Column by Martin Sabrow – THE QUARREL OVER THE STASI FILES

THE QUARREL OVER THE STASI FILES
Martin Sabrow
The struggle for access to the Stasi files dates back to the peaceful revolution
in East Germany in the autumn of 1989. In November 1989, the
Ministry of State Security (MfS) was transformed into the Office of National
Security (Amt für Nationale Sicherheit, ANS), with the hidden
purpose of securing secret police structures and documents for the postdictatorial
era. This attempt failed, and the people responded with the
“storming of the Normannenstraße,” Mielke’s stronghold in Berlin, in
order to stop Stasi agents from destroying evidence. The storming was
successful; it represented a victory for the people and for civil rights.
In the end, the “Round Table” decided to destroy the files of Markus
Wolf’s intelligence branch, but the majority of the documents concerning
the internal activities of the MfS could be saved. In May 1990, the East
German People’s Chamber appointed a special committee under the
chairmanship of Joachim Gauck to control the dissolution of the MfS/
ANS. Then in September 1990, the German Unification Treaty obliged the
Bundestag to entrust MfS records to a Special Commissioner of the Federal
Government (later Federal Commissioner) for the files of the former
State Security Service, the so-called Gauck Agency, which began operations
with fifty-two employees. In December 1991, according to the same
provision of the Unification Treaty, the Bundestag approved the “Stasi
Records Law,” which granted the access to the records. The law was
passed by a broad coalition of CDU, FDP, and SPD deputies, with abstentions
from the PDS and the Green Party. Its famous Paragraph 32
regulates the unlimited access to “documents without personal information”
and to “copies of documents with personal information rendered
anonymous.” The other personal information that the Gauck Agency was
allowed and obliged to release can be divided into three categories: documents
with written consent of the person concerned, documents with
personal information about employees and beneficiaries of the MfS, and
“information about persons of contemporary history or holders of political
office, as far as they are not directly or indirectly affected persons.”
This curious, obscure definition distinguishes between guilty parties,
who were not supposed to benefit from the law, and three categories of
victims: “persons directly affected,” i.e., those deliberately targeted by the
MfS, “indirectly affected persons,” i.e., those mentioned secondarily in a
Stasi investigation, and finally a group with little claim to secrecy because
of their prominent public role—the people of contemporary history. In
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1996, the law was amended to insure that “the secrecy of mail, correspondence,
and telecommunications [would] be limited due to this act.”
In the ten years that followed, millions of applicants gained access to
the Stasi files through this law. The Gauck (now, Birthler) Agency today
has thousands of employees organizing the access to the Stasi files, which
are located in the central archives of the former MfS in Berlin and in
various regional archives. A special department (“Research and Education”)
pursues scholarly research, organizes conferences, and publishes
monographs; Mielke’s state security apparatus has thus become one of
the best investigated parts of the former dictatorship. The Stasi records,
encompassing more than 500,000 feet of documents, are in principle open
to all interested researchers. The public became used to the flood of
revelations that emerged from the reading of the Stasi files by former
victims and journalists; thousands of the Stasi’s “unofficial employees”
were exposed. The law proved to be one of the rare legacies of the East
German grassroots citizens movement that survived reunification—it
turned out to be a tremendous success.
But at the end of ten years, the very same law was widely criticized.
This unexpected situation arose when, through a series of legal moves,
former chancellor Helmut Kohl forced the Federal Commissioner to seal
all Stasi documents relating to him and his political role. The law underwent
a series of transformations that restricted the access to the Stasi
documents, thereby undermining the basis for public information about
the GDR. Henceforth, scholarship on the MfS and other facets of the
“second German dictatorship” could not reach the standard of former
investigations for lack of source material. How can this unexpected turn
be explained, especially since it occurred at the same time a general
interest in coming to terms with the past—from the Herero massacre to
the Holocaust—stood out as a phenomenon in Germany and elsewhere?
The first explanation is the political background to the quarrel. It
began at the end of 1999, just when the donation scandal of the CDU
rattled the political sphere like an earthquake. For weeks it threatened to
split the conservative party. The coincidence was no accident. In the slow
process of sifting unknown material in the files of the MfS, the Federal
Commissioner had come across protocols of “bug activity” and recordings
of telephone calls emanating from the inner circles of the West German
government in the 1970s and 1980s. This material seemed to contain
some evidence of the attitude of CDU leaders in the party donation case
and therefore drew unusual attention. Once it was made public, it led to
critical questions from journalists and from the Ministry of the Interior
under Otto Schily. These critics were concerned that the effort to come to
terms with the GDR legacy interfered with politics in the Federal Republic.
Gauck retreated a bit and made his position on the law and files more
THE QUARREL OVER THE STASI FILES 47
precise: the agency would no longer make public any original protocols
of the “illegally” bugged conversations but would still make the Stasi
summaries accessible. In April 2000, Kohl applied to inspect his personal
files. In November, he demanded that the agency withhold any material
that concerned him until he had personally reviewed it.
Personal factors also must have played an important role. No one
involved in the matter appeared open to compromise, and all acted with
remarkable stubbornness. For Gauck’s successor Marianne Birthler, the
situation was extremely difficult. As a newcomer, she had to prove she
was capable of replacing the hero Gauck and managing the crisis. The
quarrel enabled Kohl, who had lost political power and now risked tarnishing
his personal reputation, to distract public attention from the central
issues of the donation scandal. For his part, Otto Schily had the
opportunity to return to his roots as a state defense lawyer.
