Autor/Autorin
In August of this year, the main committee of Bochum Council rejected a motion to rename Konrad-Adenauer-Platz. Lawyer Dr Ralf Feldmann, who submitted the citizens‘ petition, discusses the research findings of Professor Dr Klaus-Dietmar Henke, head of the Independent Historical Commission for Research into the History of the Federal Intelligence Service BND 1945-1968, which prompted Feldmann to submit the petition. They prove it: Federal Chancellor Adenauer, together with his State Secretary Dr Hans Maria Globke, commentator on the Nuremberg Race Laws, and BND chief Reinhard Gehlen, had political opponents – parties, especially the SPD, and individuals – illegally spied on and fought against for years. In an interview with the Süddeutsche Zeitung , Klaus-Dietmar Henke described this as a „ crime against democracy“ in a historical sense. Feldmann calls it an „ abyss of constitutional treason “ (more about the discussion of his motion here ).
The final volume 15 of the Independent Historical Commission’s research findings on the BND is now being published: NS-Kontinuitäten im BND: Rekrutierung, Diskurse, Vernetzungen. Christoph Links Verlag, Berlin 2022, 832 pages, written by Dr Gerhard Sälter. See also the current television documentary by Christine Rütten on 10 October 2022, 11.20 pm on ARD: „ Mörder bevorzugt: Wie der BND NS-Verbrecher rekrutierte „. The book was reviewed by Willi Winker in the Süddeutsche Zeitung on 30 September 2022: „ Die Mörderbande von Pullach “ . The articles in the SZ are paywalled.
The editorial team
Governments are bound by the constitutional order, by law and justice. With this fundamental, unalterable principle, the Basic Law outlaws any state power outside the law. Our constitution is not based on the pre-legal interests of an abstract state – that would be those of its rulers – but on the fundamental and human rights of its citizens. All state power should emanate from them. The principle of equality implies the multi-party principle, equal opportunities for the parties and the right to opposition in the formation of the will of the state. State power serves fundamental and human rights. Interventions in these rights require the basis of a constitutional law that creates and limits the government’s competences. State power that arrogates its own, unlawful competences for the sake of power breaks the foundations of the constitution.
Human dignity and the right to the free development of one’s personality prohibit turning people into objects of state power. The state is fundamentally prohibited from secretly spying on individuals‘ lives and is only permitted in very exceptional cases in the interests of overriding constitutional interests, and never without a legal basis. The ban on spying applies in particular when people come together in parties to form political opinions, i.e. to constitute state power. The free formation of the will of democratic parties, undisturbed by the state, is one of the elementary basic conditions of democracy. Governments may not use state power, repression and communication tools to promote or hinder it, let alone investigate it. This would also be a violation of the competitive chances of opposition parties, which would be contrary to equality.
These principles, clearly stated in the Basic Law and solemnly and not without pathos affirmed by the Federal Constitutional Court in major decisions, must be recalled in order to measure the extent of the unconstitutionality of the first Chancellor of the Federal Republic of Germany, who continued to use the foreign intelligence service BND to consolidate and defend his own political power in the domestic power struggle.
Throughout his time in office, Konrad Adenauer used the BND and its predecessor, the Gehlen organisation, for domestic intelligence outside its actual remit – for domestic espionage and to combat political rivals and opponents. This is a key finding of the research work recently presented by Klaus-Dietmar Henke, Chairman of the Independent Historical Commission on the History of the Federal Intelligence Service (Geheime Dienste. The political domestic espionage of the BND in the Adenauer era. Berlin: Christoph Links Verlag, 2022, parts 1 and 2, 1461 p.) The systematic abuse of power by the foreign intelligence service for personal purposes at home was organised in the Chancellery by State Secretary Globke, previously a commentator on the „Nuremberg Race Laws“ under National Socialism, now the administrative manager of the Chancellor’s political power who was irreplaceable for Adenauer, and the former Wehrmacht general Gehlen, who after the war set up a West German foreign intelligence service in the „Organisation Gehlen“ named after him, initially under the care of the CIA, which became the BND in 1956. Henke comes to the conclusion that the BND sought its illegal vocation in domestic espionage during Adenauer’s time, with only scant successes and scandalous failures in the actual profession of foreign intelligence, and found it with constant encouragement and encouragement from the Chancellery.
The main victim of this illegal abuse of power among the parties was the SPD. Almost 500 confidential written reports from the SPD party executive board about BND spies continuously reached Adenauer’s chancellery. Siegfried Ziegler, one of the very few BND employees with an SPD party membership, and above all Siegfried Ortloff were the main players in the SPD spying operation. Ortloff, an émigré during the Nazi era and confidant of party chairman Ollenhauer, had risen to the position of head of security and personnel as a permanently employed functionary and, as secretary, was responsible for preparing the meetings of the SPD’s top committees, which he attended. He was also responsible for security policy issues and thus had an insight into the Gehlen organisation and the BND, where he came into contact and became friends with Siegfried Ziegler. The BND also had around 20 less important informants from the SPD.
Klaus-Dietmar Henke summarises the importance of the secret knowledge that Adenauer continuously received via State Secretary Globke, who was responsible for the BND, sometimes more than the SPD committee members received their minutes:
„ Siegfried Ortloff, with his reporting from the board and presidium meetings, wrote his very own history of the SPD in the decisive years of its political moulting. A comparison with the authentic party minutes shows that numerous facts, some controversies and many nuances that would otherwise have been lost have come down to us in this way. The direct political significance of the enormous outflow of information to the CDU chairman is palpable and can be read in his sometimes vehement comments and requests for consultation. Nothing was missing: not the financial situation of the opposition party: not the planning of its election campaigns along with a meticulous breakdown of the number of posters, brochures and adverts; not the deliberations on the best mode of attack against the Chancellor; not the tracing of the internal lines of conflict; not the vivid explanation of the tensions between the party leadership and the Bundestag parliamentary group; not the appraisal of the international pecking order; not the review of debates in the Bundestag; not the discussions about the SPD’s position on ‚rearmament‘, about its campaigns against the ’nuclear armament‘ of the Bundeswehr; not the shaping of the Godesberg Programme and also not the intelligence monitoring of the turnaround in Germany policy in 1960. Adenauer and Globke were also able to get a fresh picture of the often very frank bulletins on the health and mental state of individual comrades, the dodges, power ambitions and chances of power of their friends and opponents – Brandt, Erler, Heine, Ollenhauer, Schmid, Wehner and other less prominent figures – on an almost daily basis“. ( Henke , Geheime Dienste, p. 1413)
The daily news on leadership issues, such as the process of replacing Ollenhauer and the slow rise of Willy Brandt and the ongoing positioning of Herbert Wehner, who was recognised as the driving party strategist, were certainly particularly important. The foreign intelligence service was tasked with tracking down and compiling defamatory material against SPD politicians. Investigations into the activities of the emigrant Willy Brandt in the Spanish Civil War and in Norway did not yield the desired results, so the Christian politician Adenauer focussed on the emigration itself and Brandt’s illegitimate birth („Brandt alias Frahm“) in all malice. The BND provided a register of prominent Social Democrats with their ideological positions and fulfilled orders for individual investigations of certain „suspicious“ people in the party and trade unions. Reports on the internal party processes of a rapprochement between the SPD and FDP, for example in 1956 in the context of the overthrow of CDU Minister President Karl Arnold in North Rhine-Westphalia: the first time a social-liberal coalition had done so and a threat to the political power of the Chancellor and his party.
Just how consistently Adenauer used the state resources entrusted to him to maintain his own power and that of his party can be seen in the BND’s domestic espionage against his long-standing coalition partner, the FDP. Outstanding informants here were politicians from the first and second ranks, such as the later Federal Minister of Construction Victor-Emanuel Preusker and „Wolfgang Döring, who was downright hated by the Federal Chancellor, highly versatile and soon counted among the party reformers“, who played a decisive role in the change of coalition in North Rhine-Westphalia. One of the BND’s top informants was August Hoppe, a founding member of the FDP in North Rhine-Westphalia and long-time senior NWDR/WDR editor, confidant of the later national conservative party chairman Erich Mende. For Adenauer, the FDP was an insecure coalition partner, not only because of his ongoing dispute with FDP chairman Thomas Dehler, for example over German policy, but also because of the controversies between national and social liberals. Particularly in coalition crises and in the decision-making phases for future coalitions, Adenauer was always well prepared for his own reactions at an early stage thanks to a dense sequence of reports from his foreign secret service on the formation of opinion in the FDP.
