Rolf Gössner

Lecture on the occasion of the award ceremony of the Hans Litten Prize by the Association of Democratic Jurists (VDJ)

Since 1970, the lawyer and publicist Rolf Gössner has been observed and researched by the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz) for four decades. The disproportionate and fundamental rights violating, almost forty years of continuous surveillance and investigation, has not prevented him from publicly speaking out and actively standing up for human rights. This month he was awarded the Hans Litten Prize of the Association of Democratic Lawyers, named after the lawyer and member of the resistance against the Nazi regime. – The Editors

October 10, 2020

Dear colleagues of the Association of Democratic Lawyers, Ladies and Gentlemen, dear friends,

First of all, I would like to thank the VDJ Board of Directors for awarding me the Hans Litten Prize and for the support and trust you have placed in me and my work on civil rights. I am really very pleased – especially in times like these.

I would also like to thank Rupert von Plottnitz for his sensitive and multi-faceted laudatory speech – for the respectful words of a laudator whose civil rights-oriented work and his eventful life I truly appreciate.

(1) Let me make it clear right at the beginning of my reply that in the course of my professional and working life I have only done what I thought was right, important and necessary and what I am still trying to do today in various ways as best I can. Well, that there are also prizes and honors for this, I only found out in later years and now I experience it again today. I have only tried to keep my immune system as active as possible against mostly governmental attacks on basic rights and freedoms over the decades – which is why I also faced the Corona complex this spring by intervening as soberly and deliberately as possible in the controversial, highly emotional and morally charged debate about the Corona state of emergency and the subsequent ” relaxations” of a so-called “new normality”. I will come back to this later.

(2) Incidentally, this journalistic intervention did not remain without vehement reactions, just as my work had already been accompanied by considerable rejections and confrontations – mostly by the state. There were quite tedious decades of teasing and being monitored, of accusations of contact guilt and of checking people’s attitudes, and there were massive threats, such as after the publication of my first book, “Der Apparat” (The Apparatus), written with Uwe Herzog.
Investigations into the police, arrest, running the gauntlet and police beating as a taz journalist at that time at the public recruit swearing-in ceremony in Bremen, bans on events at universities, further interference in the freedom of teaching and opinion or entry in a Nazi list as a ” Volksverräter” (traitor of the people) – and then, resulting from such experiences: the problem with the scissors in the head for fear of the consequences of one’s own work.

Swimming against the current for decades in the hardcore segment “internal security” with the exposure of scandals, abuses and misdevelopments, with severe criticism of the police, the secret service and the state – that was, I confess, quite exhausting and only to be endured with a good portion of humor and composure. Nevertheless: everything still relatively manageable and ultimately without lasting damage. I was able to make the best use of some of the attacks I experienced myself for my further work on civil rights: practically as vivid lessons in political science, democracy and civil rights.

(3) Yes, and here at the latest the differences to the life and fate of Hans Litten, the eponym of this prize for democratic commitment, become clear, who is to be remembered in this context. I feel honored to receive this award with his name. But I cannot really do justice to his example and his courage – nor, by the way, to some of the previous prizewinners. After all, it does make a decisive difference where and in what times the legal work worthy of distinction takes place in accordance with the VDJ criteria, which are: “uncompromisingly committed to the law,” “not avoiding confrontation with political power interests and their institutions,” “characterized to a particularly high degree by democratic and legal-political commitment”.

(4) Hans Litten risked an infinite amount in his time and had to pay for his legal and legal commitment with his life. Hans Litten is regarded as one of the most important lawyers of the labor movement in the Weimar Republic; he was a courageous anti-fascist lawyer and criminal defense attorney, representing and defending resistant workers, victims of police assaults and Nazi violence, and suffering workers’ families. In a criminal trial in 1931, in which he represented workers injured by an SA roll-commando as joint plaintiffs, he trapped Adolf Hitler, whose hearing as a witness he had secured. Shortly after the Nazi seizure of power and the Reichstag fire of 1933, Litten was interned and deported to several concentration camps, most recently to Dachau, where after five years in prison he succumbed to the mistreatment of the Nazi terrorists and was systematically driven to suicide. He died 82 years ago in 1938, just 34 years young.

I. Change of times and topics: Following these remarks on the Hans Litten Prize, I would like to focus on two main topics today on the occasion of this award ceremony:

“Fundamental rights in times of Corona”, as already mentioned. But before that, let’s look into secret abysses together and start with the prizewinner – the VDJ.

(1) We are not only united by our fruitful cooperation in projects such as the Fundamental Rights Report. On the situation of civil and human rights in Germany. We are not only united by basic human rights, social, democratic and anti-fascist convictions – we are also united by something else: It is our common experience with a secret state institution, which listens to the euphemistic code name “Verfassungsschutz” (VS). Because both the VDJ as an organization and I as an individual were for years and decades in the sights of this domestic secret service.

