862A.501/12–1950: Telegram
The Acting United States High Commissioner for Germany (Hays) to the Secretary of State
5092. Reference HICOG Frankfort 407, December 6 and Department 4310, December 14.1
In attempting establish force in Laender as authorized New York decisions subject to use by Federal Government under Article 91 Basic Law, Laender not able to fully finance and Federal Government (Finance Ministry) unwilling to finance unless Federal Government had substantial powers and controls. Administrative agreement between Laender and Federal Government gave substantial powers to Federal Government including taking over immediate and continuing operation of total of 1800 men (later to be extended to full 25 percent of force of 10,000 or 30,000, which ever strength eventually adopted). This (and perhaps some other of the rather broad federal powers) obviously not constitutional since no present or continuing emergency as visualized in Article 91 exists. Doubtful whether this immediate assumption of control was contemplated by New York decisions which [Page 734] authorized Laender to maintain 25 percent of forces in state of readiness. Laender objections to the administrative agreement were based on objections to these powers which they consider unconstitutional. NEW2 accepted agreement with understanding any forces stationed NEW—specifically in Bonn area—would be under NEW control and not federal control except when action taken under Article 91. Niedersachsen Bremen and Hamburg have not accepted agreement. SPD and other parties insistence on amendment Basic Law based on conclusion Federal Government could exercise no power or control over forces under present provisions Basic Law until actual emergency justified under Article 91.
As foregoing indicates, intention of Federal Government in amending Basic Law is to enable creation of completely Federal mobile police force instead of creation of Laender forces authorized New York decisions. Size and deployment would be at discretion Federal Government, and use made of force would be decided by Federal Government even to extent intervention Laender affairs when emergency was imminent but when no real emergency existed. However this action must be discontinued at any time on the demand of the Bundesrat.
It may be noted that there has been less insistence upon urgency of need for special internal security forces since Laender police demonstrated their adequacy to combat communistic inspired disorders during September–October period, and since serious discussion creation German military forces. Also related to this question is intention of Federal Government to create Federal border police of possible 25,000 strength with responsibility of controlling illegal border crossing and any disturbance threatening security in the border areas. Creation of federal border police force was contemplated in Basic Law Article 87 and in allied letter approving Basic Law.
Federal Government continues insistence on necessity providing its own protection, free of dependence upon Laender, for the seat of Federal Government, Bundestag and Bundesrat, and President. We see no objection to constitutional amendment authorizing small federal police force for this purpose or giving this responsibility to the proposed federal mobile force.
We agree with viewpoint that constitutionality of present arrangements for Laender mobile forces open to serious question. We also agree with viewpoint that forces capable of being effectively used by Federal Government in real emergency not likely to be provided by Laender because of difficulty in financing and because probable reluctance of individual Land to relinquish control to Federal Government.
[Page 735]We favor Allied agreement to constitutional amendment which would authorize creation of a federal force which would have no normal police or law enforcement functions and no police powers except that of arrest where force authorized to act, which would not be used to augment or replace normal police in Laender except upon specific request of Land concerned or when federal intervention is justified by catastrophe or existence of disorder constituting actual threat to security of Federal Republic, and its use under such circumstances to be limited to period of emergency and subject to discontinuance on order of Bundesrat.
Amendment proposed by Federal Government would not be entirely acceptable since it does not contain all the restrictions we consider desirable.
Question confronting HICOM is whether need to resolve dispute over establishment emergency police forces is great enough to outweigh the previous decision taken at New York not to approve establishment federal force. In our opinion it is and subject to the Department’s approval we propose seek tripartite agreement to notify Federal Government in what respect the constitutional amendment must be changed to contain safeguards discussed above in order to meet Allied approval.
Question then must be answered whether if suitable changes not made HICOM will disapprove amendment or accept in present text. In event Bundestag unwilling to accept proposed changes HICOM could still insure desired safeguards while approving present text amendment by issuance letter of instructions based on reserved powers in security field which would be binding on German authorities as long as reserved powers continue in effect. We recommend this course as alternate.
Sent Department 5092. Repeated information Bonn 121.
- Neither printed; the former transmitted the texts of amendments to Articles 73, 87, and 91 of the Basic Law about which the Bonn political leaders were anxious to obtain the reaction of the High Commission and the Department of State; in the latter the Department stated that the intent of the Federal Republic was unclear, but it seemed that the Federal Government was again attempting to create a Federal police force, this time by constitutional amendment. (762A.00/12–650 and 802A.501/12–1450)↩
- Nordrhein-Westfalen.↩