„According to Klaus-Dietmar Henke, „The numerous briefings from the Chancellor’s foreign intelligence service related just as much to personnel and other internal matters as to coalition policy dodges or programme decisions in the social-liberal camps of the Free Democrats. The party chairman and Minister of Justice Thomas Dehler, who was booted out early on by Adenauer, had already marvelled at the fact that his great adversary was so ‚brilliantly informed‘ in party matters. The later FDP leader Erich Mende, who often took his party colleague Hoppe into his confidence, went on record at a meeting of the federal executive committee. ‚The Federal Chancellor had repeatedly stated in his presence that he would receive detailed information about all FDP meetings soon afterwards‘.“ (Henke, Geheime Dienste , p. 1407)
So there was suspicion in the FDP; even Rudolf Augstein, whose Spiegel magazine maintained contacts with the BND via leading journalists, some of whom were SS-burdened, suspected secret informants. In the SPD, the government’s level of information on internal party matters was sometimes met with scepticism. Gehlen responded to enquiries in personal dealings with leading Social Democrats with exquisite politeness and the brazen lie that the BND naturally did not engage in domestic espionage because it was forbidden to do so. An internal directive expressly prevents this.
An important factor in maintaining power in the post-totalitarian society of the Federal Republic was the defence of the past against attacks on the functional elites of National Socialism, who had soon regained a foothold everywhere in state and society. Adenauer’s policy of open doors for collaborators and accomplices in the National Socialist state of human extermination made him vulnerable to attack, outside Germany anyway, and within society among those who, contrary to widespread calls for a line to be drawn, resisted silence and insisted that the perpetrators be investigated and punished. Adolf Arndt, the SPD’s outstanding right-wing politician, had already posed the question in the Bundestag in 1950 : „Does the Federal Government consider people who were prominently involved in the National Socialist tyranny, does it consider people who, at least objectively as nihilistic instruments, have thus linked their names with inhumanity, to be suitable in the sense of the Basic Law to hold high public office today ?“ Adenauer answered this question by making Hans Globke his State Secretary. As a consultant in the Reich Ministry of the Interior, he was jointly responsible for the Nuremberg Race Laws, which provided the legal framework for marginalisation, discrimination and then mass extermination, and wrote the authoritative legal commentary on them. He was also responsible for the introduction of the „J“ in Jewish passports. The law that forced them to add „Sarah“ and „Israel“ to their first names was drafted by him. He was involved in the transfer of anti-Semitic laws and decrees to occupied territories. Adolf Arndt commented on this in the Bundestag in 1950: „ Anyone who, as a lawyer, documents such an act or atrocity as the Nuremberg Laws, apparently in a scientific manner, exposes himself to the accusation that what he has written there can hardly be labelled with anything other than legal prostitution.“ In the Wilhelmstrasse trial against his superior in the Reich Ministry of the Interior, Wilhelm Stuckart, for his involvement in the extermination of the Jews, Globke admitted as a witness that they had all known about the plan to systematically exterminate the Jews, but not „that it applied to all Jews“.
Attacks against Adenauer’s openness towards the perpetrators of the state of human extermination were constantly coming from the GDR and were easily denounced as communist propaganda, even if the seriousness of their factual substance could not be disputed. But equally committed people from democratic society, political opponents of Adenauer with integrity and a commitment to the past, who believed that a return of Nazi elites to influence and power would be disastrous, came forward with public criticism. Adenauer and Globke, as the main party concerned, had no qualms about using the foreign intelligence service BND, whose main actors pursued a similar interest, to target such critics domestically and make them the object of extensive secret service actions – abuse of power beyond the law and the constitution, not only against competing parties, but at least as bad against individual critical citizens.
Klaus-Dietmar Henke describes in detail such repression by state power – in this case in concerted action by the Chancellery, the Office for the Protection of the Constitution and the BND – using the example of Reinhard Strecker, whose tireless commitment to the politics of the past is also described in the Wikipedia article about him, which is well worth reading. As a student at the Free University of Berlin, he submitted two petitions to the Bundestag in 1958 against the inadequate legal reappraisal of National Socialist medical and judicial crimes and the continued employment of the perpetrators involved. In 1959, he initiated the exhibition „Unpunished Nazi Justice“. In cooperation with a broad spectrum of political youth groups and student associations (SDS, Liberaler Studentenbund, Evangelische Studentengemeinde), he created a travelling exhibition with photocopies from special court files, which was shown in 10 German university cities after its premiere at the seat of the Federal Court of Justice in Karlsruhe, and later also in Leiden, Amsterdam, Utrecht and Oxford. Translations of the material were also presented to members of the British House of Commons. All this – in the midst of the debate on the statute of limitations for Nazi murders – attracted public attention, as did a criminal complaint filed by Strecker on behalf of the SDS Federal Executive Committee against 43 former Nazi judges who had been reinstated on suspicion of obstruction of justice and manslaughter. In 1961, his book Dr Hans Globke. Aktenauszüge, Dokumente , material about his deep involvement in Nazi injustice.
The exhibition „Unpunished Nazi Justice“ was largely based on original files that Strecker and his friends in the GDR were able to view and copy. Many in politics and the media found such contacts unacceptable. However, Attorney General Max Güde publicly confirmed the authenticity of the documents presented and thus the purpose of the exhibition against all criticism, which even the SPD party executive – against its student organisation SDS – had joined. As a matter of course, Strecker’s activities led to him being observed by the Office for the Protection of the Constitution. Globke himself immediately called in the BND, which Adenauer instructed to fend off attacks on his state secretary. „Can we find out more about Strecker?“ was Globke’s intelligence request to the Office for the Protection of the Constitution and the BND. However, apart from „dubious connections with official bodies in the Soviet Occupation Zone, the Czech Republic and Poland as well as with radical left-wing elements in the Federal Republic“, the services were unable to find anything compromising. The BND summarised the personality of the critical citizen to the Chancellery as follows: „Strecker wears a goatee. He presents himself as an existentialist. Strecker’s motives for his work are difficult to recognise. He repeatedly emphasises his ‚urge for absolute truth‘. Strecker is highly self-absorbed, politically immature and obviously strongly impressed and influenced by the ‚documentaries‘ of Eastern propaganda“.
The BND tried to prevent the publication of the documentation on Globke with a large-scale secret service operation. It deployed undercover agents against Strecker, including – by exploiting personal trust – a good friend, through whom it found out the probable content, sources and their origin, mobilised pressure on the publisher to prevent the publication, ascertained the author’s modest personal and financial circumstances and considered buying the book from him, tried to obtain an advance copy in return for money and was finally able to send Globke a proof copy of the paperback in preparation. After its publication, the Chancellery prepared a „refutation pamphlet“ for public relations purposes. With the support of the BND, Globke took legal action and applied for an injunction against the distribution of the book. The BND found out about Strecker’s feelings of distress and sensitivity to pressure in the face of the legal threat from the informer, who must have been afraid for his family after his daughters had been threatened several times in kindergarten. On the whole, Globke did not have much to counter the facts. However, a few minor factual errors in the book prompted the parties involved to reach a settlement, after which the publisher gave in to the massive pressure, withdrew the book and cancelled a new edition. The BND was proud of its successful efforts to „neutralise“ the upright Berlin student, as the secret service jargon goes, and to curtail his fundamental right to freedom of expression, the basic right of democracy. Decades later, Reinhard Strecker was honoured with the Federal Cross of Merit for his pioneering work on the politics of the past.
Defence against attacks on his power manager Globke was once again Adenauer’s decisive motive for using the BND to exert massive influence on Eichmann’s defence in his 1961 criminal trial in Jerusalem. It was a highly probable defence concept that Eichmann would break with a limitation of the trial to his individual guilt and place his crimes in the context of the main crimes of authoritative and higher-ranking perpetrators, whom he had only followed in obedience to orders. Thus there was a danger that prominent accomplices in the extermination of the Jews, who had been reintegrated into the state and society and had gained influence, would at least be brought in as witnesses to relativise the guilt of the accused and their part in the crimes would come to the attention of the public, turning the individual trial into a larger tribunal on widespread guilt, which had been largely avoided in Germany up to that point. This was particularly true for Globke.
Klaus-Dietmar Henke describes the intelligence „penetration“ of the Eichmann trial and his defence in detail, as far as he was allowed to. Henke impressively documents the passages that the Chancellor’s Office prohibited him from publishing for reasons of the current „welfare of the state“ and „maintaining the functionality of the intelligence services“ by blacking them out in the text. The essentials remain recognisable. It can be assumed that details of the BND’s contacts with Israel were intended to fall under the protection of secrecy, which had no interest in discrediting the Adenauer government, from which it expected – a little later successfully – arms deliveries.
