Jeremy Varon (49 page)

(Info-Berliner undogmatischen Gruppen).
The paper, long an object of the right’s ire, contained writings by guerrilla groups and debates on violence generally. The verdict held that the accused necessarily identified with the proguerrilla writings because they were aware of their content; Agit-Druck insisted that it sought only to promote dialogue on the left about violence, which should in no way be equated with support for terrorism.28 The middle-aged publicist Walter Jens observed while testifying for the defense as an expert witness that “[t]he courthouse in Moabit

[Berlin], a dreary place from a forgotten time, looks like a fortress. . . .

And the people inside: police with machine guns, guards at every corner, and lawyers, who look like the bureaucrats from Franz Kafka’s
Trial.

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263

Are there murderers here? People guilty of high treason?”29 The “young people” he defended, “guilty” of publishing a newsletter, were sentenced to between nine and twelve months imprisonment, in addition to the months they served, as “security risks,” following their arrest.

Critics warned that censorship inhibited precisely the kind of dialogue that would permit the left and West German society as a whole to make sense of the current crisis. The most controversial censorship action spoke directly to this concern and raised the question of “sympathy”

for the RAF with unequaled intensity. On April 25, 1977, the newspaper of the University of Göttingen chapter of AStA (Allgemeiner Studierendenausschuss, a prominent national student organization) published

“Buback—Obituary”
(“Buback—ein Nachruf ”)
by an anonymous author using the American Indian name “Mescalaro” as a pseudonym. The

“obituary,” written shortly after the RAF’s assassination of Federal Prosecutor Buback, contained some of the most incendiary lines in the history of the Federal Republic. Its author confessed: “[M]y ‘shock’ following the shooting of Buback quickly emerged: I could not and would not (and will not) hide a feeling of clandestine joy
[ein klammheimlicher
Freude].
”30 Members of the media denounced the statement as “naked fascism” and the product of a “sick mind.”31 Politicians suspended the funds of the Göttingen AStA; the University Rector demanded a retraction; prosecutors ordered investigations of the publishers for possible breeches of sections 130 and 140; and police, sometimes bearing machine guns, raided AStA offices, assorted bookstores, and private homes to gather evidence.32

The Mescalaro crisis escalated when, in June, forty-three university professors and secondary-school instructors, along with five attorneys and a university official, republished the offending article. The “obituary,” they insisted, provided a critique of the RAF’s violence and intelligently questioned the norms establishing the acceptable range of thought and opinion. The “obituary” had concluded ambiguously,

Our goal, a society without terror and violence (if also not without aggression and militancy) . . . without “justice,” jail, and institutions (if also not without rules and regulations, or better “recommendations”), this goal does not justify every means, but only some. Our path to socialism (or, for me, anarchy) cannot be littered with corpses. . . . Our violence, finally, cannot be like Al Capone’s . . . not authoritarian, but anti-authoritarian, and for that reason more effective. . . . To develop an idea and a practice of violence/

militance which is joyous
[ fröhlich]
and which has the blessings of the masses, that is the task at hand.33

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The University of Hannover’s Peter Brückner, already suspended once from teaching because of his alleged support for the RAF, took the lead in arguing the statement’s merits.

Public officials, especially Berlin’s Senator for Science and Research Peter Glotz, rejected any favorable assessment of the “obituary.” Glotz felt it provided “frightening insight into the moral, spiritual, and psychic makeup of a portion of the university population” and, observing the rash of pro-RAF graffiti and radical activism on campuses, worried that “every fifth [student] thinks something like Mescalaro.”34 In a letter in
Die Welt,
he demanded that the professors “distance themselves”

from the statement or leave their posts. “Fight this state, if you think that is necessary,” he chided, “but don’t do so while drawing a state pension.”35 The professors refused to back down. Glotz’s challenge to them was more than rhetorical. The
Berufsverbot,
passed in 1972, permitted the removal of civil servants, which included university professors, if they supported organizations deemed enemies of the constitution. Invoking this measure, authorities once again suspended Brückner from his professional duties.36

