The Anti-Radical Decree at 50

What is often referred to as the Radikalenerlass, or “Anti-Radical Decree”, was not really a decree but rather a resolution issued in Bonn by West German chancellor Willy Brandt and the heads of the country’s state governments on 28 January 1972. In a meeting the day before, the state-level ministers of the interior had suggested that the public should be reminded of the letter of the law governing the Federal Republic of Germany’s federal and state civil service, according to which “only those may be appointed to the civil service who can guarantee that they always champion the liberal democratic order as outlined in the Constitution.”

Brandt and the other heads of government then did just this. Additionally, they proclaimed that no “applicant devising anti-constitutional activities” could be hired into the civil service, and that membership in an organization “that pursues anti-constitutional goals” would also be cause for rejection. It wasn’t specified which activities and organizations qualified as “anti-constitutional”, nor was a process laid out for identifying the “right- and left-radical individuals” whose employment was targeted.

Nevertheless, it soon became clear that these matters would ultimately lie in the hands of the Federal Office for the Protection of the Constitution, West Germany’s federal intelligence agency.

Intentional Intimidation

One of the most important consequences of the resolution was that state-level Offices for the Protection of the Constitution subjected all civil service applicants to a Regelanfrage, or routine inquiry — a background check using intelligence agency’s databases. Previously, this measure had only applied in sectors considered a security risk, such as those where individuals came into contact with classified documents. Now, however, the Conference of Interior Ministers stipulated without public debate that all applications had to be examined to determine if there were “actionable findings” about an applicant. Effectively, the routine inquiry declared the entire public sector a security risk.

Not only was this unique by international comparison, it was also unprecedented in the history of the Federal Republic of Germany. Although the year 1950 saw then-West German chancellor Konrad Adenauer issue a decree barring primarily members of the Communist Party of Germany (KPD) and its front organizations from the civil service, the universal routine inquiry had previously only been practiced in Hamburg. Not coincidentally, the Hanseatic City governed by the Social Democratic Party of Germany (SPD) was one of the driving forces behind the decree, as Alexandra Jaeger has shown.

In total, 3.5 million routine inquiries were made to the Offices for the Protection of the Constitution, and around 35,000 times, the intelligence agency forwarded its “findings” to the hiring authorities. Mainly affected initially were members of the German Communist Party (DKP) — a successor to the KPD, which was banned in 1956 — and its subordinate organizations, which were politically and financially dependent on the Socialist Unity Party of Germany (SED), the ruling party of East Germany. Yet over time, individuals associated with New Left parties and organizations were increasingly targeted by intelligence agents. In total, between 1,000 and 2,000 individuals were legally either prevented from entering the civil service, or — as happened often in the 1980s — dismissed from it.

It is sometimes claimed that 10,000 or 11,000 professional bans were issued. In a sense, this might be regarded as an exaggeration, as no small number of those who initially received notice of rejection did eventually end up making it into the civil service through considerable tenacity and protest.

At the same time, however, as Jan-Henrik Friedrichs has pointed out, the Anti-Radical Decree affected individuals in a range of different ways. For this reason, it is arguably valid to count among the affected those who “only” spent a few months or years classified as “enemies of the constitution” before finally entering the civil service, or those who “only” had to endure one or several of the political “hearings” that even the famous “extremism researcher” and horseshoe theory advocate Eckhart Jesse has described as “somewhat inquisitorial in nature”.

The number of materially and emotionally affected individuals becomes even greater when one accounts for the Anti-Radical Decree’s vast political “collateral damages”, such as the “Incompatibility Resolutions” banning trade unionists from membership in radical left organizations, the multiple suspensions of the left-wing psychology professor Peter Brückner, or the ban on entering Germany issued against the Trotskyist economist Ernest Mandel. There is even some evidence that the resolution may have contributed to intensified repression of dissidents in East Germany. The relationship between professional bans in the East and the West has been explored by Thomas Klein.

In any case, it is important to recognize that the Anti-Radical Decree deliberately sought to intimidate. As the leader of the Hamburg Office for the Protection of the Constitution Hans Josef Horchem (SPD) wrote in a 1971 internal report in preparation of the decree, its “political effectiveness” did not depend on it being a “perfectionistic compilation of all supporters of radical organizations”, but rather “on the signal that a decisive course of action by authoritative political bodies would send to everyone already harbouring mental reservations about following the Communist path after being hired to the civil service”.

