Germany: Under permanent observation

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Under permanent observation
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by Rolf Gössner

Since 1970, I have been under uninterrupted observation and investigation for nearly four decades by the Federal Office for the Protection of the Constitution (OPC), the domestic secret service, which is difficult to monitor and has an anti-communist character. They watched me as a law student and later throughout my working life, in all my professional and voluntary roles - as a commentator on current affairs, as a lawyer, a parliamentary adviser, a board member of the International League for Human Rights, co-editor of the yearly Report on Constitutional Rights and of the fortnightly Ossietzky, and as a member of the jury awarding the negative prize the 'Big Brother Award'.

In personal files and in written documents, the OPC, from its selective and ideologically motivated perspective, created a picture of my life that was torn from its contemporary context, and constructed abstruse accusations, arguing in a positively inquisitorial manner. This constitutes an exemplary case, presenting German society with the urgent question of what all this signifies for freedom of opinion and of the press, for professional confidentiality and protection of sources, and for openness and readiness for dialogue in this country. This case is of course not unique, but just one of many throughout the history of the Federal Republic, some with grave consequences. After the official end of the Cold War, too, and up to the present, parties, trade unions and political organizations have been spied on and infiltrated.

What does the OPC actually accuse me of? Initially it held both my professional and unpaid, voluntary contacts with groups that were supposedly 'extremist left-wing' or 'under extremist left-wing influence' against me. This includes political parties like the German Communist Party, organizations like the legal assistance group 'Red Assistance' and the Association of Victims of the Nazi Regime, but also periodicals such as Demokratie und Recht [Democracy and Law]; Blätter füe deutsche und internationale Politik [Pages for German and International Politics]; Geheim [Secret]; Junge Welt [Young World]; and Neues Deutschland [New Germany], in which (alongside many other media) I have published or been interviewed. The OPC even collected accounts on me and my books and held them against me if they appeared in the above-mentioned incriminated media. They were also interested in remarks I made in lectures or discussions, both at public events and in closed meetings. In doing so, the OPC unjustifiably identified me with the media in which I published, with the organizers of lectures I gave or discussions I took part in, and with my clients whom I advised.

It wasn't what I wrote or said that was decisive for the OPC, but the political milieu in which it took place, imputing to me a sort of 'guilt by contact', from which it deduced a 'sustained support' of such associations and press publications, which, although not banned, are considered to be 'extremist left-wing', and whose status I, as a 'prominent jurist', am alleged to have enhanced, lending them respectability.

Over time, the OPC gradually escalated its accusations against me, alleging, for example, that I was not just a supporter but sometimes also a member of 'extremist left-wing associations', namely the Social Democratic / Socialist Higher Education Association, and the editorial board of the magazine Geheim [Secret], which criticizes the secret services. In their most recent escalation, the OPC suspects what I have written and said of being hostile to the constitution. With my 'defamatory' criticism of German security policy, the security organizations, and especially of the OPC, as well as my criticism of the ban on the German Communist Party and the bans of left-wingers from certain professions (which according to the official version never existed), I wanted -according to the tenor of the OPC - to render the state defenceless and deliver it into the hands of 'extremist left-wing' endeavours and revolutionary upheaval. I am also accused of failing to dissociate myself from the DDR [the former East Germany] and its security service, from the USSR, the gulag and all the crimes of communism, while criticizing the West in a one-sided fashion.

I learnt that I was under surveillance because in 1996 I applied to the OPC for information about the data it had stored about me. In response I received a personal dossier with a list of sins - articles, interviews and speeches in the wrong periodicals or at the wrong events - going back to 1970. I repeated my request about every two years in order to see the latest list of sins, and it was promptly sent to me.