Despite the redactions, the BND’s action in favour of Globke, which was carried out with a wide range of secret service resources to closely accompany the trial, in particular to investigate and influence Eichmann’s defence lawyer Robert Servatius, is clearly visible. According to Henke, there was a „stream of BND reports originating directly from Eichmann and Servatius, which provided the Chancellery with a fresh insight into the trial calculations of Adolf Eichmann and the strategy of his legal counsel“. (Henke, Geheime Dienste , p. 1416). The BND had already learnt before the proceedings began that Eichmann would not have any personal contact with Globke during the trial. However, in the trial itself, and even more so in the appeal proceedings after the death sentence, Eichmann insisted on naming Globke as a witness and prime example of greater responsibility and guilt at the higher levels of the Nazi state, while he himself – obediently following his oath of allegiance and service – was a victim of the responsible political leadership. He had already done this in the hearing of evidence at first instance, when he brought up Globke’s involvement in the 11th implementing ordinance to the Reich Citizenship Law, which was decisive for the deportation and murder of the Jews, since in the Ministry of the Interior, according to Eichmann, „the origin of these measures against the Jews lay for the most part … with Ministerial Director Hering and Ministerial Councillor Globke“. Eichmann’s comparative view of Globke’s role was reinforced by the documents and examples in Reinhard Strecker’s book, which he had read in prison. He had written a 40-page statement on this, which the BND was able to obtain. „Here, Secretary of State of a government; there, condemned to death!“ was Eichmann’s conclusion. He himself in the deportation office had only had to read Globke’s comments to know whether the person to be deported belonged to the group of people identified by the Ministry of the Interior or not.
In the context of the trial, this and other texts by Eichmann were of great interest to magazines and illustrated journals with a large circulation, both internationally and in Germany. Eichmann’s memoir-like original statements on the Nazi era (tape recordings and manuscripts) had already been written in Argentina and had a high market value from Life to Stern and Spiegel, presumably with a high potential to jeopardise Globke’s reputation and indirectly that of his chancellor. In a detailed letter to his brother Robert from prison, Eichmann expressed sympathy and agreement with communism with the trenchant thesis „From the East comes the light“. Gehlen immediately suggested to Globke that this confession, which the BND had learned about from defence lawyers and for which he had paid DM 5,000, should be publicly exploited during the trial as an international and high-profile sensation. With the exception of a report in the Munich Abendzeitung newspaper a week before the judgement was handed down, this failed. The BND was more successful in preventing Globke from publishing the Eichmann commentary on Strecker’s Globke book. The Revue , which had planned to publish it shortly after the verdict was announced, refrained from doing so after the BND interfered with the editor-in-chief.
The BND endeavoured to prevent the motion for evidence „Witness Dr Globke“ in the appeal proceedings, which came too late in the proceedings. However, his informant in Jerusalem, Rolf Vogel, had no problem opening the doors to the Israeli chief prosecutor Gideon Hauser, who reported that he only saw this as an attempt to cause difficulties for his own government. The request for evidence was rejected. V-Mann Vogel had another success. As a trial observer in Jerusalem, the East Berlin lawyer Friedrich Karl Kaul endeavoured to bring the GDR’s view of the trial and other Nazi criminals into international reporting. Vogel succeeded in breaking into Kaul’s hotel room and stealing his incriminating documents.
Continued domestic espionage against rival parties by the foreign secret service, defence against the past and care for highly incriminated Nazi elites both internally and externally, mobilisation of the state power entrusted to him in favour of the perpetrators of Nazi crimes and against investigators and critics and their „neutralisation“ through secret service repression: this profile of the first Chancellor of the Federal Republic has become even sharper after Klaus-Dietmar Henke’s book.
According to legal standards – and what would speak against judging the most powerful holder of governmental power according to the Basic Law? – the judgement is appalling. Even according to simple law, domestic espionage and aid for Nazi criminals violated the basis of competence of the foreign intelligence service, which, in contrast to the Office for the Protection of the Constitution, was not supposed to be active domestically. Until 1990, there was no legal basis for this, but the government was bound by it. It was not for nothing that the head of the Federal Chancellery had informed the departments in a circular in 1954: „The Federal Intelligence Service will not be active in the domestic political sphere“. Gehlen confirmed this rule in a brazen lie to a sceptical Fritz Erler. For those involved in the breach of law, the civil servant’s duty to obey this instruction, but also the core duty of the civil service (and the entire public service), according to which a civil servant must serve the entire nation, not a party, had no meaning.
The systematic disregard of simple law was at the same time a breach of fundamental constitutional law: not a negligent transgression in the rush of day-to-day business, not a forgivable error of interpretation in a complex constitutional situation, not a taking of welcome violations of the law by a civil service that had forgotten its duty, but a deliberate, top-down organised, evident breach of the constitution at its most elementary. Adenauer and Globke were fully qualified lawyers. As President of the Parliamentary Council for the drafting of the Basic Law, Adenauer will have been aware of its foundations. Occasional hints of Adenauer’s prideful sense of guilt have survived when he boasted in a confidential circle of CDU leaders about his secret information about the SPD, whose executive meetings „can only be learnt about with the greatest difficulty by all sorts of crooked routes … I don’t take the crooked routes. I hear what comes out of the crooked paths.“
Klaus-Dietmar Henke sums this up in a historicising view: „We know that constitutional norms and constitutional reality never coincide and that it took a long time in the Federal Republic of Germany before the Basic Law of 1949 was able to establish itself as the guiding norm. We also know that its founding chancellor, as he said in a remark that enriches the treasure trove of quotations , was ’not fussy‘ in matters of power. Hans-Peter Schwarz conceded to his hero Konrad Adenauer that although he adhered to the basic rules of the constitution, ‚he stretched them and often operated on the edge of what was permissible‘. The use of the BND against the SPD and FDP, however, went far beyond this. What Adenauer and Globke did by encouraging and receiving Gehlen’s services was much more than ‚considerable institutional nonchalance‘. Because they, like the BND president, thought in terms of the state rather than the rule of law, and because all three had no doubt that the political end sometimes justifies the means, they broke out of the constitutional framework and trampled on the simplest rules of political competition in a democracy, a constitutional democracy that had yet to find itself. … Had the BND’s spying on the SPD leadership, which had remained hidden for decades, been uncovered at the time, contemporaries would certainly have recognised an abyss of abuse of power.“ (Henke, Geheime Dienste , p. 1414)
It was certainly an abyss of abuse of power and far more than an operation on the edge of what was permissible. The heavy shadows in the memory of Adenauer can no longer be whitewashed and minimised with regard to the constitution and the law: The abyss of abuse of power was at the same time an abyss of constitutional betrayal.
To the extent that Adenauer worked with the latter in defence of his State Secretary, he was participating in maintaining impunity for accomplices and accessories to the National Socialist extermination of human beings and playing down their crimes out of a personal calculation of power, just as a right-blind criminal justice system did at the time. In 1963, Globke was sentenced in absentia in a show trial in the GDR to life imprisonment for his contributions to the racist mass extermination. From a Western perspective, the trial and judgement were generally regarded as misguided at the time, but the guilty verdict was correct. Many decades too late – most of the perpetrators are dead or very old – today our criminal courts have finally recognised that the actors in the machinery of mass extermination were at least accomplices to the mass murder, not only those in the immediate vicinity of the extermination, but also simple guards, accountants and administrative staff of the concentration camps. This is all the more true for a government official like Globke, who drafted, commented on, disseminated and transferred the selection law to conquered territories. The image of smaller and larger cogs, without which the extermination apparatus would not have worked, comes to mind. In this machinery, the deportation manager Eichmann was able to read up on whom he should transport for extermination from Globke. For the founding chancellor of the Federal Republic, these connections of guilt with his state secretary were only significant to the extent that they could jeopardise his own reputation and power; they were therefore to be fended off by all means, including breaking the law.
The unlawful and unconstitutional co-operation of the BND to consolidate Adenauer’s personal and party-political power worked so efficiently because it was based on a common set of interests and a shared understanding of the state and society. Henke describes the BND as „ a men’s alliance fighting community“, a “ network of personal loyalties held together by the comradeship of former general staff officers, members of the Abwehr and veterans of the National Socialist persecution apparatus“. „If the comrades-in-arms united in a new mission had internalised one thing in six years of war, it was certainly the principle of action that was self-evident in National Socialism anyway: the end justifies the means. While this pre-legal maxim was otherwise not so easy to carry over into the official structures of the post-war years, it long served as a self-evident guideline for political domestic espionage.“
The BND stood for the continuity of political thinking from the state and from power. „ Orientation towards the Basic Law, adherence to the law and a pluralistic understanding of society would have been virtually incompatible with this domestic political thrust of the early BND. For if Gehlen’s men had detached themselves from their wartime and pre-war experiences, they would not have been able to mould the foreign intelligence service into an instrument of domestic and party politics – but neither would they have been able to do so without the approval and encouragement of Chancellor Adenauer and State Secretary Globke“. (Henke, Geheime Dienste , p. 1391) The right-wing conservative understanding of state and society of this „männerbündlerische Kampfgemeinschaft“ was very compatible with the Chancellor’s traditional Catholic thinking on state and society. Both schools of thought favoured an authoritarian, top-down society with a strong leadership and an obedient following. This is why Catholicism’s willingness to adapt to the dictatorial form of government of National Socialism, and even to its war, worked: from the approval of the Enabling Act at the beginning to helping Nazi criminals escape to South America at the end. A democratic and pluralistic society based on individual fundamental rights could only develop slowly against this way of thinking.