Since its foundation in the 1970s, the VDJ had been regarded as an anti-constitutional organization, which, stigmatized in this way, was reflected in the reports of the VS until the late 1980s. Probably for the simple reason that it was the only legal organization, as Norman Paech recently wrote, “in which even communists could organize themselves.” And just eight years ago (2012), for example, in the Free State of Thuringia, it was listed in a government decree together with many other associations as “left-wing extremist influenced”. Thus, applicants for civil service could be rejected solely because of their VDJ membership and thus because of doubts about their loyalty to the constitution. It was only when the VDJ threatened to file an administrative court action that it was removed from the list.

(2) My own “Verfassungsschutz” story, which I would now like to discuss, has unfortunately not yet come to an end. Since 1970 I have been observed and researched by the Federal Office for the Protection of the Constitution for four decades – already as a law student and since then throughout my working life in all my professional and honorary functions as a publicist, lawyer, parliamentary advisor, later also as President of the International League for Human Rights, since 2007 also as Deputy Judge at the State Court of the Free Hanseatic City of Bremen.

This long-term surveillance thus affects the greater part of my conscious life – or rather what the “Verfassungsschutz” (Office for the Protection of the Constitution) with its selective perception has made of this life: In written pleadings and a personal file of over 2,000 pages, he draws a picture torn out of contemporary historical contexts and constructs abstruse accusations. The result is a denunciatory image of an enemy and a distorted image in which I do not recognize myself and which, at first glance at least, would frighten me. With its obsessive mind control and its official interpretation, or better: misinterpretation, the service had taken over my political life, my professional and social contacts.

For example, I am accused of having professional contacts to allegedly “left-wing extremist” and “left-wing extremist-influenced” groups and organizers, such as the “Association of Persecuted Persons of the Nazi Regime” (VVN), which I represented as a lawyer or to which I gave lectures, but also to allegedly “left-wing extremist” press organs, such as the “Junge Welt”, in which I published – among many other media – or to which I gave interviews. From completely legal and legitimate professional contacts, a ‘contact debt’ and alleged support effects were practically constructed.

Later, the “Verfassungsschutz” also exposed the contents of my writings – books, articles, interviews – to suspicion of extremism and claimed, among other things, the following: With my criticism of the state, the police and the secret service, as well as with my “agitation against occupational bans” I would defame the German security organs and thus want to make the state defenseless against its inner enemies. The VS thus also assumes the sovereignty of interpretation over my texts and exercises it in an almost inquisitorial manner. My maxim in contrast to this is: Civil and human rights work is unthinkable without criticism of the state and society!

This secret service control caused me particular problems, especially when dealing with clients and informants, because under observation conditions there are no more professional secrets, no more confidentiality. In order to protect my informants and whistleblowers as well as possible as a publicist in the course of my often delicate research in the area of internal security, I had to make extensive pull-ups. In individual cases, contacts had to be avoided or broken off. This also applies to my work as a lawyer, parliamentarian and human rights activist. In any case, professional secrets such as client confidentiality and the protection of informants could no longer be guaranteed throughout, and my freedom of profession and professional practice were more than impaired.

I filed a complaint against this secret service surveillance for violation of my fundamental rights to freedom of opinion, freedom of the press, and freedom of occupation, as well as to informational self-determination. After a trial lasting over five years, during which the surveillance was discontinued, the Administrative Court of Cologne declared this long-term investigation in 2011 to be disproportionate and contrary to fundamental rights. However, the German government appealed against this decision. After a further seven years, the Higher Administrative Court of North Rhine-Westphalia declared the entire monitoring in 2018 also to be contrary to fundamental rights – and the federal government promptly appealed against the ruling. This means that after almost 40 years of monitoring and more than 15 years of proceedings, i.e. after well over half a century, the case is now pending before the Federal Administrative Court in Leipzig – the outcome and the end are uncertain. There may still be plenty of time before the final clarification is reached. Actually a case for the Federal Court of Audit – because of waste of public money.

By the way, I found it more than shocking with what ideological doggedness and perseverance this domestic secret service – along with many other left-wing groups and anti-fascists – had observed me and my civil rights commitment for decades – while at the same time neo-Nazis, right-wing violence and terror could develop almost undisturbed on the other side – partly “cared for” by the state via an uncontrollable system of vice-people – and draw their blood trail through the Republic: with a total of more than 200 deaths since 1990 alone.

And right-wing extremist chat groups and Nazi networks have long since developed in the police, the Bundeswehr and the secret services, from which people are massively threatened – within the armed security organs of the state monopoly on the use of force, of all places. This is a scandalous and highly dangerous development, which once again completely escaped the “Verfassungsschutz” as the “early warning system” it is supposed to be – as it did in the case of the NSU complex. All this must finally be independently and mercilessly processed in order to draw appropriate structural consequences. And this includes, among other things: Measures against institutional racism, against racial profiling, “cop culture” and esprit de corps, as well as the establishment of independent control and complaint bodies, which human and civil rights organizations such as Amnesty International or VDJ have been demanding for years for good reasons.

