Jeremy Varon (50 page)

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to RAF members still at large. After being arrested and released on bail in 1974, he vanished, insisting in a letter to the Supreme Court that “only in the underground” was it possible “to carry on the antifascist struggle.”49 Lang was later sought in connection with the Buback, Ponto, and Schleyer murders.

The RAF attorney Siegfried Haag joined the underground in 1975 and became a leading figure in the RAF’s second generation. He assembled the “commandos” who raided the German embassy in Stockholm in May. Among them was Wolfgang Hausner, who several months earlier had reported to Croissant by order of the court after serving a three-year sentence for building bombs. Hausner killed two people in the raid and was himself fatally wounded. Elisabeth van Dyck, also an assistant in Croissant’s office, helped plan the action. While working for Rote Hilfe in Frankfurt and then for Croissant in Stuttgart, Hans-Joachim Klein was secretly a member of the Red Cells. He chauffeured Sartre when he visited Baader in Stammheim in December 1974. A year later, Klein participated with the notorious international terrorist “Carlos” in the bloody attack on an OPEC meeting in Vienna.50 In light of these activities and affiliations, the RAF’s attorneys’ claims that suspicion of them was spurious, essentially political, and revealing of a “new fascism”

smacked at times of disingenuousness or outright duplicity.

This did not mean, however, that RAF members were not entitled to fair trials, that specific charges against the lead attorneys had any foundation, or that legislation targeting the attorneys was legitimate from the standpoint of commonly accepted judicial principles. Investigators never established that Croissant or other of RAF’s principal attorneys conspired to commit any violent acts or knew of the violent plots of their colleagues and associates. Nor was there hard proof that RAF inmates used the Info-system to plan or order violence outside of prison. In the absence of such proof, RAF’s lawyers argued that the attacks on them had little to do with national security. Their true purpose, the lawyers claimed, was to weaken the RAF, to prevent a “political trial,” and to further empower the state by weakening Germans’ constitutional rights.

The reasons various prosecutors and judges gave for excluding or detaining RAF attorneys fueled these claims. Croissant was barred from Baader’s defense on suspicion of supporting a “criminal association” (section 129) simply because he had encouraged the RAF’s hunger strikes, at one point called for a three-day “sympathy hunger strike,” and facilitated an interview conducted by
Der Spiegel
with RAF prisoners.51 The

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judge ruled that these actions enhanced the RAF’s cohesiveness as a criminal organization and ability to perpetrate or inspire additional acts of violence. Federal Prosecutor Buback indicated that the attorneys’ mere use of the “terminology of left-extremism such as isolation torture [and]

brainwashing”—key words in the RAF’s campaign against prison conditions—could be grounds for their removal.52 Groenewold was indicted for writing legal briefs in support of the hunger strikes and for financing the Info-system. According to the indictment, the system allowed

“the self-understanding of the prisoners as urban guerrillas, their battle-readiness . . . and their feeling of group identity
[Zusammengehörigkeits-gefühl]
to remain unbroken.”53 Stroeble, in Stefan Aust’s characterization, was barred “solely on the grounds that he described his clients as ‘comrades,’ called himself a Socialist, and had viewed his work as a ‘political defense.’”54 Comments plainly offensive to the government could be sufficient for legal action. In August of 1977, Croissant’s associate Armin Newerla stated recklessly that “the situation of political prisoners in the

‘freest German state’ [is] at this moment worse than in the Nazi prisons.

One was also then beaten, tortured, killed, and experimented on with drugs, but not isolated with scientifically perfected methods.” Days later, Newerla was arrested for alleged support of a criminal organization.55

The RAF’s attorneys answered attacks on them by appealing to the professional duties of a defense lawyer and defending their right to hold dissident beliefs. Any responsible attorney, they insisted, necessarily experiences some degree of empathy with his or her clients. Given that the RAF justified its violence on political grounds, the lawyers felt that they had to adopt its political vocabulary and arguments to properly represent the group. That the lawyers in fact shared some of their clients’ views, they felt, should not be grounds for their disqualification. The lawyers also argued that the Info-system was crucial for developing an effective defense. Furthermore, given the prisoners’ isolation, the lawyers were virtually the only ones in a position to publicize the prison conditions to which their clients were subject. Both professional and ethical imperatives commanded that they support the hunger strikes. Finally, the attorneys disputed that RAF members
in prison
constituted an active “terrorist association” of the sort described by section 129a. With this charge, the state could legally justify the removal of attorneys, the inspection of documents they and their clients exchanged, and the total isolation of prisoners under the
Kontaktsperre.
56 As evidence of the prisoners’ criminal intent and capabilities, judges cited writings by imprisoned mem-270

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bers arguing the
political
merits of a guerrilla war strategy. The RAF’s lawyers protested that the “mere articulation of the concept of the urban guerrilla is not a crime.”57

The lawyers, in short, charged that the state equated competent advocacy with complicity, and legal representation with criminal propa-gandizing. They made this case not only within Germany but also to the international community, where they found some support. In 1975 nearly two hundred American lawyers, among them former U.S. Attorney General Ramsey Clark, criticized the
Verteidigerausschluß.
A group of European lawyers, judges, and professors went so far as to contend that attacks on the RAF’s legal defense were reminiscent of “Nazi justice.”58 To the RAF’s lawyers and supporters, the parallels were unavoidable. Croissant charged that the
Verteidigerausschluß
had a “fascist character” and compared actions against the RAF’s attorneys to the Nazis’ assaults on left-wing attorneys as “demagogues in lawyers’ robes.”59

“Hardly any domestic issue” had “generated such controversy and heated discussion in the Federal Republic” as “the legal measures for fighting terrorism,” the political scientist Bernhard Rabert commented.60