A militant anti-communism with a rigid image of the enemy, which could not and would not understand the differentiations and changes in communism in its own country and elsewhere in Europe, was ideologically unifying for the right-wing conservative fighting community and, during the Cold War, extremely compatible with the interests of the USA, under whose curatorship the Gehlen organisation grew up. This was because Adenauer and the BND aimed „less at the real or imagined ‚communist danger‘ than at investigating the democratic opposition parties, associations, organisations and milieus, in short: at the covert ‚reconnaissance‘ of blameless citizens who may have been some things, but not enemies of the constitution“. Adenauer and the BND were concerned with the joint fight against the „left“ and this extended „ in the tradition of the authoritarian state far into liberalism, Christianity and democratic socialism“ and was directed „against a broad spectrum of uncomfortable, unconventional and oppositional people. They were labelled as having a communist way of thinking and were easy to discredit and slander in the climate of the Cold War: personalities who rejected the Chancellor’s political course; people who challenged the existing conditions within the scope of their rights; citizens who did not hold back in their criticism of culture and society or cultivated an unorthodox lifestyle that challenged bourgeois respectability; initially also men and women who had placed themselves outside the National Socialist community or resisted the Nazi regime“. (Henke, Geheime Dienste , p. 1394).
The fighting community of right-wing conservative, state-authoritarian secret service agents and their kindred spirits in the CDU/CSU, which Adenauer had consolidated, outlasted the time of the first chancellor for decades – on the basis of continued law-breaking. For example, it was immediately directed against the Eastern and détente policies of the social-liberal coalition after 1969, which were jointly opposed by BND executives – civil servants against their government – and the Christian parties. „The very close BND contacts with more than a dozen leading politicians of the CDU/CSU parties was the other side of the coin, which was characterised by the unlawful spying on the long-standing opposition party SPD and the uncomfortable FDP. All CDU and CSU politicians supplied with secret documents in contravention of all secrecy regulations were just as happy to put up with these obvious breaches of official duty as Adenauer and Globke before them. (Henke, Geheime Dienste, p.1421) When Chancellery Minister Friedrich Bohl (CDU) finally suspended BND Vice-President Paul Münstermann, a key player in such activities, in 1995 (!), it was the conservative CDU minister who reproached the senior civil servant for the core duty of the civil service, according to which a civil servant must serve the people as a whole, not a party. The Union politicians, who not without hypocrisy always carried the banner of the free democratic basic order in front of them: in the right-wing battle group, law and constitution really meant nothing to them.
Henke sums it up like this. „ The ‚anti-communism‘ of the BND was the fig leaf of its anti-liberalism … Thus, the anti-liberal anti-communism of the BND in these years was not only congenial to Konrad Adenauer’s strategy, but also functionally corresponded to it.“ (Henke, Geheime Dienste , p. 1 394 f.) Adenauer fought his political rival, the SPD, as an enemy and the „downfall of Germany“, in the tradition of Hitler as a Marxist, i.e. communist, party, however social democrats had always distinguished themselves as anti-communist in their history. For him, spying on them was part of the legitimate fight against communism. This end justified the means, including breaking the law and the constitution.
Anti-communist militancy beyond constitutional limits was also the driving force behind the Adenauer government’s KPD trial, which began in 1951 and only ended in 1956. The court was initially very reluctant to ban the party and was therefore exposed to pressure and influence from the government outside the proceedings, ultimately even to the outrageous threat of calling the other senate to decide by amending the law if the competent senate did not decide soon. The Federal Constitutional Court, which had not yet found its self-confidence vis-à-vis the government in the system of separation of powers, was thus unable to maintain its independence and impartiality vis-à-vis the defendant, the KPD, in the organisation of the proceedings. The historian Josef Foschepoth was able to explain this in his book Verfassungswidrig! Das KPD-Verbot im Kalten Bürgerkrieg (Göttingen 2017), historian Josef Foschepoth was able to analyse new documents from ministries, the Federal Chancellery and the Office for the Protection of the Constitution, which had previously been kept under lock and key, and refer to the court’s case files, sources that make his conclusions verifiable in a document appendix.
The government and the court often worked together to plan the course of the proceedings – to the exclusion of the KPD. The KPD was not, as would have been required by the rule of law, an equal party to the proceedings, but a joint object of the proceedings of the government and the court. Search warrants and concepts for their practical implementation, through which important evidence was to be obtained in the first place, were developed in joint meetings between the government and the court, while the KPD – unlike in a normal criminal trial – had no opportunity to appeal. An important witness was heard by the rapporteur of the Senate alone before the proceedings were opened, without giving the defendant the opportunity to participate in this taking of evidence, as provided for by mandatory procedural law under the rule of law. The Senate dismissed an application for recusal on this basis, which would be a foregone conclusion in any normal proceedings. With the constitutional sensitivity of the first NPD prohibition proceedings in 2003, the course of the KPD prohibition proceedings would be inconceivable: according to this, minimum constitutional requirements apply to the conduct of judicial proceedings, no proceedings may be conducted solely in accordance with the purpose of the proceedings without consideration of conflicting constitutional requirements and the Federal Constitutional Court has a guarantor position in the prohibition proceedings for the observance of the constitutional requirements.
On an ideological level , there were certainly reasons to judge the KPD as unconstitutional, such as its commitment to Marxism-Leninism with its traditional perspective of a dictatorship of the proletariat and its close connection to the SED and its Stalinist dictatorship in the GDR. For this very reason, however, the party had become increasingly insignificant in the political reality of the Federal Republic , without any chance of ever realising such grandiose goals. After the KPD judgement, however, the potential for success of unconstitutional goals was not required for a ban. The second NPD ban judgement in 2017 does not uphold this: in contrast to the KPD judgement, a party that „aims to impair the free democratic basic order“ (Art. 21 II GG) can only be banned if there are concrete indications of weight that make it appear at least possible that the party’s actions could be successful. Accordingly, the application to ban the KPD should have been rejected.
The consequences of the ban for active KPD members were catastrophic. Due to the state protection and organisational offences in the German Criminal Code, and also due to the ruling itself, according to which deliberate violations of this were to be punished with at least 6 months in prison, a conservative estimate of 125,000 preliminary proceedings were initiated, which ended with 7,000 to 10,000 convictions, often with prison sentences without probation up to 5 years in prison; sometimes people were convicted who had already been politically persecuted under National Socialism.
On both sides of the divided Germany, people were imprisoned for their political views. „ Excessive sentences against communists, amnesty for Nazi offenders . That is what deeply offends our sense of justice: That people are treated so differently and not equally before the judge’s bench,“ said the chairman of the Bundestag Committee for the Protection of the Constitution, Walter Menzel (SPD), in the Bundestag. After the KPD was banned, the FDP, which had left the government shortly before in a dispute, and the SPD jointly applied for an amnesty law for communists, which stood no chance against Adenauer and his anti-communist comrades-in-arms in government and parliament. In the period that followed, the KPD ban was increasingly criticised by renowned lawyers. Even Herbert Scholtissek, who played a key role in this, conceded on television when he left the court in 1967 that the application „was not so conclusively justified and would have no chance of success under today’s conditions“. Jutta Limbach later came to the same conclusion as President of the Federal Constitutional Court. Too late for the victims of the judgement, too late for the victims of Adenauer, who willingly granted protection to the right and mercilessly sought to destroy livelihoods to the left, whatever the cost, even the constitution and the law.
When the Watergate affair revealed how systematically President Nixon – far beyond the attempted break-in of his buggers into the Democratic Party headquarters – used his state powers to maintain his own power against political opponents, he had to resign in order to avoid impeachment. The Süddeutsche Zeitung recalled this when it placed its major report on Klaus-Dietmar Henke’s book under the headline „The German Watergate“. The comparison with Watergate leads to the question of a comparable reaction of democratic society in our country to a man of historical significance who had a decisive influence on the history of the Federal Republic of Germany.
