Jeremy Varon (51 page)

Complementing Weber’s analysis, one can assert that for democratic societies, the validity of rules is itself rooted in popular consent (principally some version of the social contract) as the ultimate basis for the state’s legitimacy. The
Gewaltmonopol
of a democratic state exists by virtue of this foundational consent.

Political violence, in its very existence, contests the state’s monopoly of legitimate violence. Those who commit acts of political violence, unlike conventional violent criminals, claim that their violence is legitimate, and that of the state illegitimate, on political and moral grounds.67 Typically, left-wing challengers of state power in ostensible democracies contest that the state’s sovereignty is genuinely popular; they therefore retain “democracy” as a criterion for legitimacy, while disputing that the existing order is truly democratic. Unlike other dissidents, those practicing violence are not content simply to mount an ideological critique of the state’s authority, to obey state-defined norms of legitimate protest, or to engage in restricted violations of the law, as in the case of nonviolent civil disobedience. The radical nature of violence as a form of dissent lies in the appropriation of force, which
in practice
challenges the state’s legitimacy as a whole.

In the 1960s and 1970s, no self-styled guerrillas in advanced industrial societies posed significant military threats to their governments.68

But in Weber’s model, political violence
in any quantity
is provocative and, in principle, impermissible, insofar as it constitutes a breach or rup-ture in the state’s singular authority. The attorney Ulrich Preuß put it bluntly: “The greatest political crime is . . . to call into question the state’s monopoly of force. That is high treason.”69 In structural terms, this challenge or “crime” was every bit as much a quality of Weatherman’s violence as of the RAF’s. Yet reflection on the category of the
Gewaltmonopol
was almost entirely absent from American discussions of political violence in the 1960s and 1970s. In Germany, by contrast, the guerrillas 274

“Democratic Intolerance”

themselves, government officials, and numerous analysts invoked the idea.

Peter Brückner, for example, described the radicality of the J2M’s execution of a “traitor” after he had been “convicted” by a self-described

“people’s tribunal” by asserting: “Legal sovereignty and physical force are integrally linked. When groups arrogate unto themselves legal jurisdiction, they take away from the state a piece of its monopoly of force. . . .

It is no longer only the state that jails, prosecutes, and shoots.”70 Defending the state’s security measures in 1976, the SPD insisted that, “the democratic Rechtsstaat acts on behalf of its citizens. Its
Gewaltmonopol
must therefore be defended against all who challenge it. Only the lawful state can provide law and order absolutely and for everyone.”71 In criticizing the prosecutions of the RAF, Preuß contested the validity of the state’s
Gewaltmonopol.
Since the state, in his view, used its force mainly to protect the rights of private property and the propertied class and not to guarantee the material well-being of all, it lost its claim to universality. The
Gewaltmonopol
was therefore an instrument of class rule, and the legal system, backed by the force of the state, could deliver only “class justice”
(Klassenjustiz).
72

Differences in political culture help to explain the absence of the idea of the
Gewaltmonopol
from American discussions and its strong presence in German dialogue. In U.S. politics, pragmatism dominates, and political actors rarely articulate the theoretical assumptions that inform their behavior. Theory generally plays a subdued role in the commentary of pundits and even in academic political analyses. It is not surprising, then, that Weber’s formulation did not resonate in the United States, despite its relevance to the violence there. In Germany, the left was highly engaged theoretically, as is evident in the detailed analyses produced by Rudi Dutschke and other New Left leaders; the voluminous reflections on capitalism, democracy, and social protest of Brückner, Habermas, Negt, and other established intellectuals; and the extensive efforts of the RAF to articulate an ideological basis for its violence. Moreover, mainstream politicians and journalists were often conversant with political theory and drew on it in their discourse.

Yet German concern with the question of the state’s
Gewaltmonopol
reflects more than just styles of political speech. The roots of this concern lie in Germany’s historically vexed relationship to democracy and its experience with fascism. Contrasting the political climate in the United States and West Germany further prepares discussion of what drove German anxieties.

