Foreign Relations of the United States, 1969–1976, Volume XL, Germany and Berlin, 1969–1972

29. Memorandum From Helmut Sonnenfeldt of the National Security Council Staff to the President’s Assistant for National Security Affairs (Kissinger)¹

Washington, October 1, 1969.

SUBJECT

• The Vote of the Berlin Deputies in the Bundestag: Nasty Decision
• May Be Facing US

As I have previously mentioned to you, we may soon be confronted with handling the delicate question of the voting rights of the 22 Berlin deputies in the Bundestag. The matter can come up either as a fait accompli by the Germans or as a German request to the Allies to reverse past Allied decisions. Assuming successful SPD/FDP coalition negotiations (the matter would probably not arise if they fail), it could come up either before the new Bundestag convenes October 20 because Brandt wants to pad the coalition’s majority in the vote on the Chancellor; or it could come up later because Brandt wants a larger working majority. No operational decision is required until the Germans move; but I want to flag the problem for you now because our choice, whenever it has to be made, is complicated by problems of inter-allied relations, our relations with the German political parties and relations with the Soviets.

At Tab B is a paper with background and a brief discussion of some of the elements, pro and con, in a US decision on this matter.

At Tab A is a memo to State telling them that any decision on this subject should be cleared in the White House.

Recommendation:

That you urgently sign the memorandum at Tab A.²

Tab B

THE VOTE OF THE BERLIN DEPUTIES IN THE BUNDESTAG

Present Situation

In accordance with a twenty-year old Allied position, the Berlin deputies in the Bundestag have never voted on substantive matters. An SPD/FDP coalition may bring great pressure on the Allies to change this traditional position, since the addition of the Berlin votes would provide the coalition with a more workable and stable majority. The coalition has a paper deputy strength of 254 (249 is an absolute majority); if the 22 Berlin votes were included, the coalition would have 268, and the absolute majority would be 259.

History

In order to preserve Berlin’s special status and the Allied rights and obligations in Berlin, the Three Powers in 1949 approved the formation of the FRG with the express reservation that “Berlin may not be accorded voting membership in the Bundestag … nor be governed by the Federation.” Berlin was permitted to designate representatives (not directly elected) to the Bundestag.³ A similar reservation was added to the Berlin Constitution.⁴ This position was affirmed in 1955 at the end of the Occupation Regime. Over the years the Allied injunction has been interpreted in the Bundestag so as to permit the Berlin deputies to vote on procedural matters, in committees and on draft legislation but not on final readings.

Recent Activity

On September 16, the three Ambassadors in Bonn informed the Foreign Office that the Allied position remained unchanged.⁵ Just after the election, the Chancellor’s office (Osterheld) asked whether the SPD had approached the Allies regarding the use of the Berlin votes in the formation of a new government.⁶ Reporting we have received no such approach, we again affirmed our position. Osterheld said that, quite aside from the Allied views, Kiesinger considered voting by Berlin deputies a violation of the Basic Law. Yesterday, the SPD party manager (Wischnewski) told the British that the election of the Chancellor without Berlin votes would pose no problem, although for subsequent stability Berlin votes would be needed for legislation. On an if-asked basis, our press guidance is that the Allied position is known; there has been no change.

Possible Future Actions

Notwithstanding Wischnewski’s comment, the President of the Bundestag might present the Allies with a fait accompli by counting the Berlin votes in the investiture vote for Chancellor. More likely, the new government might ask the Allies to change their position so that Berlin votes could be counted for subsequent legislation. The request may come at any time.

Allied Views

The British will hold fast to the view that there can be no change during the life of the present government, but would be willing to reconsider any proposal of the new government. They will probably be inclined to assist Brandt in strengthening his government in any way that will not seriously undermine the Allied position in Berlin. The French are apt to be tough. They have always strongly resisted any action which might weaken them in Berlin, and they may not want Brandt (whom they may consider a rival in the East) to be too strong.