Helmut Kohl, also an important chancellor and similarly identity-forming for his party as Adenauer, was no longer in office but was honorary chairman of the CDU when his breach of the constitution was uncovered: the acceptance of large party donations from wealthy patrons without disclosing their names – which the Basic Law obliges him to do; he put his word of honour not to do this above the constitution. His party would not let him get away with this and Kohl renounced the honorary chairmanship to avoid being stripped of it. Friedrich Merz said at the time on Deutschlandfunk radio: „Every one of us makes mistakes, but continued violations of laws, even a continued violation of the Basic Law of the Federal Republic of Germany, has a completely different dimension.“
The basic attitude of placing one’s own political values and goals above the constitution and the law is not only a deformation of power politics, but can also be found in society as a whole. When politicians realise their goals, it is irrelevant to some whether these goals and the ways to achieve them are constitutional. Constitutional breach at the top and constitutional breach at the bottom are often mirror images. Helmut Kohl experienced solidarity in his constitutional breach from the rich, who helped him with DM 8 million to make up for the damage he had caused to his party by breaking the constitution, and who thus endeavoured to limit his prosecution for breach of trust to the detriment of the CDU. The managing partner of the WAZ group , Erich Schumann, for example, justified his contribution of DM 800,000 with „reasons of democratic policy“, to the horror of his editorial staff; not everyone in the SPD thought his subsequent expulsion from the party was right. Thus, with regard to Adenauer, some will support the basic lines of his policy: the orientation towards the West and the rejection of reunification at the price of neutrality, rearmament, joining NATO, the consolidation of capitalism as an economic system, perhaps still his authoritarian thinking from the state. Breaking the constitution is a minor matter for them. Friedrich Merz, who had made clear statements about Kohl, now refuses to comment on Adenauer when asked by journalists. He makes policy from the Adenauer house.
What is our constitution worth to us? The Bochum City Council should ask itself this question. Do we in Bochum want to symbolise with the name Adenauer, by naming a square after him, that we don’t mind if a Federal Chancellor continues to break the constitution and the law for years, putting power above the constitution? Or do we stand up for the free democratic basic order of the Basic Law at all times and under all circumstances?
Throughout his time in office, Konrad Adenauer used the BND and its predecessor, the Gehlen organisation, for domestic intelligence outside of its actual remit – for domestic espionage and to combat political rivals and opponents. This is a key finding of the research work recently presented by Klaus-Dietmar Henke, Chairman of the Independent Historical Commission on the History of the Federal Intelligence Service (Geheime Dienste. The political domestic espionage of the BND in the Adenauer era. Berlin: Christoph Links Verlag, 2022, parts 1 and 2, 1461 p.) The systematic abuse of power by the foreign intelligence service for personal purposes at home was organised in the Chancellery by State Secretary Globke, previously a commentator on the „Nuremberg Race Laws“ under National Socialism, now the administrative manager of the Chancellor’s political power who was irreplaceable for Adenauer, and the former Wehrmacht general Gehlen, who after the war set up a West German foreign intelligence service in the „Organisation Gehlen“ named after him, initially under the care of the CIA, which became the BND in 1956. Henke comes to the conclusion that the BND sought its illegal vocation in domestic espionage during Adenauer’s time, with only scant successes and scandalous failures in the actual profession of foreign intelligence, and found it with constant encouragement and encouragement from the Chancellery.
The main victim of this illegal abuse of power among the parties was the SPD. Almost 500 confidential written reports from the SPD party executive board about BND spies continuously reached Adenauer’s chancellery. Siegfried Ziegler, one of the very few BND employees with an SPD party membership, and above all Siegfried Ortloff were the main players in the SPD spying operation. Ortloff, an emigrant during the Nazi era and confidant of party chairman Ollenhauer, had risen to the position of head of security and personnel as a permanently employed functionary and, as secretary, was responsible for preparing the meetings of the SPD’s top committees, which he attended. He was also responsible for security policy issues and thus had an insight into the Gehlen organisation and the BND, where he came into contact and became friends with Siegfried Ziegler. The BND also had around 20 less important informants from the SPD.
Klaus-Dietmar Henke summarises the importance of the secret knowledge that Adenauer continuously received via State Secretary Globke, who was responsible for the BND, sometimes more than the SPD committee members received their minutes:
„ Siegfried Ortloff, with his reporting from the board and presidium meetings, wrote his very own history of the SPD in the decisive years of its political moulting. A comparison with the authentic party minutes shows that numerous facts, some controversies and many nuances that would otherwise have been lost have come down to us in this way. The direct political significance of the enormous outflow of information to the CDU chairman is palpable and can be read in his sometimes vehement comments and requests for consultation. Nothing was missing: not the financial situation of the opposition party: not the planning of its election campaigns along with a meticulous breakdown of the number of posters, brochures and adverts; not the deliberations on the best mode of attack against the chancellor; not the tracing of the internal lines of conflict; not the vivid explanation of the tensions between the party leadership and the Bundestag parliamentary group; not the appraisal of the international pecking order; not the review of debates in the Bundestag; not the discussions about the SPD’s position on ‚rearmament‘, about its campaigns against the ’nuclear armament‘ of the Bundeswehr; not the shaping of the Godesberg Programme and also not the intelligence monitoring of the turnaround in Germany policy in 1960. Adenauer and Globke were also able to get a fresh picture of the often very frank bulletins on the health and mental state of individual comrades, the dodges, power ambitions and chances of power of their friends and opponents – Brandt, Erler, Heine, Ollenhauer, Schmid, Wehner and other less prominent figures – on an almost daily basis“. ( Henke , Geheime Dienste, p. 1413)
The daily news on leadership issues, such as the process of replacing Ollenhauer and the slow rise of Willy Brandt and the ongoing positioning of Herbert Wehner, who was recognised as the driving party strategist, were certainly particularly important. The foreign intelligence service was tasked with tracking down and compiling defamatory material against SPD politicians. Investigations into the activities of the emigrant Willy Brandt in the Spanish Civil War and in Norway did not yield the desired results, so the Christian politician Adenauer focussed on the emigration itself and Brandt’s illegitimate birth („Brandt alias Frahm“) in all malice. The BND provided a register of prominent Social Democrats with their ideological positions and fulfilled orders for individual investigations of certain „suspicious“ people in the party and trade unions. Reports on the internal party processes of a rapprochement between the SPD and FDP, for example in 1956 in the context of the overthrow of CDU Minister President Karl Arnold in North Rhine-Westphalia: the first time a social-liberal coalition had done so and a threat to the political power of the Chancellor and his party.
Just how consistently Adenauer used the state resources entrusted to him to maintain his own power and that of his party can be seen in the BND’s domestic espionage against his long-standing coalition partner, the FDP. Outstanding informants here were politicians from the first and second ranks, such as the later Federal Minister of Construction Victor-Emanuel Preusker and „Wolfgang Döring, who was downright hated by the Federal Chancellor, highly versatile and soon counted among the party reformers“, who played a decisive role in the change of coalition in North Rhine-Westphalia. One of the BND’s top informants was August Hoppe, a founding member of the FDP in North Rhine-Westphalia and long-time senior NWDR/WDR editor, confidant of the later national conservative party chairman Erich Mende. For Adenauer, the FDP was an insecure coalition partner, not only because of his ongoing dispute with FDP chairman Thomas Dehler, for example over German policy, but also because of the controversies between national and social liberals. Particularly in coalition crises and in the decision-making phases for future coalitions, Adenauer was always well prepared for his own reactions at an early stage thanks to a dense sequence of reports from his foreign secret service on the formation of opinion in the FDP.
„According to Klaus-Dietmar Henke, „The numerous briefings from the Chancellor’s foreign intelligence service related just as much to personnel and other internal matters as to coalition policy dodges or programme decisions in the social-liberal camps of the Free Democrats. The party chairman and Minister of Justice Thomas Dehler, who was booted out early on by Adenauer, had already marvelled at the fact that his great adversary was so ‚brilliantly informed‘ in party matters. The later FDP leader Erich Mende, who often took his party colleague Hoppe into his confidence, went on record at a meeting of the federal executive committee. ‚The Federal Chancellor had repeatedly stated in his presence that he would receive detailed information about all FDP meetings soon afterwards‘.“ (Henke, Geheime Dienste , p. 1407)
So there was suspicion in the FDP; even Rudolf Augstein, whose Spiegel magazine maintained contacts with the BND via leading journalists, some of whom were SS-burdened, suspected secret informants. In the SPD, the government’s level of information on internal party matters was sometimes met with scepticism. Gehlen responded to enquiries in personal dealings with leading Social Democrats with exquisite politeness and the brazen lie that the BND naturally did not engage in domestic espionage because it was forbidden to do so. An internal directive expressly prevents this.
An important factor in maintaining power in the post-totalitarian society of the Federal Republic was the political defence of the past against attacks on the functional elites of National Socialism, who had soon regained a foothold everywhere in state and society. Adenauer’s policy of open doors for collaborators and accomplices in the National Socialist state of human extermination made him vulnerable to attack, outside Germany anyway, and within society among those who, contrary to widespread calls for a line to be drawn, resisted silence and insisted that the perpetrators be investigated and punished. Adolf Arndt, the SPD’s outstanding right-wing politician, had already posed the question in the Bundestag in 1950 : „Does the Federal Government consider people who were prominently involved in the National Socialist tyranny, does it consider people who, at least objectively as nihilistic instruments, have thus linked their names with inhumanity, to be suitable in the sense of the Basic Law to hold high public office today ?“ Adenauer answered this question by making Hans Globke his State Secretary. As a consultant in the Reich Ministry of the Interior, he was jointly responsible for the Nuremberg Race Laws, which provided the legal framework for marginalisation, discrimination and then mass extermination, and wrote the authoritative legal commentary on them. He was also responsible for the introduction of the „J“ in Jewish passports. The law that forced them to add „Sarah“ and „Israel“ to their first names was drafted by him. He was involved in the transfer of anti-Semitic laws and decrees to occupied territories. Adolf Arndt commented on this in the Bundestag in 1950: „ Anyone who, as a lawyer, documents such an act or atrocity as the Nuremberg Laws, apparently in a scientific manner, exposes himself to the accusation that what he has written there can hardly be labelled with anything other than legal prostitution.“ In the Wilhelmstrasse trial against his superior in the Reich Ministry of the Interior, Wilhelm Stuckart, for his involvement in the extermination of the Jews, Globke admitted as a witness that they had all known about the plan to systematically exterminate the Jews, but not „that it applied to all Jews“.
