Lawyers

Can terrorism be checked without curbing civil rights?

Quiet, thin, dressed in a conservative pinstriped suit, Kurt Groenewold hardly looks the part of a firebrand lawyer who would conspire with West German terrorists to bring down the state. But Groenewold is now on trial himself in a Hamburg courtroom for "supporting a criminal organization" and furthering the plots of the notorious Baader-Meinhof gang, which has wreaked havoc in West Germany for a decade. As Groenewold nervously shuffles papers, his own lawyer politely debates procedural points with the prosecutors. No one shouts obscenities; the tone is orderly and low-key, punctuated only by an occasional muffled cheer from a handful of law students sitting in the audience on the other side of a bulletproof screen.

Despite the subdued atmosphere of the State High Court, the stakes at the trial are high. If Groenewold is acquitted, the German effort to keep radical lawyers from helping their terrorist clients commit crimes will have suffered a serious blow. If Groenewold is convicted, the right of the accused to full representation by an attorney could be dangerously undermined. To anxious observers, it comes down to a difficult test case of Germany's precarious balance between the rights of the individual and the security of the state--an issue with echoes far beyond Germany.

Three years ago, Groenewold, now 40, and two other radical lawyers, Klaus Croissant, 48, and Hans-Christian Stroebele, 38, were expelled by the court from the trial of the four "hardcore" Baader-Meinhof leaders on the "urgent suspicion" that they had collaborated with their clients to frustrate justice and commit further criminal acts. They were charged with creating an "information system" among the imprisoned terrorists and their adherents on the outside, and with coordinating a prison hunger strike. The information they were said to have passed to their jailed clients included treatises on guerrilla warfare, instructions on weapons systems and diagrams of U.S. military bases in West Germany. Croissant was further accused of helping Andreas Baader escape an arrest warrant and bullying an imprisoned gang member into joining the hunger strike.

This winter the government put Groenewold and Croissant on trial for their defense tactics. Strobele may also face prosecution, along with a dozen other radical lawyers, on various charges. Croissant's trial, in the Stuttgart court where the Baader gang leaders were convicted last spring, is likely to be less restrained than Groenewold's. Croissant is more given to outbursts than his colleague, and his lawyers delayed the trial soon after it began by refusing to unzip their trousers so that guards could inspect their underwear for weapons. The Federal Constitutional Court ruled early this month that the searches were legal, and the trial resumed last week.

What really concerns the government is that some radical lawyers pass orders, plots and even weapons between their imprisoned clients and terrorists on the outside. That concern deepened when eleven terrorists in scattered prisons ceased their hunger strikes four days before Industrialist Hanns-Martin Schleyer was kidnaped last September--presumably to regain strength for their expected release in exchange for Schleyer's freedom. Other radical lawyers have carried more than pamphlets or information into prison. Arndt Mueller was accused of smuggling weapons in his briefcase to Baader and Jan-Carl Raspe, who used them to commit suicide after the dramatic rescue last October of Lufthansa passengers held hostage in Mogadishu, Somalia. Siegfried Haag awaits trial in a Bochum prison on charges of carrying weapons to terrorists and of planning a 1975 raid on the West German embassy in Stockholm in which three were killed and 30 wounded.

Still, in Groenewold's case the government appears hard put to prove that he did anything more than maintain the fighting spirit of his clients. Many liberal intellectuals and moderates in Germany agree. They see a great risk that by overkill, antiterrorist laws will jeopardize civil rights. For years, West Germany's post-Nazi constitution and subsequent legislation gave defendants and their lawyers some of the most liberal guarantees anywhere in the world. "It was a wonderful position for the defense counsel," says Heinz Brangsch, executive director of the West German Lawyers Association. "Then came terrorism and a breakdown of our position." When the terrorists came to trial, radical lawyers manipulated the liberal rules to protract proceedings, turning them into politicized circuses. Unlike William Kunstler and other radical American lawyers, they did not even have to worry about contempt citations; none exist under German law.

As the terrorist problem grew, the government began changing the rules. In 1974 the parliament in Bonn adopted a law permitting the exclusion of defense counsel if he or she were suspected of participating with the defendants in their criminal acts or obstructing justice. Last year, after Schleyer's kidnaping, parliament enacted a "contact ban," permitting courts to cut off terrorist prisoners from all outside communication--including their lawyers under certain circumstances. Last week the Bundestag passed new antiterror rules that would further restrict the rights of defendants and their attorneys. Among them: placing a physical barrier between a lawyer and his client during consultations to prevent weapons smuggling and permitting the court to monitor the mail between lawyer and client when criminal activity is suspected.

The obvious-problem, say civil libertarians, is that laws specifically designed for the Baader-Meinhof lawyers have universal application. Indeed, a prosecutor tried to apply a section of the so-called Lex Baader-Meinhof to a lawyer in an ordinary extortion and robbery case in Cologne before it was applied to radical lawyers, prompting an appeals court, which denied the exclusion, to warn against using it as a "handy disciplinary measure."

To West Germany's liberal community, the restrictive laws, including a regulation that allows government officials to deny civil service jobs to people on suspicion of radical activities, smack of McCarthyism. "It's simplistic to say there is an underlying trend toward fascism," says Gerald Gruenwald, professor of criminal procedure at the Friedrich-Wilhelms University in Bonn, "but there is a tendency toward an authoritarian state and a limitation of freedom." Notes Margret Moeller, legal adviser to the Christian Democratic Union, whose conservative members push for even more stringent restrictions: "Nonsense, these people, the terrorists and their lawyers, don't believe in our system of justice. That's the deeper issue. If the defense counsel keep to the rules, no one will touch them."

The deepest issue, of course, is the dilemma that terrorism poses for any open society, and particularly one with Germany's painful history. How much can civil liberties be curbed, in the name of securing a people against terrorism, in a country that once lost its civil liberties altogether?

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