Communist Views

The Soviets may be in an awkward position. They will want to help a Brandt/Scheel government, but cannot accept a strengthening of the Bonn–Berlin ties. Ironically, the Soviets have continued to ensure that the East Berlin representatives in the Volkskammer have a status different from the other deputies, and GDR legislation still does not automatically apply to East Berlin (as FRG laws do not automatically apply to West Berlin). The GDR will certainly bring pressure to remove these last vestiges of a special Berlin status. The Soviets, more importantly, may have difficulty understanding an Allied change in long-standing Berlin voting rights policy in the context of the Tripartite Soundings on Berlin. Privately, the Allies have raised for the Soviets the possibility of reducing Federal presence in West Berlin, yet publicly the Allies would be permitting a fuller incorporation of West Berlin into the FRG.

US Choices

We do not have to make any operational decisions at this time. It is important, however, to begin thinking about it. While it is impossible now to play out the various contingencies (e.g., request now or later, being faced with a fait accompli), the arguments with respect to a change in the Allied position seem to be about balanced:

Pro

• —Particularly if the new government insists on having the Berlin votes, a change in our position would be a favorable gesture to Brandt, thus putting us in a better position to have a positive influence on the course of our future relations.
• —A change might give us a better bargaining position with the Soviets in any negotiations over Berlin.

Con

• —A change in the US policy would weaken the integrity of our long-held view of the special status of Berlin, and might present the risk that the Soviets would retaliate by causing some harassment in Berlin and on the access routes (especially for German traffic).
• —To change our policy might cause us difficulties with the French, and to a lesser degree, with the British.
• —It might lay us open to charges that we are intervening in German domestic politics, and seriously offend the CDU.

1. Source: National Archives, Nixon Presidential Materials, NSC Files, Box 682, Country Files, Europe, Germany, Vol. III. Confidential. Sent for action. According to another copy, Downey drafted the memorandum on October 1. (Library of Congress, Manuscript Division, Kissinger Papers, Box CL 2, Chronological File, 1969–75, 1 July–31 Oct. 1969)
2. Tab A, a memorandum to Acting Secretary of State Richardson, is attached but not printed. In an undated note to Haig regarding the memorandum, Sonnenfeldt wrote: “This ought to have prompt attention. Maybe Tab A can stay here & HAK can phone in approval from Florida. The matter may precipitate rapidly.” Sonnenfeldt also attached an intelligence report he had just received on “the SPD’s intention to press this issue.” (National Archives, Nixon Presidential Materials, NSC Files, Box 682, Country Files, Europe, Germany, Vol. III) Haig agreed to send the memorandum while holding the background paper (Tab B) “so that Dr. K can take with him on trip to Key Biscayne.” (Undated handwritten note from Haig; ibid.) Before leaving for Key Biscayne on October 2, Kissinger signed the memorandum (Tab A) which reads in part: “In the event that we should have to make a decision on the question of the voting rights of Berlin deputies in the new Bundestag, the President would like to have an opportunity to review the proposed US position.” (Ibid., RG 59, Central Files 1967–69, POL 15–2 GER W) Richardson, however, received the memorandum after approving instructions to Bonn on the issue. (Note from Eliot to Rogers, October 6; ibid., POL 14 GER W) Regarding these instructions, see Document 31.
3. The Allied refusal to allow Berlin deputies to vote in the Bundestag was first made on March 2, 1949, in a communication to the Bonn Parliamentary Council as it was drafting the Basic Law. On May 12, 1949, the Allies reaffirmed this decision while approving the Basic Law with certain other reservations. (Documents on Germany, 1944–1985, pp. 204–206, 260–262)
4. The Allies informed the German authorities in West Berlin of this decision on August 29, 1950. (Ibid., pp. 340–341)
5. As reported in telegram 12233 from Bonn, September 17. (National Archives, RG 59, Central Files 1967–69, POL 38–6)
6. Sonnenfeldt mentioned the conversation between Osterheld and Fessenden in a September 29 memorandum to Kissinger. (Ibid., Nixon Presidential Materials, NSC Files, Box 682, Country Files, Europe, Germany, Vol. III) Osterheld, however, had raised the issue in early September; Fessenden reported on the meeting only after the election. (Telegram 12788 from Bonn, September 29; ibid., RG 59, Central Files 1967–69, POL 14 GER W)