Attacks against Adenauer’s openness towards the perpetrators of the state of human extermination were constantly coming from the GDR and were unceremoniously denounced as communist propaganda, even if the seriousness of their factual substance could not be disputed. But equally committed people from democratic society, political opponents of Adenauer with integrity and a commitment to the past, who believed that a return of Nazi elites to influence and power would be disastrous, came forward with public criticism. Adenauer and Globke, as the main party concerned, had no qualms about using the foreign intelligence service BND, whose main actors pursued a similar interest, to target such critics domestically and make them the object of extensive secret service actions – abuse of power beyond the law and the constitution, not only against competing parties, but at least as bad against individual critical citizens.
Klaus-Dietmar Henke describes in detail such repression by state power – in this case in concerted action by the Chancellery, the Office for the Protection of the Constitution and the BND – using the example of Reinhard Strecker, whose tireless commitment to the politics of the past is also described in the Wikipedia article about him, which is well worth reading. As a student at the Free University of Berlin, he submitted two petitions to the Bundestag in 1958 against the inadequate legal reappraisal of National Socialist medical and judicial crimes and the continued employment of the perpetrators involved. In 1959, he initiated the exhibition „Unpunished Nazi Justice“. In cooperation with a broad spectrum of political youth groups and student associations (SDS, Liberaler Studentenbund, Evangelische Studentengemeinde), he created a travelling exhibition with photocopies from special court files, which was shown in 10 German university cities after its premiere at the seat of the Federal Court of Justice in Karlsruhe, and later also in Leiden, Amsterdam, Utrecht and Oxford. Translations of the material were also presented to members of the British House of Commons. All this – in the midst of the debate on the statute of limitations for Nazi murders – attracted public attention, as did a criminal complaint filed by Strecker on behalf of the SDS Federal Executive Committee against 43 former Nazi judges who had been reinstated on suspicion of obstruction of justice and manslaughter. In 1961, his book Dr Hans Globke. Aktenauszüge, Dokumente , material about his deep involvement in Nazi injustice.
The exhibition „Unpunished Nazi Justice“ was largely based on original files that Strecker and his friends in the GDR were able to view and copy. Many in politics and the media found such contacts unacceptable. However, Attorney General Max Güde publicly confirmed the authenticity of the documents presented and thus the purpose of the exhibition against all criticism, which even the SPD party executive – against its student organisation SDS – had joined. As a matter of course, Strecker’s activities led to him being observed by the Office for the Protection of the Constitution. Globke himself immediately called in the BND, which Adenauer instructed to fend off attacks on his state secretary. „Can we find out more about Strecker?“ was Globke’s intelligence request to the Office for the Protection of the Constitution and the BND. However, apart from „dubious connections with official bodies in the Soviet Occupation Zone, the Czech Republic and Poland as well as with radical left-wing elements in the Federal Republic“, the services were unable to find anything compromising. The BND summarised the personality of the critical citizen to the Chancellery as follows: „Strecker wears a goatee. He presents himself as an existentialist. Strecker’s motives for his work are difficult to recognise. He repeatedly emphasises his ‚urge for absolute truth‘. Strecker is highly self-absorbed, politically immature and obviously strongly impressed and influenced by the ‚documentaries‘ of Eastern propaganda“.
The BND tried to prevent the publication of the documentation on Globke with a large-scale secret service operation. It deployed undercover agents against Strecker, including – by exploiting personal trust – a good friend, through whom it found out the probable content, sources and their origin, mobilised pressure on the publisher to prevent the publication, ascertained the author’s modest personal and financial circumstances and considered buying the book from him, tried to obtain an advance copy in return for money and was finally able to send Globke a proof copy of the paperback in preparation. After its publication, the Chancellery prepared a „refutation pamphlet“ for public relations purposes. With the support of the BND, Globke took legal action and applied for an injunction against the distribution of the book. The BND found out about Strecker’s feelings of distress and sensitivity to pressure in the face of the legal threat from the informer, who must have been afraid for his family after his daughters had been threatened several times in kindergarten. On the whole, Globke did not have much to counter the facts. However, a few minor factual errors in the book prompted the parties involved to reach a settlement, after which the publisher gave in to the massive pressure, withdrew the book and cancelled a new edition. The BND was proud of its successful efforts to „neutralise“ the upright Berlin student, as the secret service jargon goes, and to curtail his fundamental right to freedom of expression, the basic right of democracy. Decades later, Reinhard Strecker was honoured with the Federal Cross of Merit for his pioneering work on the politics of the past.
Defence against attacks on his power manager Globke was once again Adenauer’s decisive motive for using the BND to exert massive influence on Eichmann’s defence in his criminal trial in Jerusalem in 1961. It was a highly probable defence concept that Eichmann would break with a limitation of the trial to his individual guilt and place his crimes in the context of the main crimes of authoritative and higher-ranking perpetrators, whom he had only followed in obedience to orders. Thus there was a danger that prominent accomplices in the extermination of the Jews, who had been reintegrated into the state and society and had gained influence, would at least be brought in as witnesses to relativise the guilt of the accused and that their part in the crimes would come to the attention of the public, turning the individual trial into a larger tribunal on widespread guilt, which had been largely avoided in Germany until then. This was particularly true for Globke.
Klaus-Dietmar Henke describes the intelligence „penetration“ of the Eichmann trial and his defence in detail, as far as he was allowed to. Henke impressively documents the passages that the Chancellor’s Office prohibited him from publishing for reasons of the current „welfare of the state“ and „maintaining the functionality of the intelligence services“ by blacking them out in the text. The essentials remain recognisable. It can be assumed that details of the BND’s contacts with Israel were intended to fall under the protection of secrecy, which had no interest in discrediting the Adenauer government, from which it expected – a little later successfully – arms deliveries.
Despite the redactions, the BND’s action in favour of Globke, which was carried out with a wide range of secret service resources to closely accompany the trial, in particular to investigate and influence Eichmann’s defence lawyer Robert Servatius, is clearly visible. According to Henke, there was a „stream of BND reports originating directly from Eichmann and Servatius, which provided the Chancellery with a fresh insight into the trial calculations of Adolf Eichmann and the strategy of his legal counsel“. (Henke, Geheime Dienste , p. 1416). The BND had already learnt before the proceedings began that Eichmann would not have any personal contact with Globke during the trial. However, in the trial itself, and even more so in the appeal proceedings after the death sentence, Eichmann insisted on naming Globke as a witness and prime example of greater responsibility and guilt at the higher levels of the Nazi state, while he himself – obediently following his oath of allegiance and service – was a victim of the responsible political leadership. He had already done this in the hearing of evidence at first instance, when he brought up Globke’s involvement in the 11th implementing ordinance to the Reich Citizenship Law, which was decisive for the deportation and murder of the Jews, since in the Ministry of the Interior, according to Eichmann, „the origin of these measures against the Jews lay for the most part … with Ministerial Director Hering and Ministerial Councillor Globke“. Eichmann’s comparative view of Globke’s role was reinforced by the documents and examples in Reinhard Strecker’s book, which he had read in prison. He had written a 40-page statement on this, which the BND was able to obtain. „Here, state secretary of a government; there, condemned to death!“ was Eichmann’s conclusion. He himself in the deportation office had only had to read Globke’s comments to know whether the person to be deported belonged to the group of people identified by the Ministry of the Interior or not.
In the context of the trial, this and other texts by Eichmann were of great interest to magazines and illustrated journals with a large circulation, both internationally and in Germany. Memoir-like original statements by Eichmann on the Nazi era (tape recordings and manuscripts) had already been produced in Argentina and had a high market value from Life to Stern and Spiegel, presumably with a high potential to jeopardise Globke’s reputation and indirectly that of his chancellor. In a detailed letter to his brother Robert from prison, Eichmann expressed his sympathy and agreement with communism with the trenchant thesis „From the East comes the light“. Gehlen immediately suggested to Globke that this confession, which the BND had learned about from defence lawyers and for which he had paid DM 5,000, should be publicly exploited during the trial as an international and high-profile sensation. With the exception of a report in the Munich Abendzeitung newspaper a week before the judgement was handed down, this failed. The BND was more successful in preventing Globke from publishing the Eichmann commentary on Strecker’s Globke book. The Revue , which had planned to publish it shortly after the verdict was announced, refrained from doing so after the BND interfered with the editor-in-chief.
