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of psychology about the mysteries of "overidentification", and she
of psychology about the mysteries of "overidentification", and she
offers the explanation that, "a mixture of social-romanticism and sentimentality,"
offers the explanation that, "a mixture of social-romanticism and sentimentality,"
of "admiration and envy" are at the roots of crimes like that
of "admiration and envy" are at the roots of crimes like that of Klaus Croissant:
We may assume that conspiring lawyers have their very own personal problem with their own
aggressiveness and their own hunger for power . . . . It is naturally an extremely comfortable and relieving
kind of aggressive articulation, ff you can wrap up this urge in an idea, and if you are able
to press this idea to such a level of abstraction that it permits any kind of inhumane behavior [9].
After reading Professor Mtiller-Luckmann's statements about "motives of
terrorist lawyers," one is understandably curious to know just where this
natural "urge," this "instinct" of overidentification had finally led Croissant:
to the murder of a guard, of the presiding judge, of himself?.
Klaus Croissant was sentenced to thirty months in prison because he
established an information service designed to communicate matters relevant
for a collective defense of the accused: statements, discussions, decisions,
judgements, critiques, books and articles.
What is collective defense? Is it something illegal? Collective defense is
the answer to collective indictment. Participants of a conspiracy are not
accused of individual acts, but each one is charged with the activities of
the whole group. To prepare an effective defense the collective charge must
be answered by collective defense, i.e. the defendants must be free to agree
upon a single strategy of defense, to communally prepare statements to be
given before court. It must be possible for each of the defendants to have
more than one attorney, and for each attorney to have more than one client.
Although collective defense was practiced under the Socialist Law in the
1880s as well as in the Weimar Republic and even in the communist conspiracy
trials after the outlawing of the German communist party in 1956
(the defense then rented a complete hotel to collectively prepare motions
and declarations, and there was no objection whatsoever), it has now been
outlawed in Germany by an act especially designed to smash the defense in
the Baader-Meinhof case ("lex RAF"). "For once", says Gerhard Mauz, one
of the more critical observers of the judicial scene,
for once there is counsel for the defense in penal procedure that merits its name - and instantly
it is called 'abuse'. For once the rights accorded to the counsel of the defense by the code of penal
procedure are being used - and instantly the code itself must be demolished so it earmot be
'abused' anymore [10].
The lex RAF prohibits collective defense, limits the rights of the defense
and their clients to deliver statements of political content in any phase of
the trial, declares it legal to proceed against the accused in absentia, enables
the court to exclude a lawyer from the defense even before he is found
guilty of a breach of law [ 11]. Furthermore, in 1976 and 1978 two more
laws were passed to extend the powers of the court to exclude "political lawyers," thus annihilating all progress in penal procedural reform that had
been made since the Second World War.
Technically, of course, the provisions of the lex RAF could not apply to
Croissant, as there was no way to make them retroactive. The juridical way
of circumventing this barrier to criminalization was rather elegant. It was
said that the passing-on of the information to Bernhard Braun (the only
one of the 33 prisoners who received the informations through Croissant)
was illegal because the informations contained material not pertaining to
lawful defense. As an example the judge cited the communication between
one prisoner and another (Ulrike Meinhof) reproaching Ms. Meinhof for her
resigning attitude. The answer was a self-critique of Ms. Meinhof which the
judge saw as a "frightening testimony of self-humiliation" [ 12].
Supplying the books ordered by another prisoner, Gerhard Mtiller, was
seen as a second illegal act. Mi~ller, a onetime RAF-member, at the time of
his contacts with Croissant had just secretly passed the lines and worked for
the Secret Service. His book orders were mostly of a radical kind: he ordered
books on psychological warfare, on weapon systems, weapon catalogues,
manuals for electricians, etc. - many of his orders were turned down or
simply ignored by the lawyers, others were procured.
There is little doubt that the lawyers' support of a hunger-strike aimed
at improving the debilitating conditions of imprisonment (and the exchange
of notes between the two pre-trial detainees pertaining to the attitude
towards the hunger-strike) was perfectly legal. Furthermore the condemnation
of Croissant for "tightening group cohesion" by means of the information
service was unjustified. Croissant's actions were remote from anything
resembling illegal support of a prisoners' conspiracy. Even the book-orders,
the second point in the verdict, look more like a trick played upon Croissant
by an agent provocateur than like a criminal act which he himself had
perpetrated. How was it that all the books delivered to Milller were introduced
legally and with the stamp of approval by the prison authorities?
How had one book, the delivery of which to Miiller resulted in Croissant
being sentenced been perfectly legally borrowed from the official prison
library? These questions and others reveal variables other than the "overidentification"
of psychopathic lawyers.