In the United States in the 1960s, racial and economic strife, division

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over the Vietnam War, and generational conflict—all of which took on a violent cast—prompted a crisis of legitimacy, experienced by many as the fear that “the center would not hold.” Political assassinations and the periodic explosions of civil unrest fed Americans’ sense of terrifying uncertainty. Some activists completely lost faith in American democracy and turned against virtually all conventional forms of authority. Meanwhile, in response to protest and to domestic turmoil generally, the state relied on repressive measures to preserve order and existing power relationships. Though it did not have a legal arsenal for combating protest equal to West Germany’s, its powers were substantial. The FBI and local police made extensive use of surveillance, undercover agents, covert forms of political and psychological manipulation, and, especially when dealing with racial minorities, outright violence to combat dissent. When such measures were illegal, security agencies often simply broke the law and worked to conceal their activities from oversight bodies. At an extreme, state agents engaged in murder—as in the case of Fred Hampton—

to silence “subversives.” In response to such egregious assertions of state power, radicals accused the U.S. government of being “authoritarian”

and even “fascist”; public officials denounced protesters in equally strong terms. At the moments of greatest violence and division, the country may have seemed headed for civil war.

Yet only for very brief periods and in limited circles did Americans seem to doubt the ultimate stability of their political institutions. In the perception of its opponents, protest violence threatened civil peace more than it did the legitimacy of the American state and the principles for which they felt it stood. For millions, the radicalism of the 1960s and early 1970s was a more or less distant reality, which held no appeal, affected their lives only indirectly, and did not challenge their fundamental faith in their country’s future.

Though social protest movements in West Germany in the 1960s and 1970s proved highly polarizing, West German society as a whole did not experience anything like America’s
structural
conflicts. Yet West Germans, in the face of comparatively modest tensions, felt intense and enduring insecurities about the identity and stability of their democracy. This insecurity was raised with singular force by the RAF, who simultaneously provoked a security crisis, a constitutional crisis, and, most significantly, a crisis of confidence over what it meant to be a democratic society. The deepest roots of this last crisis lay in the German past—or how West German society defined and integrated the lessons of the past. Here also lay the core logic of the state’s response to terrorism.

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An important construct to emerge in the postwar period from Germany’s historical experience was that of
streitbare Demokratie
—militant or partisan democracy. The basic mandate of militant democracy was aggressively to defend against threats to democratic rule. Its exponents defined democracy broadly so as to include the protection of individual liberties, rights of political participation, and minority points of view. The Weimar Republic, as much as the Nazi state, functioned as a reference point for conceiving the means and ends of the militant democracy.

In the wake of the war, an antitotalitarian consensus emerged among elites in the Western zone of Germany in direct reaction to the Nazis’ destruction of democracy. But in the perceptions of some, Weimar’s constitution and broader political culture had facilitated the rise of fascism both by failing to solidify democratic values and by being too democratic. Postwar critics decried the “value-relativism”
(Wertrelativismus)
of a pluralism that gave extremist groups room to gain strength, culminating in Hitler’s seizure of power by largely
legal means.
73 Weimar’s constitution, to its West German detractors, had resulted in a democracy that was weak, dysfunctional, and incapable of defending itself. The violence in the 1920s and early 1930s of the paramilitary groups of the far right and left typified the inability of the Weimar state to solidify its
Gewaltmonopol
and, hence, establish the legitimacy of its rule.

Under the slogan “Bonn ist nicht Weimar,” the architects of the Federal Republic sought to sanctify democratic principles and institutionalize safeguards against antidemocratic ideas and movements. The West German constitution explicitly affirmed the “dignity of man” and established inviolable rights of its citizens. This
Wertgebundenheit,
or unified commitment to democratic values, aimed to correct for Weimar’s
Wertrelativismus.
To protect democracy from internal threats, the constitution permitted the banning of organizations deemed to be enemies of the constitution, even if they did not engage in conventionally criminal activity.

