governors. I recognize this provision to be a substantial abnegation of authority. However, I believe it only fair that there should be an independent judicial review to prevent arbitrary decisions and to give the German Government the confidence necessary to carry out its obligations under the occupation statute. It seems to me that the time has come to establish a real check on the powers of the Military Governors. I rather expect that this particular provision may not be liked by some of our colleagues. To my mind it is essential to insure the success of our program.

8. I realize that we have given you a rather broad outline. Nevertheless, in view of protracted negotiations (particularly in the absence of the German Constitution) it seems inadvisable to go into further detail at this moment. Therefore, US representatives of the working party are to be instructed in these general terms except as modified by your views and/or instructions.

We would appreciate your suggestions now and from time to time. Also, we particularly desire to receive as soon as possible any binding instructions so that our representatives may be governed accordingly and so that the final draft to be submitted to Government will not contain anything contrary to basic US policy.

[ Clay ]

1. The text of this message was transmitted to the Department of State by Ambassador Murphy in telegram 2121, August 23, from Berlin, not printed (740.00119 Control (Germany)/8–2348).
2. In mid-August the United States, United Kingdom, and French Military Governors for Germany agreed to establish a Tripartite Committee on the Occupation Statute. The Committee consisted of Edward Litchfield (U.S.), R. A. Chaput de Saintonge (U.K.), and Maurice Sabatier (France).