Even the scandal-prone “Verfassungsschutz” must not be allowed to get away scot-free with this urgently needed structural change. After all, these domestic secret services at the federal and state levels are alien elements in democracy to which the democratic principles of transparency and controllability apply only to a very limited extent. To put it bluntly: This is where the democratic sector ends, as is so often the case. For this reason alone, the “Verfassungsschutz” should be dissolved in a socially acceptable manner at the federal and state levels – especially in its manifestation as an intelligence service, precisely because of its uncontrollable V-people and system-inherent system of darkening. This is fully in accordance with the Basic Law and the constitutions of the states, because according to this law the “Verfassungsschutz” does not have to be a secret service.

II. change of scene: thoughts and theses on the Corona state of emergency, on “new normality” and the consequences

So, now we leave the secret realms and venture into rather mined terrain: As already announced, I would like to talk about human rights and democracy in a state of emergency and in the so-called “new normality”. In the spring I found it very difficult to get involved in this issue, to question corona defense measures under civil law and to criticize publicly – because of the very real fear of being seen as a “corona trivializer”, a “fundamental rights freak” or an irresponsible freedom apostle. After all, Corona, as it is repeatedly said, is about nothing less than “life and death”. In any case, the moral pressure and fear were immense and were downright forced by the government and the mass media. And so it came about that the vast majority of the population accepted the lockdown and the defensive measures taken as “without alternative”, that many people, associations and also the parliamentary opposition, including the Left and the Greens, supported the government course to a large extent for too long. For various reasons, they held back with their criticism and were reluctant to question even presumably disproportionate encroachments on fundamental rights, despite sometimes contradictory and arbitrary measures, despite the initial unconstitutional undermining of freedom of assembly, despite the tightening of laws at breakneck speed and without expert hearings, despite further shifts in the political power structure in favor of the executive branch, and despite the further disempowerment of Parliament.

(1) In the face of such reticence or even conflict aversion, I felt downright urged to contribute with my skeptical thoughts and pointed theses on the nightmarish Corona state of emergency and the “new normality” to offer civil rights orientation for an open, critical and controversial debate in this oppressive time of great uncertainty. For the social debate, too, has for too long suffered – not least in the media – from fear, one-sidedness and pressure to conform, including defamation and exclusion. At any rate, the culture of discussion and diversity of opinion have suffered greatly in the Corona crisis and are still suffering – even though doubts, criticism and dissent have long since become louder, but sometimes also go astray in a bizarre or dangerous way.

With so much immune-depressing, easily manipulated fear and rarely experienced concord, skepticism and critical-constructive questioning of alleged certainties and executive-authoritarian decrees, which strongly permeate all our lives, were and are not only indicated but urgently required – as well as the examination of hard fundamental rights interventions for proportionality and constitutionality. After all, this is what characterizes a living democracy – not only in good weather, but especially in times of great uncertainty and danger lurking not only from one direction, but from different directions, especially in times that weigh heavily not only on the present, but especially on our future. In such times, democratic lawyers are especially challenged.

(2) Because the corona virus not only endangers the health and lives of people, but also damages elementary basic rights and freedoms, the rule of law and democracy – “thanks” to those serious corona defense measures that are intended to serve the declared and important goal of saving the health care system from collapse and protecting health and life. Defensive measures which, however, at the same time – as never before in the history of the Federal Republic of Germany – intervene deeply in the everyday life of all people, causing serious individual, family, educational, professional, social, cultural and economic damage and dramatic long-term consequences, the extent of which will continue to cause the Federal Republic of Germany, its society and its inhabitants serious problems for a long time to come. It was the historian René Schlott who warned against “strangling open society in this way in order to save it.”

(3) Although much has been done right in this country with sensible protective rules, unfortunately some things have also been done wrong, too little differentiated and not proportionately. There are well-founded doubts about the appropriateness of some of the panicky and blanketly imposed lockdown measures based on unsecured data. With regional, local and target-group-oriented, yet responsible action, many damages and personal misery could have been prevented.

Even the judiciary, which at first hardly questioned the executive restrictions on freedom, has now lifted state corona measures in fifty or more cases for illegality or unconstitutionality. This alone should give food for thought. In view of the current situation regarding corona infection, which must also be assessed in a more differentiated manner than in the past, the courts are increasingly calling for more differentiated consideration and treatment of individual cases. This also applies to times of increased infection rates, as we are currently experiencing. I am thinking here only of the questionable recent accommodation bans and quarantine requirements for travelers from domestic risk areas.