Since the surveillance continued, in 2005 I filed a suit against the German Federal Republic in the Cologne administrative court in order to view the totality of my personal files, as well as to have the surveillance, extending over decades, declared illegal. Five years have passed and an end to the case is not in sight - but some things have happened. The court ordered the OPC to present all my personal files from 1970 up to 2007, and this has been done - but mostly with parts of the text blacked out. Of all of the over 2000 pages of files presented to me, around 1750 are totally or partially illegible or have been manipulated or not presented at all - in other words around 85%; only 15% are openly and completely legible. The keeping secret of entire portions of the files is due to extensive blocking orders by the ministry of the interior as the highest supervisory authority over the OPC. The reason given was that if their content were to become known, that could 'cause disadvantages to the Federal Republic or to a Land [province]'; the OPC's ability to function would be adversely affected if hidden ways of working and operational interests were to become known; while the prime reason for maintaining of secrecy is the protection of sources of information, revealing whose identity could lead to 'endangering the life, health or freedom' of informants or OPC employees.

I brought a legal action in the federal administrative court against this refusal to reveal files, in order that the blocking orders and secrecy be examined in in camera proceedings (secret proceedings which are problematic from the perspective of a state based on the rule of law). These hearings, held without my participation, concluded that these portions of the files should continue to be kept secret.

Despite this, the remaining collection of documents is quite revealing. I was amazed at how many government agencies, other offices and individuals had been denunciatory informants about me to the OPC, and how many informer's reports must have been written about my lectures and other activities.

Around the end of 2008, a few days before the first day set for the hearing of my case by the Cologne administrative court, the OPC surprisingly informed the court that 'after recent examination', surveillance of me by the interior ministry and the OPC had been ended and the data collected about me were ready for deletion and were blocked with immediate effect until the end of the legal proceedings. It remains to be seen whether this declaration can be believed - only a few months previously, the OPC had insisted that continued surveillance of me was necessary, even following the enquiry by the presiding administrative judge as to whether my recent election as deputy judge in the Bremen state court didn't alter this. No, the OPC declared, in certain circumstances even judges had to be kept under surveillance.

One of the reasons given why there was suddenly no longer any need to keep me under surveillance was most interesting: it was said that the threat situation in Germany had changed, and scarce resources now had to be devoted to other priorities. The OPC also claimed that I no longer frequented 'extremist left wing' circles to the same extent. This is in fact untrue, and my writings too have, I hope, not become any more innocuous.

Under surveillance, I have always had to fear that my often delicate researches and my contacts with informants would be spied upon and my informants endangered. Indeed, I have repeatedly found that informants from the police or security services have been investigated and observed. In some cases I have therefore had to avoid or break off contacts. As a lawyer, too, I had to take account of possible investigation by the security services. Since my surveillance by the secret services could no longer be kept secret, I found it necessary to inform my clients of it. Some of them withdrew their cases from me. How many may have never sought contact with me in the first place, I am unable to judge. In any case, professional secrecy and protection of information could not always be guaranteed, and the relationship of trust between lawyer and client, as well as between journalist and informant, which are protected by the constitution, were damaged, and my professional activity seriously affected.

In my view, in this dispute two different political cultures are in collision: on the one hand the culture (or rather lack of culture) of spying, stigmatization and exclusion in the name of security and the wellbeing of the state, and on the other the culture of democratic transparency and of open and critical dialogue in the name of democracy and freedom that I have sought and cultivated in all my professional and voluntary activities, often against the mainstream and without excessively great political fears with respect to establishing contacts, including those with groups and individuals that, while not banned, are also under observation by the OPC and that, for that reason alone, are regarded as outlaws in the eyes of many - for example, particular communist and Kurdish groups, Islamic communities and other immigrants that have become subject to blanket suspicion since the advent of the state war on terror.

Dr. Rolf Gössner is vice-president of the International League for Human Rights (Berlin). He lives in Bremen as a lawyer, commentator on current affairs and parliamentary adviser. Since 2007 he has been a deputy member of the Bremen state court of justice and member / deputy speaker of the deputation for internal affairs of the Landtag [state parliament] of the Free Hanseatic City of Bremen and of the Bremen city parliament. He is the author of numerous essays and books on the topic of 'internal security' and civil rights, most recently Menschenrechte in Zeiten des Terrors. Kollateralschäden and der 'Heimatfront' [Human Rights in Times of Terror. Collateral Damage on the 'Home Front'], published in 2007.

Source: Junge Welt, 1/11/10.

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