The BND endeavoured to prevent the motion for evidence „Witness Dr Globke“ in the appeal proceedings, which came too late in the proceedings. However, his informant in Jerusalem, Rolf Vogel, had no problem opening the doors to the Israeli chief prosecutor Gideon Hauser, who reported that he only saw this as an attempt to cause difficulties for his own government. The request for evidence was rejected. V-Mann Vogel had another success. As a trial observer in Jerusalem, the East Berlin lawyer Friedrich Karl Kaul endeavoured to bring the GDR’s view of the trial and other Nazi criminals into international reporting. Vogel succeeded in breaking into Kaul’s hotel room and stealing his incriminating documents.
Continued domestic espionage against rival parties by the foreign secret service, defence against the past and care for highly incriminated Nazi elites both internally and externally, mobilisation of the state power entrusted to him in favour of the perpetrators of Nazi crimes and against those who sought enlightenment and critics and their „neutralisation“ through secret service repression: this profile of the first Chancellor of the Federal Republic has become even sharper after Klaus-Dietmar Henke’s book.
According to legal standards – and what would speak against judging the most powerful holder of governmental power according to the Basic Law? – the judgement is appalling. Even according to simple law, domestic espionage and aid for Nazi criminals violated the basis of competence of the foreign intelligence service, which, in contrast to the Office for the Protection of the Constitution, was not supposed to be active domestically. Until 1990, there was no legal basis for this, but the government was bound by it. It was not for nothing that the head of the Federal Chancellery had informed the departments in a circular in 1954: „The Federal Intelligence Service will not be active in the domestic political sphere“. Gehlen confirmed this rule in a brazen lie to a sceptical Fritz Erler. For those involved in the breach of law, the civil servant’s duty to obey this instruction, but also the core duty of the civil service (and the entire public service), according to which a civil servant must serve the entire nation, not a party, had no meaning.
The systematic disregard of simple law was at the same time a breach of fundamental constitutional law: not a negligent transgression in the rush of day-to-day business, not a forgivable error of interpretation in a complex constitutional situation, not a taking of welcome violations of the law by a civil service that had forgotten its duty, but a deliberate, top-down organised, evident breach of the constitution at its most elementary. Adenauer and Globke were fully qualified lawyers. As President of the Parliamentary Council for the drafting of the Basic Law, Adenauer will have been aware of its foundations. Occasional hints of Adenauer’s prideful sense of guilt have survived when he boasted in a confidential circle of CDU leaders of his secret information about the SPD, whose executive meetings „can only be learnt about with the greatest difficulty by all sorts of crooked routes … I don’t take the crooked routes. I hear what comes out of the crooked paths.“
Klaus-Dietmar Henke sums this up in a historicising view: „We know that constitutional norms and constitutional reality never coincide and that it took a long time in the Federal Republic of Germany before the Basic Law of 1949 was able to establish itself as the guiding norm. We also know that its founding chancellor, as he said in a remark that enriches the treasure trove of quotations , was ’not fussy‘ in matters of power. Hans-Peter Schwarz conceded to his hero Konrad Adenauer that although he adhered to the basic rules of the constitution, ‚he stretched them and often operated on the edge of what was permissible‘. The use of the BND against the SPD and FDP, however, went far beyond this. What Adenauer and Globke did by encouraging and receiving Gehlen’s services was much more than ‚considerable institutional nonchalance‘. Because they, like the BND president, thought in terms of the state rather than the rule of law, and because all three had no doubt that the political end sometimes justifies the means, they broke out of the constitutional framework and trampled on the simplest rules of political competition in a democracy, a constitutional democracy that had yet to find itself. … Had the BND’s spying on the SPD leadership, which had remained hidden for decades, been uncovered at the time, contemporaries would certainly have recognised an abyss of abuse of power.“ (Henke, Geheime Dienste , p. 1414)
It was certainly an abyss of abuse of power and far more than an operation on the edge of what was permissible. The heavy shadows in the memory of Adenauer can no longer be whitewashed and minimised with regard to the constitution and the law: The abyss of abuse of power was at the same time an abyss of constitutional betrayal.
To the extent that Adenauer worked with the latter in defence of his State Secretary, he was participating in maintaining impunity for accomplices and accessories to the National Socialist extermination of human beings and playing down their crimes out of a personal calculation of power, just as a right-blind criminal justice system did at the time. In 1963, Globke was sentenced in absentia in a show trial in the GDR to life imprisonment for his contributions to the racist mass extermination. From a Western perspective, the trial and judgement were generally regarded as misguided at the time, but the guilty verdict was correct. Many decades too late – most of the perpetrators are dead or very old – today our criminal courts have finally recognised that the actors in the machinery of mass extermination were at least accomplices to the mass murder, not only those in the immediate vicinity of the extermination, but also simple guards, accountants and administrative staff of the concentration camps. This is all the more true for a government official like Globke, who drafted, commented on, disseminated and transferred the selection law to conquered territories. The image of smaller and larger cogs, without which the extermination apparatus would not have worked, comes to mind. In this machinery, the deportation manager Eichmann was able to read up on whom he should transport for extermination from Globke. For the founding chancellor of the Federal Republic, these connections of guilt with his state secretary were only significant insofar as they could jeopardise his own reputation and power; they were therefore to be fended off by all means, including breaking the law.
The BND’s unlawful and unconstitutional collaboration to consolidate Adenauer’s personal and party-political power functioned so efficiently because it was based on a common set of interests and a shared understanding of the state and society. Henke describes the BND as „ a men’s alliance fighting community“, a “ network of personal loyalties held together by the comradeship of former general staff officers, members of the Abwehr and veterans of the National Socialist persecution apparatus“. „If the comrades-in-arms united in a new mission had internalised one thing in six years of war, it was certainly the principle of action that was self-evident in National Socialism anyway: the end justifies the means. While this pre-legal maxim was otherwise not so easy to carry over into the official structures of the post-war years, it long served as a self-evident guideline for political domestic espionage.“
The BND stood for the continuity of political thinking from the state and from power. „ Orientation towards the Basic Law, adherence to the law and a pluralistic understanding of society would have been virtually incompatible with this domestic political thrust of the early BND. For if Gehlen’s men had detached themselves from their wartime and pre-war experiences, they would not have been able to mould the foreign intelligence service into an instrument of domestic and party politics – but neither would they have been able to do so without the approval and encouragement of Chancellor Adenauer and State Secretary Globke“. (Henke, Geheime Dienste , p. 1391) The right-wing conservative understanding of state and society of this „männerbündlerische Kampfgemeinschaft“ was very compatible with the Chancellor’s traditional Catholic thinking on state and society. Both schools of thought favoured an authoritarian, top-down society with a strong leadership and an obedient following. This is why Catholicism’s willingness to adapt to the dictatorial form of government of National Socialism, and even to its war, worked: from the approval of the Enabling Act at the beginning to helping Nazi criminals escape to South America at the end. A democratic and pluralistic society based on individual fundamental rights could only develop slowly against this way of thinking.
A militant anti-communism with a rigid image of the enemy, which could not and would not understand the differentiations and changes in communism in its own country and elsewhere in Europe, was ideologically unifying for the right-wing conservative fighting community and, during the Cold War, extremely compatible with the interests of the USA, under whose curatorship the Gehlen organisation grew up. This was because Adenauer and the BND aimed „less at the real or imagined ‚communist danger‘ than at investigating the democratic opposition parties, associations, organisations and milieus, in short: at the covert ‚reconnaissance‘ of blameless citizens who may have been some things, but not enemies of the constitution“. Adenauer and the BND were concerned with the joint fight against the „left“ and this extended „ in the tradition of the authoritarian state far into liberalism, Christianity and democratic socialism“ and was directed „against a broad spectrum of uncomfortable, unconventional and oppositional people. They were labelled as having a communist way of thinking and were easy to discredit and slander in the climate of the Cold War: personalities who rejected the Chancellor’s political course; people who challenged the existing conditions within the scope of their rights; citizens who did not hold back in their criticism of culture and society or cultivated an unorthodox lifestyle that challenged bourgeois respectability; initially also men and women who had placed themselves outside the National Socialist community or resisted the Nazi regime“. (Henke, Geheime Dienste , p. 1394).
