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

315. Information Memorandum From the Acting Assistant Secretary of State for European Affairs (Fessenden) and the Acting Legal Advisor (Brower) to Secretary of State Rogers¹

Washington, August 23, 1971.

CONSULTATION WITH AMBASSADOR RUSH ON THE BERLIN AGREEMENT

In accounting in Bonn 10262² (Tab A) for his decision to agree to submit to governments on August 18 the text of a quadripartite agreement on Berlin, Ambassador Rush states that he cannot understand why signals were changed at the eleventh hour, without basis and without consulting him. He cites paragraph 5E of State 136539 of July 28, 1971³ (Tab B) to show that it was clearly understood that any agreement reached in the “marathon session” would be ad referendum to governments and would neither be initialed nor signed without government approval. He also states that for him not to have given his approval to the text ad referendum would have opened the credibility of the United States Government to question and would have antagonized friendly governments and aroused Soviet distrust.

State 136539, which provided guidance on the timing of further meetings, provided (paragraph 5) for an Ambassadorial meeting on August 10 and 11 “to be followed by a pause for reflection if major points of difference cannot be overcome at that time.” Specifically, the Department provided the following instructions: “Sufficient flexibility should be maintained in arranging the Ambassadorial meeting to permit, if necessary and sufficient progress is being made, a day’s interruption for consultation with capitals on points where existing guidance is inadequate.” The Department also stated:

“… the history of postwar period has shown that we have had the least difficulties where the language of agreements has been most precise, as for example on the air corridors, military traffic on the Autobahn and the railroads, and the sector boundaries of Berlin.”

When the negotiations continued into the next week you instructed the Ambassador as follows in State 148742⁴ (Tab C): “The Western side should take full advantage of this Soviet interest to obtain the best possible terms as defined in the guidance which the President and the Department have provided…. I believe it will be better to hold out long enough on each issue—even on each detail—to be sure we are achieving the maximum in improvements in the situation…. Having come this far, the Western side will profit by taking the final steps with all due deliberation.” The Ambassador accepted this guidance and replied on August 14: “We will take all the time necessary to achieve the maximum in improvement.” (Bonn 10007, Tab D).⁵

Further negotiations were held on August 16 and 17. Reports from the field,⁶ both those received directly from the US Mission in Berlin and comments received from other Embassies, indicated a confused situation where a number of important points had not yet been resolved.

There were several inquiries about these negotiations, including one from the White House taking critical note of the failure of the Mission to provide early telegraphic reporting on the negotiations.

On the morning of August 18 the Department learned by telephone from the Mission that the Ambassadors were again in session and had nearly completed agreement on a text for referral to capitals ad referendum at the close of the session in progress. The Mission, upon request, informed the Department as to the contents of the text on which agreement was being reached. It was immediately clear that this text would not be in accord with a number of provisions of NSDM 106 and NSDM 125.⁷ Under these circumstances Department officers felt obliged to draw to the attention of the principals of the Department that (a) an agreement with the Soviet Union was at that moment being drawn up ad referendum and (b) the agreement, whatever advantageous elements it might contain, would not meet the guidelines established by the President and the National Security Council. Department officers were obliged to do this on the basis of telephoned information since no telegraphic reporting was sent, even though the Department had requested that texts already available in Berlin be sent by immediate precedence cable. (The texts, when received, confirmed that their provisions failed in several respects to conform to the Presidential guidance.)

It was on this basis that you agreed to ask Ambassador Rush not to give his agreement to the draft until the Department had an opportunity to review the results of the negotiations and possibly to have consultations with the Ambassador in Washington (State 151368, Tab E).⁸ Since the Ambassador was in the concluding phase of the negotiating session, there was no way to consult him at this stage. There was no eleventh hour change of guidance by the Department.

While the Ambassador might argue that the texts had been agreed only ad referendum to governments, he is well aware of and has quoted Foreign Minister Scheel⁹ on the practical difficulty of making any important changes in a text agreed ad referendum with the Soviets, especially when extensive press leaks would have to be anticipated. To make further changes after that point had been reached could do more harm to the Ambassador’s own prestige than would have been the case had he reported his problem to the Department together with a recommendation that in spite of the fact that the anticipated text did not meet all of the terms of the guidance he had received, he desired permission to agree to it ad referendum as the best text he could achieve.

We do not expect the Ambassador to pursue this subject in his discussion with you nor do we suggest that you raise it. We provide the information only for your background—for contingency purposes.

1. Source: National Archives, RG 59, EUR/CE Files: Lot 80 D 225, Aug 23, 1971, Memos to the Secretary. Secret; Nodis. Drafted by Skoug on August 22.
2. Document 307.
3. Attached but not printed. Another copy is in the National Archives, RG 59, Central Files 1970–73, POL 28 GER B. See footnote 5, Document 271.
4. Document 288.
5. Document 289.
6. See Documents 293 and 295.
7. Documents 225 and 285.
8. Document 297.
9. In a meeting with Rush on August 20, Scheel maintained that “in his limited experience, once the Soviets reached this stage in negotiating, they did not accept change and it was therefore unwise to reopen an agreed package.” (Telegram 10316 from Bonn, August 20; National Archives, RG 59, Central Files 1970–73, POL 28 GER B)