Wednesday, October 1, 2008

Counterterror: Guilt by Association

At first, Kristina Berster didn't believe that she would have to become a fugitive. But when she noticed "wanted" posters it was clear that she wouldn’t remain free for long if she stayed in West Germany. The national mood was grim by 1973, very much akin to the repression of the Nixon era, when the anti-war movement cracked and the country continued to reel from politically-motivated assassinations. By the time the informer whose testimony had originally implicated her recanted, she was out of the city, living on the edge, cut off from family and friends.

Perhaps leaving had been a mistake, she thought. But it was too late to look back.

Five years later, while she was in Montreal looking for a way into the US, a German lawyer 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 had 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 opening shot in a series of similar cases. The court had rejected Groenwold's argument that his clients had the right to determine the nature of their own defense. Such a defense, said the court, would "promote the ideas of the defendants." Those ideas were too dangerous to be heard.

The German crackdown on left-leaning lawyers was no surprise. Attorneys had already been disbarred and indicted on similar charges. This served as a major incentive for Bill Kunstler to take Kristina’s case after she was caught attempting to enter the US. Groenwold's conviction reminded him of what had happened to Kristina's first attorney. After an early attempt to disbar lawyers in 1971, the federal parliament 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 Germany's preoccupation with order. In any case, dissent was no longer to be tolerated. The tough prescription for social crisis was pre-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, who had been locked up for five years by the time former SS official Hans Martin Schleyer was murdered, disapproved of such actions. On the eve of Baader’s own mysterious death from gunshot wounds, he told a chancellary official that he had never approved of, and would never approve of, terrorism in its current form of brutal actions against uninvolved citizens.

By this time, however, both the state and its enemies had gone beyond symbolic bombings and police riots. Despite protests from former Red Army supporters that terrorism merely provided an excuse for more repression, the violence of the new generation continued, capturing the imagination of some disaffected young people. Danny Cohn-Bendit, who had moved to Germany from France after the May, 1968 student uprising there, concluded that the Germany Left was trapped in a battle that was a product of German society itself.

None of this history made it into the record during the Berster trial. Yet Kristina’ situation was obviously filled with irony. Having rejected the violence that enveloped her homeland, she left Germany only to be haunted by its specter and exploited by a US intelligence community hungry for a terrorist scare. Guilt by association was a cheap shot in almost any country's court, but it certainly made good copy.

Chapter 20 of Prelude to a Revolution

Previous parts of Counterterror:

The Berster Case

Kunstler Takes the Case

Kristina Berster Speaks

Crackdown in Germany

Next week: The media & the lessons
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