In the 1970s constitutional rights in West Germany were seriously eroded by repressive laws, censorship and a job ban. Dissent was no longer being tolerated. The prescription for crisis was prior censorship, confiscations, blacklisting, detention, a Radical Decree, and much more.
The Crackdown
Despite the growing risks facing her in West Germany, Kristina Berster continued to fight for small improvements like allowing prisoners to see and hear one another. But reforms faced new obstacles. Not only did public sentiment harden against the Red Army; the Right, prodded by the Springer newspaper chain, pushed through more repressive laws.
A Decree on Radicals, passed in 1972, denied “a position of civil service…if the candidate has been politically active in either an extreme rightist or leftist group.” Any doubt about a person’s support for the “free democratic basic order” would henceforth be sufficient grounds for blacklisting. It was an effective job ban in a country with 16 percent of workers in this sector.
The Decree also permitted the executive branch to create political isolation without directly banning political parties. Instead, it created a category of “constitutional enemies.” Acts no longer had to be proven; the job ban punished attitudes, and the enemies list extended to “sympathizers” who were indifferent to or critical of the state’s war on terrorism.
A prominent target was writer Heinrich Boll, who had criticized the demagoguery of the Springer press. One of the country’s leading authors, he had won the Nobel Prize for Literature for his ironic novels on Post World War II Germany and its changing psychology. Nevertheless, conservatives tried to ban his books and the police harassed his son. His hate mail was signed, he once said sardonically, while the complimentary notes were apt to be anonymous.
By this time, Kristina and her co-defendants became convinced that a fair trial was impossible. There was considerable evidence that the outcome was rigged: exclusion orders against their lawyers, poor treatment of prisoners, new repressive laws and right-wing propaganda. In an open letter to the court they announced that they weren’t showing up, and instead intended to hold a counter-trial at which they could present themselves for public judgment. A huge audience, traveling from across Western Europe, attended the event. But many left confused.
Disagreement erupted over the use of violence. Many who attended were attracted to it; Berster rejected the idea. Nevertheless, she was also persuaded that the official trial wouldn’t be just, and stuck with those who decided not to appear.
She didn’t believe she would have to become a fugitive — at first. But when “wanted” posters went up it seemed clear that she wouldn’t be free for long if she remained in West Germany. By 1973 the national mood was grim, much akin to the repressive climate of the Nixon years, especially when the anti-war movement splintered and the country reeled from police violence and politically-motivated assassinations. By the time Bacchus, the informer whose testimony had originally implicated Kristina, recanted she was out of the city, living on the edge, cut off from family and friends.
Maybe leaving had been a mistake, she thought. But it was too late to turn back.
Five years later, while Berster was in Montreal looking for a way into the US, a German lawyer back home was being convicted of “conspiracy” for assisting his clients to maintain their identities. Kurt Groenwold, who had defended Red Army Faction leaders during the intervening years, was sentenced to two years in jail because his assistant provided support for the suspects. Defending “enemies of the state” in anything but a perfunctory manner had become grounds for a conspiracy charge.
It was the first in a series of similar cases. The court rejected Groenwold’s argument that his clients had the right to determine the nature of their own defense. Such a defense would “promote the ideas of the defendants.” And those ideas were apparently too dangerous to be heard.
The new crackdown on left-leaning lawyers was not a surprise. German attorneys had already been disbarred and indicted on similar charges. This served as a major incentive for William Kunstler to take Kristina’s case after she was caught at the border. Groenwold’s conviction reminded Kunstler of what had happened to Kristina’s first attorney.
After an early attempt to disbar lawyers in 1971, the federal parliament had passed amendments pointedly labeled “Lex Baader-Meinhof.” They provided prosecutors with legal grounds to bar overly-aggressive lawyers, to limit the number of lawyers on a case, and to exclude defendants from their own trials if the court believed that “they willfully caused their own unfitness.”
On March 11, 1975, Groenwold was excluded from the Baader-Meinhof trial. Three months later he was disbarred. He had “only been disbarred,” he thought, “perhaps because of my wealthy family associations…I have been lucky for now.” But criticism of the constitution or government had become a crime, and lawyers could now be jailed for objecting to prison conditions.
“Always the so-called liberals and social democrats come to power and make the state bigger and more powerful,” said Groenwold. “They think that if they do the work of the fascists, then the fascists will never come to power. But always, the fascists eventually come to power and then the social democrats are arrested by the very policemen they hired.”
In 1978, the Bertrand Russell Tribunal concluded that constitutional rights in Germany were being seriously eroded by repressive laws, censorship and a job ban. Perhaps those chilling effects were the price of its national preoccupation with order. In any case, dissent was no longer being tolerated. The prescription for social crisis was prior censorship, confiscations, blacklisting, detention, the Radical Decree, and much more.
There was also an unanticipated side effect: a new generation of terrorists. Even Andreas Baader, locked up for five years by the time former SS official Hans Martin Schleyer was murdered, disapproved of such actions. On the eve of his own mysterious death from gunshot wounds, Baader told a chancellery official that he had never approved of, and would never approve of, terrorism in its current form of brutal actions against uninvolved citizens.
By then, however, both the state and its enemies had gone beyond symbolic bombings and police riots. Despite protests from former Red Army supporters that terrorism provided an excuse for more repression, the violence of the new generation continued, capturing the imagination of disaffected young people. Danny Cohn-Bendit, who had moved to Germany from France after the 1968 student uprising there, concluded that the German Left was trapped in a battle that was a product of German society itself.
None of this made it into the court record during the Berster trial. It was one of several ironies of her situation. Rejecting the violence that had enveloped her homeland, she had left Germany only to be haunted by its specter, then exploited by the US intelligence community to justify excessive counter-terrorist tactics.
Guilt by association was a cheap shot. But it made good copy and provided a flexible excuse for almost any tactic in response.
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