The far right Sozialistische Reichspartei and the Kommunistische Partei Deutschlands (KPD) were banned under these provisions in 1952 and 1956, respectively. Tellingly, the primary West German security agency combating political threats is the Bundesamt für Verfassungsschutz, or

“Office for the Protection of the Constitution.” Following the war, the SPD leader Carlo Schmid captured the underlying spirit of such measures when he said: “Wherever there is a belief that democracy is indispensable for the dignity of human beings, democracy is more than a purely utilitarian construct. When one has the courage of this belief, one must

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also have the courage of intolerance toward those who want to use democracy to destroy democracy.”74

The priorities of
streitbare Demokratie
inspired subsequent West German laws. The
Notstandgezetze,
proposed in the 1950s and passed in 1968, expanded the state’s powers during times of national emergency.

The
Berufsverbot
demanded that civil servants be loyal to the constitution and not participate in organizations—even those not officially banned—deemed a threat to the constitution. Chancellor Willy Brandt, reflecting on the
Berufsverbot
after leaving office, conveyed how West Germany’s founders drew on the past in conceiving the postwar democracy: Whether [the
Berufsverbot
] was right or wrong, you must look at this in the context of the way in which we believed ourselves called upon to prevent a repetition of Weimar. Weimar had been ground to pieces between the large National Socialist Party . . . and a large Communist Party. . . .

When we started over, we picked up on a phrase that one of our major authors, Thomas Mann, coined while he was in exile. We wanted a forceful, militant democracy, as he called it. I’m sure he would disagree with some of the measures taken today. So I do not want to claim him as the author of specific measures, but only of the underlying intellectual concept.

This was the concept, as many people described it when the Basic Law

[the fundamental democratic provisions of the constitution] was written: democracy is not at everybody’s arbitrary disposal. Those who reject its basic elements must not be given power to do away with it.75

The implications of militant democracy for the conflicts precipitating political violence and for the terrorist drama itself were profound. In the 1950s, the “courage of intolerance” served as a rationale in West Germany for the exclusion from political life of communists, feared as agents of internal subversion who might do the secret bidding of the Soviet-dominated DDR. The most concrete expression of this fear was the banning of the KPD, though informal means of censure played an important role in restricting the spectrum of acceptable opinion. According to Brückner, postwar enthusiasm for democracy quickly degenerated into a view of communism and fascism as two sides of the same totalitarian coin.

To Brückner, such anticommunism “suspended a critical engagement with communism; it was not the result of such an engagement.”76 Later, the

“courage of intolerance” informed state and public hostility to the budding New Left. The marginalization of the radical opposition, whether through police actions or public defamation, contributed to the growing sense among the young that a systemic alternative to the existing order could neither be articulated nor pursued from within the established 278

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political order. The RAF’s violence was, in part, a radical expression of this pessimism. The “courage of intolerance,” by limiting the space of sanctioned political opinion and conduct, contributed to the emergence of the very “extremism” it meant to prevent. In addition, the principles of militant democracy encouraged the portrayal of New Left radicals as enemies both of the state and of democracy, who threatened to plunge West Germany back into chaos or even dictatorship. The RAF, the federal government’s bête noire, was declared an absolute evil; given the imperatives of militant democracy, its destruction mandated the use of extreme measures.

Those measures grew more insistent as the RAF became more aggressive. The culmination of the RAF’s violence in the kidnapping of Schleyer, the murder of his guards, the hijacking of the Lufthansa plane, and the shooting of its pilot, in the fall of 1977 elicited the state’s most severe response. For more than six weeks, the hapless Schleyer was at the center of a war of both wills and nerves between the RAF and the government. The German Autumn reached a tragic crescendo for both sides with the deaths of Schleyer and the RAF’s leaders. The memorial service for Schleyer was elevated into an act of state, in which politicians extolled his sacrifice and reiterated their resolve to fight terrorism. Bundespräsident Walter Scheel’s address, though an extraordinary response to an extraordinary sequence of events, captured the main themes of the entire battle against the RAF.