(4) In all this, we should take into account what has been temporarily forgotten: Social upheavals and health consequences caused by the restrictions on our daily lives must also be included in a constitutionally required balancing of rights to freedom, health and life. For the Basic Law does not recognize a “super basic right of health” that overshadows all other basic rights, just as it does not recognize a “super basic right of security”. Also the (survival) chances of life (in) a society, in particular also for socially disadvantaged humans and groups are to be considered appropriately with considerations of legal interests. Health protection and freedom rights must not be played off against each other, human life must not be played off against human rights.

(5) And another warning for the future: The state of emergency in the modern preventive state, as it has long since developed in this country, tends to mutate into a legal normal state even after crisis management has been completed; this can lead to a dangerous acceleration of the course that has long been taken towards a preventive authoritarian security, control and surveillance state. This has become very clear after 9/11. For this reason, the highest level of vigilance is already called for, so that the new state of emergency in health policy does not gradually normalize – after all, there has long been talk of “new normality” for an indefinite period of time; and the highest level of vigilance is already called for, so that the authoritarian turnaround, already long in evidence, does not become entrenched – with a paternalistic state, a restrictive and overregulated society, and a highly controlled and cramped everyday life.

(6) Im Übrigen plädiere ich für die Einrichtung unabhängiger interdisziplinärer Kommissionen in Bund und Ländern. Deren Aufgabe sollte es sein, die Politik in der „Corona-Krise“ kritisch zu begleiten sowie Erforderlichkeit und Verhältnismäßigkeit staatlicher Abwehrmaßnahmen und ihre sozialen, psychischen und wirtschaftlichen Folgen zu evaluieren. Aus den so gewonnenen Erkenntnissen ließen sich dann Lehren ziehen für eine differenziertere und damit verhältnismäßige Bewältigung der weiteren Corona-Entwicklung und künftiger

6) I also advocate the establishment of independent interdisciplinary commissions at federal and state level. Their task should be to critically accompany politics in the “corona crisis” and to evaluate the necessity and proportionality of state defensive measures and their social, psychological and economic consequences. Lessons could then be drawn from the insights gained in this way for a more differentiated and thus proportionate management of further corona development and future epidemics.

But it must also be about developing and implementing perspectives for overdue structural changes in society, health policy, socioeconomic, ecological and peace policy – in the direction of equal opportunities and social justice, sustainability and climate protection, disarmament and peace, in short: for a fairer and more sustainable society.

Yes, there would be so much more to say about these problem areas, which have only been touched upon here. But unfortunately my time budget has long since been exhausted. That is why I would like to refer you to a recently published brochure entitled Human Rights and Democracy in a State of Emergency, in which you can read a great deal about this. It is the extended and updated long version of my thoughts and theses on the Corona lockdown, the ‘new normality’ and the consequences – thankfully edited by the Association of Democratic Lawyers and published by the publishing house Ossietzky. A productive cooperation for which I am very grateful (see info below).

Finally, I would like to thank the VDJ, Rupert von Plottnitz and all those who participated today for this award ceremony under difficult corona conditions – and also my fellow combatants and companions, because I would probably not have been able to do all this alone.

And then, as I like to do on such occasions, I would like to remind you of a saying by the writer Günther Eich, whom I had carefully chosen as an essay topic for my Abitur in 1967 and which in a way became my life motto: “Be discomforting, be sand, not oil in the gears of the world.” This sentence, this call is especially valid in these difficult times of pandemics and great dangers – which, as I said, lurk from very different directions. Today’s award ceremony will hopefully give me the strength to remain true to this life motto. Let us all together remain sensitive to fundamental rights – even in times of Corona. Many thanks!

The complete award speech by Rolf Gössner is also available on the VdJ website: www.vdj.de/mitteilungen/nachrichten/nachricht/dankrede-des-preistraegers-dr-rolf-goessner/

Dr. Rolf Gössner, lawyer and publicist, member of the board of trustees of the International League for Human Rights (www.ilmr.de) and deputy judge at the State Court of the Free Hanseatic City of Bremen. Co-editor of the bi-weekly journal for politics / culture / economy “Ossietzky” (www.ossietzky.net) and the “Grundrechte-Report. Zur Lage der Bürger- und Menschenrechte in Deutschland” (www.grundrechte-report.de) and member of the jury for the negative award “BigBrotherAward” (www.bigbrotherawards.de). Expert in legislative procedures of the Bundestag and state parliaments. Author/editor of numerous books and articles on internal security (secret services, police, justice), civil rights and democratic constitutional state. Awarded the Theodor Heuss Medal, the Cologne Charlemagne Prize for Committed Literature and Journalism, the Culture and Peace Prize of the Villa Ichon in Bremen and the Hans Litten Prize of the Association of Democratic Jurists (VdJ; www.vdj.de).

Header picture: Jakob Gatzka (BUXUS STIFTUNG)
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