The simple key to the crime of Klaus Croissant is the intensive dislike
with which political lawyers are being met in Germany. As one observer
said: "the mentioning of Croissant's name alone has the effect of showing
a red bandana to a bull" [13]. One can trace, for instance, an "urge" of
government officials and judges to eliminate political trials altogether. They
expose the very delicate problems of power, envy, and identification. A
typical technique of neutralization was used by the presiding Judge Strohbusch
when he insisted that "it would be totally beside the point to believe that the trial against Dr. Croissant be a 'political' trial, whatever that slogan
may mean" [ 14].
The "urge" hypothesis is insufficient, however. There must be more
behind the press campaigns, the false informations, the huge pretrial publicity,
and the strategic invasion of the defense camp. The "urge" hypothesis
cannot explain why a whole bureaucracy collectively arranged for the
secret and illegal monitoring of Croissant's conversation with one of his
clients in the Stammheim prison building.
To uncover the reasons behind the intentions pursued with the criminalization
of the defense one may compare the likely outcome of the public
discourse on terrorism had these measures not been taken with the outcome
gained by the strategy applied. First we consider what would have happened
if the State apparatus had done without illegal manoeuvers. In this case,
nothing could have prevented the philosophy of the Baader-Meinhof group
being explained in the courtroom and distributed by the media. The urban
guerilla, to be sure, would have been incarcerated for a long time - be it
five, ten or fifteen years. Legally, the prisoners would have had the same
kind of trial as "normal" prisoners.
Criminalization of the defense per se, on the other hand, transcended
the mere juridical sphere in its effects: it functioned as a means to depoliticize
the trial. All statements, explanations and moves of the defense were
subject to classification not in an attempt to shed light on the motives of
the guerilla, but as evidence of preparation and support of conspiratorial
activity.
This process of neutralizing the potential impact of the defense on public
opinion began long before the trial was opened, and after the trial began
every activity of the lawyers was examined with only one question in mind:
"what crime are they preparing now?" For instance, after the first days of
the trial had elapsed without the indictment having been read, the headlines
already stated: "Defense tactics in Baader-Meinhof trial may help escape
plans" [ 15 ].
Criminalization of the defense can also be considered as a type of psychological
warfare. It permits or creates the impression that for crimes like
the ones of the RAF there is no defense, no explanation even, except for
those who are ready to identify with terrorism themselves. It is therefore a
concealed warning to all those who believe that it is possible to distinguish
between the legitimacy of the guerilla's goals and the illegality/illegitimacy
of the means employed. This kind of sympathy was widespread when the
trial of the Baader-Meinhof group opened, and it was this radical opposition
to the dominant social and political system that was perceived as a threat
to government legitimacy. A statement of Dr. Herold, President of theFederal Police Office (BKA), contained in the official files of the Baader-
Meinhof trial lends striking evidence to this hypothesis. He, declared in 1972:
The last opinion poll by Emnid reflects a growth of sympathies in circles of youths, especially
among apprentices and schoolchildren, for the Baader-Meinhof gang. Solidarity has ... spread
significantly ... [16].
17.5 percent of a representative sample had admitted sympathies for the
RAF in 1972; every seventh citizen even replied "yes" when asked if he
would put up with penal prosecution for actions in support of RAF members
like providing food, shelter etc. [ 17]. From this survey Dr. Herold concluded
that, "we are dealing with a problem of social policy. We must cut
the ground from under the feet of anarchism .... If the revolution doesn't
come from above in the near future, then it will certainly come very soon
from below" [ 181.
The final aim of the terrorist trials as well as the staged trials of the
defense was political in nature, not juridical.
To assert that this is peculiar to fascism, as Croissant repeatedly did himself
[ 19], does not pinpoint the real issue, though. History shows many instances
of criminalization of the defense, before and after fascism, when
the legitimacy of the rulers was directly and unrepentantly challenged. In
most cases, the lawyers knew what to expect and refused counsel. Remember,
for instance, the case of Jeronimo Caserio, who, after he had stabbed
the French president to death in 1894, found it impossible to obtain a
defense attorney. Auguste Vaillant, the anarchist who threw a firebomb into
the chambre des Drputrs in Paris in 1893, did not have the same problem:
his request for a lawyer was simply delayed long enough by the judiciary
so as to effectively deny him a defense. Only very few anarchists or urban
guerillas have been as lucky as Emile Henry who rose to fame with his
bombing of the caf6 Terminus in Paris, and was accepted by a lawyer. This
lawyer, however, (Maftre Hornbostel) was a young man and this was his
first case. He never believed he could save his client's life, but he was sure
that his speech would leave a mark in history. Consequently he followed
the trial only sporadically, concentrating on his rhetoric lessons at the
Comrdie Franqaise, carefully preparing his plea. Unluckily, his defense
summary was disastrous and made even Henry's worst enemies agree with his
friends that he had not deserved such a poor representation [20].