The fighting community of right-wing conservative, state-authoritarian secret service agents and their like-minded partners in the CDU/CSU, which Adenauer had consolidated, outlasted the time of the first chancellor for decades – on the basis of continued law-breaking. For example, it was immediately directed against the Eastern and détente policies of the social-liberal coalition after 1969, which were jointly opposed by BND executives – civil servants against their government – and the Christian parties. „The very close BND contacts with more than a dozen leading politicians of the CDU/CSU parties was the other side of the coin, which was characterised by the unlawful spying on the long-standing opposition party SPD and the uncomfortable FDP. All CDU and CSU politicians supplied with secret documents in contravention of all secrecy regulations were just as happy to put up with these obvious breaches of official duty as Adenauer and Globke before them. (Henke, Geheime Dienste, p.1421) When Chancellery Minister Friedrich Bohl (CDU) finally suspended BND Vice-President Paul Münstermann, a key player in such activities, in 1995 (!), it was the conservative CDU minister who reproached the senior civil servant for the core duty of the civil service, according to which a civil servant must serve the people as a whole, not a party. The Union politicians, who not without hypocrisy always carried the banner of the free democratic basic order in front of them: in the right-wing battle group, law and constitution really meant nothing to them.
Henke sums it up like this. „ The ‚anti-communism‘ of the BND was the fig leaf of its anti-liberalism … Thus, the anti-liberal anti-communism of the BND in these years was not only congenial to Konrad Adenauer’s strategy, but also functionally corresponded to it.“ (Henke, Geheime Dienste , p. 1 394 f.) Adenauer fought his political rival, the SPD, as an enemy and the „downfall of Germany“, in the tradition of Hitler as a Marxist, i.e. communist, party, however social democrats had always distinguished themselves as anti-communist in their history. For him, spying on them was part of the legitimate fight against communism. This end justified the means, including breaking the law and the constitution.
Anti-communist militancy beyond constitutional limits was also the driving force behind the Adenauer government’s KPD trial, which began in 1951 and only ended in 1956. The court was initially very reluctant to ban the party and was therefore exposed to pressure and influence from the government outside the proceedings, ultimately even to the outrageous threat of calling the other senate to decide by amending the law if the competent senate did not decide soon. The Federal Constitutional Court, which had not yet found its self-confidence vis-à-vis the government in the system of separation of powers, was thus unable to maintain its independence and impartiality vis-à-vis the defendant, the KPD, in the organisation of the proceedings. The historian Josef Foschepoth was able to explain this in his book Verfassungswidrig! Das KPD-Verbot im Kalten Bürgerkrieg (Göttingen 2017), historian Josef Foschepoth was able to analyse new documents from ministries, the Federal Chancellery and the Office for the Protection of the Constitution, which had previously been kept under lock and key, and refer to the court’s case files, sources that make his conclusions verifiable in a document appendix.
The government and the court often worked together to plan the course of the proceedings – to the exclusion of the KPD. The KPD was not, as would have been required by the rule of law, an equal party to the proceedings, but a joint object of the proceedings of the government and the court. Search warrants and concepts for their practical implementation, through which important evidence was to be obtained in the first place, were developed in joint meetings between the government and the court, while the KPD – unlike in a normal criminal trial – had no opportunity to appeal. An important witness was heard by the rapporteur of the Senate alone before the proceedings were opened, without giving the defendant the opportunity to participate in this taking of evidence, as provided for by mandatory procedural law under the rule of law. The Senate dismissed an application for recusal on this basis, which would be a foregone conclusion in any normal proceedings. With the constitutional sensitivity of the first NPD prohibition proceedings in 2003, the course of the KPD prohibition proceedings would be inconceivable: according to this, minimum constitutional requirements apply to the conduct of judicial proceedings, no proceedings may be conducted solely in accordance with the purpose of the proceedings without consideration of conflicting constitutional requirements and the Federal Constitutional Court has a guarantor position in the prohibition proceedings for the observance of the constitutional requirements.
On an ideological level , there were certainly reasons to judge the KPD as unconstitutional, such as its commitment to Marxism-Leninism with its traditional perspective of a dictatorship of the proletariat and its close connection to the SED and its Stalinist dictatorship in the GDR. For this very reason, however, the party had become increasingly insignificant in the political reality of the Federal Republic , without any chance of ever realising such grandiose goals. After the KPD judgement, however, the potential for success of unconstitutional goals was not required for a ban. The second NPD ban judgement in 2017 does not uphold this: in contrast to the KPD judgement, a party that „aims to impair the free democratic basic order“ (Art. 21 II GG) can only be banned if there are concrete indications of weight that make it appear at least possible that the party’s actions could be successful. Accordingly, the application to ban the KPD should have been rejected.
The consequences of the ban for active KPD members were catastrophic. Due to the state protection and organisational offences of the German Criminal Code, and also due to the ruling itself, according to which deliberate violations of the ban were punishable by at least six months in prison, a conservative estimate of 125,000 preliminary proceedings were initiated, which ended in 7,000 to 10,000 convictions, often with prison sentences without parole up to five years in prison; sometimes people were convicted who had already been politically persecuted under National Socialism.
On both sides of the divided Germany, people were imprisoned for their political views. „ Excessive sentences against communists, amnesty for Nazi offenders . That is what deeply offends our sense of justice: That people are treated so differently and not equally before the judge’s bench,“ said the chairman of the Bundestag Committee for the Protection of the Constitution, Walter Menzel (SPD), in the Bundestag. After the KPD was banned, the FDP, which had left the government shortly before in a dispute, and the SPD jointly applied for an amnesty law for communists, which stood no chance against Adenauer and his anti-communist comrades-in-arms in government and parliament. In the period that followed, the KPD ban was increasingly criticised by renowned lawyers. Even Herbert Scholtissek, who played a key role in this, conceded on television when he left the court in 1967 that the application „was not so conclusively justified and would have no chance of success under today’s conditions“. Jutta Limbach later came to the same conclusion as President of the Federal Constitutional Court. Too late for the victims of the judgement, too late for the victims of Adenauer, who willingly granted protection to the right and mercilessly sought to destroy livelihoods to the left, whatever the cost, even the constitution and the law.
When the Watergate affair revealed how systematically President Nixon – far beyond the attempted break-in of his buggers into the Democratic Party headquarters – used his state powers to maintain his own power against political opponents, he had to resign in order to avoid impeachment. The Süddeutsche Zeitung recalled this when it placed its major report on Klaus-Dietmar Henke’s book under the headline „The German Watergate“. The comparison with Watergate leads to the question of a comparable reaction of democratic society in our country to a man of historical significance who had a decisive influence on the history of the Federal Republic of Germany.
Helmut Kohl, also an important chancellor and similarly identity-forming for his party as Adenauer, was no longer in office but was honorary chairman of the CDU when his breach of the constitution was uncovered: the acceptance of large party donations from wealthy patrons without disclosing their names – which the Basic Law obliges him to do; he put his word of honour not to do this above the constitution. His party would not let him get away with this and Kohl renounced the honorary chairmanship to avoid being stripped of it. Friedrich Merz said at the time on Deutschlandfunk radio: „Every one of us makes mistakes, but continued violations of laws, even a continued violation of the Basic Law of the Federal Republic of Germany, has a completely different dimension.“
The basic attitude of placing one’s own political values and goals above the constitution and the law is not only a deformation of power politics, but can also be found in society as a whole. When politicians realise their goals, it is irrelevant to some whether these goals and the ways to achieve them are constitutional. Constitutional breach at the top and constitutional breach at the bottom are often mirror images. Helmut Kohl experienced solidarity in his constitutional breach from the rich, who helped him with DM 8 million to make up for the damage he had caused to his party by breaking the constitution, and who thus endeavoured to limit his prosecution for breach of trust to the detriment of the CDU. The managing partner of the WAZ group , Erich Schumann, for example, justified his contribution of DM 800,000 with „reasons of democratic policy“, to the horror of his editorial staff; not everyone in the SPD thought his subsequent expulsion from the party was right. Thus, with regard to Adenauer, some will support the basic lines of his policy: the orientation towards the West and the rejection of reunification at the price of neutrality, rearmament, joining NATO, the consolidation of capitalism as an economic system, perhaps still his authoritarian thinking from the state. Breaking the constitution is a minor matter for them. Friedrich Merz, who had made clear statements about Kohl, now refuses to comment on Adenauer when asked by journalists. He makes policy from the Adenauer house.
What is our constitution worth to us? The Bochum City Council should ask itself this question. Do we in Bochum want to symbolise with the name Adenauer, by naming a square after him, that we don’t mind if a Federal Chancellor continues to break the constitution and the law for years, putting power above the constitution? Or do we stand up for the free democratic basic order of the Basic Law at all times and under all circumstances?
Dr Ralf Feldmann , retired judge, born in 1949 and grew up in Olpe (Sauerland). From 1968 he studied law in Freiburg, Marburg and Bochum, as well as history and politics. Since 1976 judge in Bochum (district court, later local court), temporarily seconded to the University of Hagen (collaboration and doctorate with Prof Thilo Ramm). Active in local politics (councillor, left-wing parliamentary group, in Bochum 2009-2014) and peace movement. Professionally and politically committed to peace, politics of the past and a secular state.