By way of comparison, when it was established in 1967 that approximately 1,200 members of the neo-Nazi National Democratic Party (NDP) were working for the German state — approximately the same number of DKP state employees counted five years later — the ministers of the interior remained passive. Even extreme parties enjoyed so-called “party privilege” as long as they weren’t banned, meaning that they and their members were protected from political discrimination.

At no point in its internal planning did the Ministry of the Interior consider the possibility of a right-wing threat in any shape or form — even though the Anti-Radical Decree was supposedly initially aimed at “radical-right individuals”, who in 1971 were still more numerous in the civil service than radical leftists, according to a report by the Office for the Protection of the Constitution. As a consequence, time and again throughout the 1970s and 1980s, reports were published on nationalists who not only worked in the civil service, but held positions of responsibility therein — including in the school and justice systems, and in the police and military. Although there were attempts to dismiss organized right-wingers on grounds of insufficient constitutional loyalty, these generally failed in court.

Protest Against “Professional Bans”

The persistently unequal treatment of left-wingers and right-wingers in the public sector was one of the reasons why the Anti-Radical Decree was increasingly criticized over time, and not only by those who were personally affected and the left wing of Germany’s social liberal coalition government. Even Willy Brandt admitted in 1976 that the policy was a “mistake” and joined those Social Democrats who advocated a “liberalization” of the policy. And indeed, states in which the SPD was a governing partner discontinued the obligatory routine inquiry in 1979.

Another explanation for this change is that surveys conducted in 1978–79 showed that the SPD would lose more votes than they would gain should they continue the practice. Moreover, in addition to Willy Brandt, other important SPD politicians such as Hans Koschnick and Hans Ulrich Klose had come around to the view that the Anti-Radical Decree did more to harm democracy than to protect it.

As a result of the partial discontinuation of the routine inquiry, a rejection could only be triggered if authorities found out that applicants were engaged “anti-constitutional activities” through other means, such as in the training period. The Christian Democratic Union (CDU)-led government of Helmut Kohl that came to power in 1982 and the CDU-governed states adopted this “silent solution” de facto without ever officially distancing themselves from the Anti-Radical Decree. The last state to do away with the routine inquiry was Bavaria, which did so on 31 December 1991.

How can the SPD’s change of heart on the routine inquiry and the CDU’s pro forma adherence to it be explained? There is much to suggest that Communist-dominated protest provided an important impetus for both. For example, in his “mistake” acknowledgement, Brandt explicitly referred to Alfred Grosser’s criticism of the inquisitorial practice of the West German authorities, which was in turn based on information from brochures of the various protest committees that sprang up like mushrooms from 1972 onwards.

Similarly, future French president François Mitterrand was also moved to publicly oppose the Anti-Radical Decree when directly confronted with its consequences at an SPD party congress by a West German Communist named Peter Gingold. It is also highly plausible that the protests — which at both the national and state level involved various personalities from the left wings of the SPD and the libertarian Free Democratic Party such as Wolfgang Roth and Helga Schuchardt — contributed towards the liberal shift in attitudes towards the left that was demonstrated by opinion polling.

The protests may also have been a reason that no more than 2,000 rejections and dismissals became legally binding. It is hard to imagine that these numbers would have remained so low absent the work of numerous local protest groups.

The resolution from 28 January 1972 was never officially invalidated. Yet following the reunification of East and West Germany, it became extremely rare for people to be excluded from the civil service on the basis of “allegiance”. A routine inquiry only exists in sectors considered a security risk — just as is the case in other democracies. Additionally, applicants to certain positions are examined with regards to whether they ever worked for the Stasi, the East German state intelligence agency.

Following the rise of right-wing violence in East and West in the early 1990s, a revival of the resolutions from 1950 and 1972 came under consideration. Since then, political measures against right-wingers have been announced from time to time, but few of these have been upheld by the courts. During the trial of the National Socialist Underground, a neo-Nazi organization that committed a spree of murders of people with immigrant backgrounds in the 2000s, it was even revealed that two police officers in the state of Baden-Württemberg who had been members of the German affiliate of the Ku Klux Klan for two years were not fired by their superior after the internal discovery of their membership in 2004.

This stands in marked contrast to the experience of a Heidelberg middle school teacher by the name of Michael Csaszkóczy. Also in 2004, Csaszkóczy was denied employment in the Baden-Württemberg school system by the state’s minister of culture Annette Schavan (CDU). According to her, Csaszkóczy’s membership in the Antifascist Initiative Heidelberg — an organization categorized as “anti-constitutional” by the Baden-Württemberg Office for the Protection of the Constitution — justified “doubts as to whether he would consistently stand up for the liberal democratic order”. These doubts sufficed for a rejection.