Hanno Ktihnert writes,
When it comes to crimes which to many look as ff they could endanger the very existence of the
State, even erudite officials may fall prey to the temptation of redefining the lawful defense of
a client as an aid to the crimes of which his clients are being accused [21].
The crime of Klaus Croissant, it seems, was his very equanimity in the
face of this ever present danger. His boldness was in trying a serious legal
defense against the overriding political interests of the dominant powers. Is
there a lesson to be drawn out of his case? Perhaps: if you want to defend
a regicide and not be hanged yourself, do as the lawyer of Max Hbdel, the
would-be assassin of a German Emperor, did in his plea in 1878 - show
sincere repentance, admit that you failed in accepting to defend such a
heinous criminal, just beg the court's pardon, and say, "Forgive me!"
Notes
1 Bild-Zeitung, 21 Aug. 1973.
2 Stroebele, C. (1976). "Verteidiger im Verfahren gegen die RAF. Zu den Vorwfirfen, zur Praxis
und zum Selbstverstbhdnis", in Croissant, C., K. Groenewold, U.K. Preuss, O. Schily, Ch. Stroebele
(1976). Politische Prozesse ohne Verteidigung? Berlin: Wagenbach, p. 43. This was a statement
by The German Supreme Court BGH, 20 Jan. 1975.
3 Croissant, K. (1976). "Verteidigeraussehluss in politisehen Prozessen. Instrument des Neuen
Faschismus", in C. Croissant et al., Ibid., p. 24.
4 Dokumentation (1974). Dokumentation der Bundesregierung iiber die A ktivit6"ten anarchistischer
Gewaltt~'ter in der Bundesrepublik, Bonn: Bundespresseamt.
5 Croissant, K. (1976), op. cir., p. 29.
6 Buback, in Croissant, Ibid., p. 22.
7 Revon, C. (1978). "Terrorisme et d~fense politique" Ddviance et Soci~t~ 2: 185-192.
8 Ibid.
9 Miiller-Luckmann, E, (1977). "Flucht aus dem ewigen Zwiespalt," 31 Der Spiegel 42 (10 Oct.
1977): 38.
10 Mauz, G. (1976). "Es ist nicht immer Haarmann, der kommt ...," in Croissant et al. (1976),
op. eit., p. 8.
11 Cobler, S. (1978). Law & Order in West Germany, Haxmondsworth: Penguin; Scheerer, S. (1978).
"Law Making in a State of Siege", unpubl, paper given at the 6th conference of the European
Group for the Study of Deviance and Social Control, Sept. 6-9, 1978, at Bremen.
12 Strohbusch, in Watts, M. (1979). "Warum wurde Croissant eigentlich verurteilt?", Info~mationsdienst
zur Verbreitung unterbliebener Nachrichten, 270 (24 Feb. 1979): 5.
13 Birkenmaler, W. (1979). "Ein strenger Spruch", in Stammheim keine Milde ffir den 'Info-Anwalt'.
Die Zeit 9 (23 Feb. 1979): 6.
14 Watts, M. op. cit., p. 6.
15 Caption of the Westdeutsche Allgemeine Zeitung, 13 Aug. 1975.
16 Der Baader-MeinhofReport (1972). Dokumente, Analysen, Zusammenhffnge; aus den Akten des
Bundeskriminalamts, d. Sonderkomm. Bonn und des Bundesamts f/Jr Verfassungsschutz. Mainz:
v. Hase und KShler.
17 Kepplinger, H.M. (1974). "Statusdevianz und Meinungsdevianz. Die Sympathisanten der Baader-
Meinhof-Gruppe", 26 KZfSS 770-800.
18 Herold, in Der Stern, June, 1972.
19 Croissant (1976). op. cit.; Croissant, K. (1978a). "Politische Verteidigung - Nicht Identifikation,"
Informationsdienst zur Verbreitung unterbliebener Nachrichten 225 (11 Nov. 1978):
12-16.
20 See for example , Ma~ron, J. (1975). Le mouvement anarchiste en France Vol. I, Paris; and
references therein.
21 K//hnert, H. (1972). "Strafverteidiger unter Komplizen-Verdacht", Frankfurter Hefte 27: 703-
711.


*[https://socialhistoryportal.org/sites/default/files/raf/0019760716_01_2.pdf Dokumente zur Verhaftung 1976]
*[https://socialhistoryportal.org/sites/default/files/raf/0019760716_01_2.pdf Dokumente zur Verhaftung 1976]
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