At stake in the battles over censorship was much more than the status of individual civil liberties, such as freedom of expression, in the Federal Republic. These liberties were integral, not only to the establishment of a constitutional state with legally guaranteed rights in postwar West Germany, but to the larger project of creating a genuinely democratic public sphere—a set of conversations and relations within civil society that were free from the encroachments of the state. That sphere, moreover, was a space for the kinds of critical self-reflection necessary for the healthy functioning of a democracy. In the 1970s, the state’s critics charged that censorship, by preventing dialogue about difficult topics like violence, seriously weakened West Germany’s public sphere and its vital democratic functions. The state and its defenders countered that a public sphere that sowed the seeds of its own destruction scarcely served the cause of democracy. No external power existed to break this stalemate, in which each side claimed to be the true champion of democracy.

Pragmatic considerations ultimately settled this conflict of principles, at least insofar as the fate of particular antiterrorist policies was concerned.

By focusing intense criticism on the state itself and further polarizing West German society, sections 188 and 130 proved so counterproductive that they were rescinded by the Bundestag in 1981.

.

.

.

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Demagogues in lawyer’s robes.

Roland Friesler, president of the Nazi

Volksgerichtshof (“People’s Court”)

The journalist Gerhard Mauz prefaced a booklet authored by the RAF’s principal attorneys, who had been thrown off their cases just before the start of the long-awaited RAF trial in May 1975, with the lament, “Germans have no talent for criminal defense. They much prefer to accuse, and most of all to judge.”37

The RAF’s attorneys were in an unenviable or even impossible position—one at the center of the controversies over the legal battle against the RAF. They were pledged to defending clients who boasted of having committed acts that the state defined as serious crimes, and who did not recognize the legitimacy of the court that set the rules within which the attorneys had to operate. The attorneys thus faced a dilemma: to reject those rules was to imperil their ability to be of any service to their clients; to accept the rules was to risk alienating their clients so thoroughly as to render any coordinated defense impossible.

The state’s overall strategy created the greatest problems. On the one hand, prosecutors and judges treated the RAF’s actions as conventionally criminal offenses whose political motives were irrelevant to the case. The RAF was therefore barred from using the courtroom to put U.S. imperialism, the West German state, and the criminal justice system itself on trial, as it had wanted to do. On the other hand, the state appeared to use the RAF’s politics as a reason to abridge, deviate from, and even dispense with the standards of due process governing normal criminal trials.38 Faced with this double bind, the lawyers were virtually precluded from mounting any defense, and even to work with the RAF was to risk being suspected of criminal activity.

Some of the earliest and most controversial antiterrorist laws targeted the RAF’s attorneys and the group’s legal defense more generally. In 1972, the attorney Otto Schily was removed from Ensslin’s defense on suspicion that he had smuggled a note of hers out of prison. A court eventually reversed Schily’s exclusion, ruling that it lacked statutory grounds.39

The Bundestag soon provided legal means for the removal of lawyers.

In December 1974, it passed the so-called “Lex RAF,” a series of laws focusing on the legal defense of suspected terrorists. The passage of the laws, which amended the Code of Criminal Procedure (Strafprozeßordnung), was no small event in the history of the Federal Republic. Since the inception of the republic, there had been no significant changes in 266

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the Criminal Code—which Justice Minister Hans-Jochen Vogel called the “Magna Carta of the Rechtsstaat”—until the early 1960s, when a process of liberalization began that brought the steady expansion of the rights of the accused and the powers of their attorneys. The Lex RAF

represented the first time the code had been altered to restrict those rights and powers.40

One provision of the Lex RAF, “defender exclusion”
(Verteidigerausschluß),
made it possible to remove defense attorneys from their cases and suspend their professional privileges if they were “suspected of having participated in the crime forming the basis of the investigation, or of having committed any act that in the case of the defendant’s conviction would be aiding and abetting, impeding the process of the law, or concealing a crime.”41 Suspicion of “endangering the security of the state”

and “misusing [the] right of contact” with imprisoned clients were additional grounds for exclusion.42 The police, the prosecutors, the court, and the ethical court of the German bar could all initiate the exclusion, which the regional or federal court then ordered.43 Actual evidence was not required for the removal of attorneys; suspicion was sufficient.