The backers of such measures consistently held that the maintenance of law and order was the precondition for the enjoyment of democratic rights and of freedom generally. The state, moreover, had a duty to protect its citizens’ most basic rights: to life and to freedom from physical danger. Antiterrorist measures were therefore expressions of the fundamental identity of the Rechtsstaat and its core obligations. Such measures gained their legitimacy from being designed and executed within the framework of the law. “Freedom without security ends sooner or later in chaos, [but] security without freedom ends just as surely in dictatorship,” the SPD subsequently explained. “Only the consistent protection of legal principles in the face of the enemies of our lawful order gives our state its true strength and superiority. Arbitrary state force . . . will only precipitate more violence. Our democratic constitution and a societal order based on the social contract and on justice are the best guarantees of internal security.”61

Critics of the antiterrorist measures worried that the alleged imperatives of security would imperil and even eclipse freedom, whatever the promises of constitutional propriety. One common charge was that state agents disregarded legal constraints on their conduct and denied citizens their rights, even as they claimed to be protecting them. This was the main criticism, for example, that the “Humanistic Union” made of the police actions following Lorenz’s kidnapping. A Union representative

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warned of the special danger posed when those charged with upholding the law themselves become agents of lawlessness.62 In the West German context, the arbitrary or supralegal exercise of state power inevitably invited comparisons with the violence of the Nazi SA or Gestapo.

Yet there was another fear—one raised specifically by antiterrorist legislation—that was more alarming: that the state would revise and manipulate the law such that
the law itself
became an instrument of oppression. In this scenario, there was no recourse internal to the law for reeling in state power; the laws themselves were the problem. To challenge such laws (assuming they were judged constitutional), one had to appeal to an external set of legal norms such as international human rights laws. This is precisely what the RAF tried to do, both to justify its violent acts and to protest the alleged abuse of its imprisoned members. And this is precisely what the state forbade, at least in formal terms, when it excluded as irrelevant any sustained talk of violations of international law either by the United States in its war in Indochina or by the West German state in its treatment of the RAF from the courtroom. The legality of the state’s conduct did not deter but rather renewed and reshaped comparisons with Nazism. Though the Nazis, as critics pointed out, had gained power partly by means of lawless brutality, when in power, the party systematically rewrote Germany’s laws to establish its absolute authority and to make it legal to terrorize the population.

In light of this second fear, the legislation permitting the continuation of a criminal trial in the absence of the accused takes on added significance. With the hunger strikes, the prisoners sought to use their bodies to mark a discursive “outside” to the law, even while they were in the state’s clutches. Their enfeeblement through starvation would dramatize and, they hoped, force some favorable response to their charge of being subject to legally sanctioned torture. (The courts repeatedly found that the “special handling” of the prisoners was justified on security grounds and did not constitute excessive punishment. In one case, however, prison doctors refused to force-feed a hunger-striking prisoner because they thought the practice inhumane; the prisoner was then transferred to a facility with a more cooperative medical staff.)63 But even more, the halt-ing of their trial on account of their weakened condition would call into question the legitimacy of the laws arrayed against them by forcing a momentary breakdown in judicial procedure and the legal machinery more broadly. Not without reason did the RAF attorney Kurt Groenewold defend the prisoners’ use of their bodies in hunger strikes as the exercise of a fundamental human right.64

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By permitting the absence from the trial of the defendants, the state asserted that there was no outside-the-law. This was the case even when they were excluded from the law’s paradigmatic arena—the courtroom—

which serves as a space for mediated exchanges between judge, prosecutor, defendant, counsel, and witnesses. With this exclusion, the essential arena of the law became (or reverted to) the prison as a space of total confinement and the monologic authority of the state. The contact ban law here takes on added significance as well. It was no longer simply a mechanism for exclusion. By denying the prisoners any
private
contact with the “outside” world, the
Kontaktsperre
also assured the imperme-ability of the law’s boundaries and the prisoners’
total
integration within them. Even seeming breaks in those boundaries could be illusions. The prisoners subject to the contact ban in Stammheim apparently rewired stereo systems in their cells to communicate with one another via a crude intercom. But evidence suggests that the authorities knew of and even encouraged this practice so that they could electronically monitor the prisoners’ conversations.65

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Democracy is not at everybody’s arbitrary disposal.

Those who reject its basic elements must not be given

the power to do away with it.

Willy Brandt

The state’s antiterrorist measures sought most immediately to prevent or at least limit political violence. Whether they ultimately served or undermined these goals is debatable. The deeper question concerns why the state perceived left-wing violence as so threatening and mobilized such extraordinary resources in combating it. Reflection on the monopoly of the use of force, or
Gewaltmonopol,
a ubiquitous term in West German discussions about political violence, provides initial insight into the state’s perceptions and motivations.

The
Gewaltmonopol
concept comes from Max Weber, who described the state as “a human community that (successfully) claims the
monopoly of the legitimate use of physical force
within a given territory.”66

Though the state has other attributes, this exclusive grant of physical force is what makes it, in essence, a state. And though other institutions or individuals may use violence, they may do so
legitimately
only by the permission of the state; the state remains “the sole source of the ‘right’ to

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use violence.” Having described the state as a “relation of domination”

supported “by means of legitimate violence,” Weber then considered the

“inner justifications” and “external means” by which the state commands obedience. Historically, that authority has derived primarily from fidelity to tradition or devotion to a charismatic leader, both of which tend toward despotic rule. In modern times, however, a common source of legitimacy has been “legality,” which Weber defined as the “belief in the validity of legal statute and functional ‘competence’ based on rationally created rules.” For many modern states, the rule of law reigns supreme, though elements of charismatic or tradition-based authority may persist.