Csaszkóczy’s strong performance in his training period was just as irrelevant to the decision-making process as was the lack of any information about illegal activity in the Office for the Protection of the Constitution’s intelligence, which simply indicated that the initiative organised anti-NPD and pro-asylum demonstrations as well as guided tours about Heidelberg during the Third Reich.

After a lower court upheld the ministry of culture’s decision, a higher one ruled in favour of the middle school teacher on the grounds that hiring authorities had failed to weigh the unconstitutionality of the initiative against Csaszkóczy other conduct as a citizen and teacher. In the 1970s, this same argument was repeatedly made by the lawyers of those affected by the Anti-Radical Decree — mostly in vain. The fact that the Stuttgart ministry of culture then opted to hire Csaszkóczy rather than appeal this decision illustrates the evolution in thinking among authorities and courts since 1972.

On the other hand, the rejection and following three years of legal proceedings against the young teacher, who had to live off of unemployment benefits, show how the regulatory practices established in the “old” West Germany remain powerful tools well into the new millennium. This is also true with regard to the currently decreasing tolerance of right-wing networks within Germany’s domestic and foreign security forces.

The Victim was Democracy

The Anti-Radical Decree targeted Communists. Its main victim, however, was German democracy. This was bound to happen from the start, when the Federal Republic essentially declared its entire civil service a security risk rather than putting its trust in possibilities of disciplinary law — as did other Western countries in the wake of 1968.

A second reason for this outcome is that although it was constantly asserted that the resolution also applied to the organized Right, credible action remained wanting due to a lack of political will and a lack of appreciation for the problem of right-wing infiltration among the authorities.

Third, on top of this, those young leftists who wanted to enter the civil service were particularly aware of just how smoothly the reinstatement high-ranking Nazi functionaries into the civil service had proceeded after 1949 — especially in the institutions of domestic and foreign security. As many studies in recent years have shown, these institutionally integrated right-wingers made the Bonn democracy more nationalist, racist, anti-Semitic, and historically negationist in a variety of ways, without ever being targeted by a resolution: In fact, the Nazi civil servants’ “short march through the institutions” (Jean Améry) was promoted through the civil service laws to which the Anti-Radical Decree referred, in hopes of winning the loyalty of former Nazis.

Fourth, as has become ever more clear in historical retrospect, the young leftists who were rejected or dismissed in the 1970s and 1980s were typically among those West Germans who helped advance the democratization and liberalization of the Federal Republic, or at least did not hinder it. For in their everyday lives, these people did not work towards the establishment of a Communist dictatorship, but rather towards socializing key industries, democratizing colleges and universities, reckoning with Germany’s Nazi past, reducing the costs of local public transit, and so on. This also explains why the vast majority of leftists affected by the decree did ultimately end up in the civil service — and why those who did not are often still bitter about the injustice done to them. Still others have been completely alienated from liberal democracy — radicalized by the Anti-Radical Decree.

Fifth, this meant that the policy was grist to the mill of militant groups such as the Red Army Faction, which was founded in opposition both to “left bootlickers” who had become institutionally established as “pedagogues and teachers”, but also to the SED, which also insisted on “loyalty”.

Sixth, the Resolution partially reversed a liberalization of politics following the construction of the Berlin Wall, preventing the Bonn democracy from recognising Communist parties as legitimate actors as other Western European countries had done: while these may have subjected leftists to security checks and disciplinary proceedings, they did exclude them on grounds unrelated to behaviour.

Whereas the Communist Eric Hobsbawm could compose his standard works on nationalism and imperialism at the University of London and Stanford University from 1971 onwards, West German Communist Party members were prevented from teaching elementary school. In 1972, Ernest Mandel — like Hobsbawm, a survivor of the extermination of the European Jews — was denied an initial professorship offer at the Free University of Berlin, where he had taught as late as the 1960s.

The Anti-Radical Decree therefore represents not only individual experiences of injustice and a spectacular misjudgement of the political situation by domestic authorities. Rather, it also marks the stalling of a process of political liberalization that tended to continue in other European countries following 1968. A measure intended to protect liberal democracy, it actually damaged it by intimidating some and radicalizing others. A society that, unlike Willy Brandt, fails recognize this mistake runs the risk of repeating it.