Another law within the Lex RAF barred lawyers from having more than one client in a single trial, thereby hindering the RAF’s plan to mount a joint political defense of itself as a unified
group.
Given its strong collective ethos and insistence that the identity of the individual guerrilla was inseparable from that of the group, the RAF regarded this as an egregious constraint—one that denied it its fundamental self-understanding. Subsequent laws permitted the inspection of materials passed between clients and their lawyers and expanded the means by which lawyers, under sections 129 and 129a, could be linked to terrorist organizations.44 Police periodically raided lawyers’ offices as part of criminal investigations.

The state made frequent use of its newly expanded legal arsenal. In March, April, and May of 1975, the attorneys Claus Croissant, Kurt Groenewold, and Hans-Christian Stroeble were removed under the
Verteidigerausschluß
provision from the defense of Baader, whose trial (along with those of Ensslin, Raspe, and Meinhof ) was to begin in late May. (The defendants participated in a single proceeding in the Stammheim courtroom but technically stood trial as individuals, with separate attorneys.) In June, Croissant and Stroeble were actually arrested under section 129 for alleged support of a criminal association, and their law offices were raided. Groenewold was barred from professional service under the
Berufsverbot
in June, with the ruling upheld under appeal in

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December.45 The lawyers appointed by the court to serve in Croissant’s, Groenewold’s, and Stroeble’s places lacked the trust of their clients and had little time to prepare for the complex trial. At the commencement of the trial, Baader had no lawyer of his choosing; he and the other defendants variously ignored, berated, and demanded the dismissal of the

“compulsory defenders.”46 When the hunger-striking defendants became too weak to attend day-long court sessions in September 1975, the court invoked another provision of the Lex RAF, section 231, permitting the continuation of the trial in the absence of the defendants, since they had, in the opinion of the court, voluntarily made themselves physically unfit.

This measure struck at the heart of the grievances of the prisoners, who insisted that far from being voluntary, the hunger strikes were the only means left to them to improve prison conditions they equated with torture. As a result of the law, passed in anticipation of the RAF proceedings, the most important trial in West Germany’s history other than the prosecutions of former Nazis proceeded not only without proper defense counsel but, at times,
without the defendants themselves.

The state claimed that the purpose of the laws targeting attorneys was to hinder the ability of the RAF to commit additional crimes and to weaken the networks of support considered indispensable to its continuing vitality. Concerns about the attorneys’ conduct were hardly without merit. The RAF lawyers ran the so-called Info-system, through which they smuggled messages between prisoners and to the outside world. With the meticulously run system, RAF inmates were able to maintain an internal hierarchy, engage in coordinated actions such as hunger strikes, and to some extent orchestrate the activities of their supporters.47 In deeper ways, the RAF’s lawyers played a critical role in sustaining the group’s public voice. In the mid 1970s, the attorneys, the Committees against Torture they ran, and legal aid centers such as Rote Hilfe were the main vehicles through which RAF propagated its ideology, publicized its battle against prison conditions, and developed support (however limited) among the public. In an important sense, the RAF existed as a political group by virtue of the lawyers’ mediation.

Finally, and most dramatically, new guerrilla cells formed from within the lawyers’ offices. Croissant’s law practice was a virtual hotbed of illegal activity.48 In the 1960s, Croissant had been a successful inheritance lawyer in Stuttgart. In 1971, his junior partner, Jörg Lang, began bringing political clients, including RAF members, to the firm. Croissant quickly transformed into a radical, deeply committed to defending the far left. Lang went so far as to provide safe houses and logistical support 268