Birthler remained firm. She stated that the agency was obliged to
release requested material according to the law and that she could not
grant individuals the privilege of personally vetting these materials as
this would affect the access rights of historians and the media. As expected,
Kohl appealed to the Administrative Court on November 27 to
prevent any release of documents concerning him. Birthler, in return,
decreed that those concerned would be informed before “their” documents
were made accessible to allow them to object. But this half-hearted
move did not help. In July 2001, Kohl was handed a full victory in court;
his files had to be kept secret. The court ruled that “persons of contemporary
history” are also protected.
Days later, Otto Schily came forward with an unusual measure, the
“high noon ultimatum”: He would take legal action against the Federal
Commissioner if she continued to release documents to the public. When
an appeals court, the Federal Administrative Court, upheld the earlier
ruling that restricted personal information about Kohl and, consequently,
every concerned individual who had not been a Stasi member, Birthler
changed her tactics. She closed all exhibitions, all information and documentation
centers about the Stasi, shut down the agency’s web site, and
denied nearly all applications for historical research. Her actions elicited
a protest from the Simon Wiesenthal Center in Jerusalem, which accused
the authorities of blocking access to Nazi-related documents in the
MfS archive. The scholarly community also reacted with dismay when
Birthler stated in April 2002 that most of the 2,000 current requests for
research had to be postponed or refused in the wake of the Kohl decision.
In an article, Birthler explained that henceforth “historical research using
Stasi documents is possible only within narrow limits.”1 Experts criticized
the drastic and far-reaching restrictions on scholarly work, which
prompted the Bundestag to amend the law. In July 2002, the Bundestag
48 INSTITUTIONS OF PUBLIC MEMORY
approved the amendment with the SPD, Greens, and FDP voting against
the CDU.
In September 2003, the Berlin Administrative Court approved a petition
by the Birthler Agency to make the Kohl documents public, in
principle, without violating his constitutional rights. But even this seemingly
clear ruling was not the last word. Kohl lodged an appeal and, in
June 2004, the Federal Administrative Court reached a final compromise
on Stasi material relating to individuals of contemporary history. The
court ruled that no information concerning the private lives of these
persons could be made public. The court extended this limitation to all
tapes and verbatim protocols of illegal listening in private or official
rooms and—this was new—to all internal Stasi reports, analyses, and
interpretations based on such protocols; all information collected through
spying was restricted. Moreover, the court tightened limits on who could
apply to see the information: only scholars working on the history of the
Stasi could request information, and they had to insure that this information
would neither be published nor communicated to others. Personal
information could no longer be released for educational purposes or to
the media without the written consent of the person concerned.
It is difficult to decide who finally won the quarrel over the Stasi files,
Kohl or Birthler. Both declared victory. The court assigned one third of
the costs to Kohl and two thirds to Birthler. Newspaper editorials and the
German Journalists Union deplored the consequences for historians of
the GDR. Birthler declared that the ruling would undermine many scholarly
projects but would still allow for the release of most of the Kohl
papers. In order to decide the question of victory, we have to dig a little
bit deeper. The dynamics of the quarrel may be explained by the transformation
of an administrative conflict into a highly personal struggle
between Kohl and Birthler, but this obscures the broader cultural implications
of the conflict as an indicator of the state of affairs since reunification.
Taking a closer look, the original statute opened “access to the
records of the Ministry of State Security of the former GDR to the public
and to individuals in order to clarify and illuminate the practices of State
Security,”2 in other words, to delegitimize the SED dictatorship and to
educate the population. Here, the basic tension between a presumed
public interest and the sphere of individual rights, a conflict between the
demands of historical appraisal and the protection of personal data as
required by law, is already apparent. The customary declassification
waiting period of thirty years was not implemented for East German
archives, with the interesting exception of the documents of the GDR
Ministry of Foreign Affairs. The Stasi files were not considered part of the
“ordinary” political heritage which should belong to the public after the
THE QUARREL OVER THE STASI FILES 49
end of the ordinary time limit. Therefore, the use guidelines always followed
political rather than legal or archival considerations.
General restrictions had always existed regarding access to the documents
of supranational organizations, foreign countries, and files relating
to intelligence gathering, counter-intelligence, and terrorism. Additionally,
the original law for the Stasi files included the rights of affected
persons to demand the redaction of information that concerned them. For
the same reason, users were never granted access to any index or file card.
All along, it was only the Gauck/Birthler Agency that could retrieve,
classify, and present material—often in a revised version with names and
sequences blacked out due to the privacy exemption. The employees of
the Gauck/Birthler Agency enjoy unrestricted access. Although they are
pledged to secrecy and subject to the directives of the authorities, they
can nevertheless use their privileged knowledge of names and code
names for more precise research, even in non-classified documents. They
have a lead on sources and interpretations which cannot be entirely controlled
by the scholarly community.
All of these unique customs and guidelines point to the same basic
problem. In the case of Stasi files, two different cultural norms and value
systems meet. On the one hand, the broadly acknowledged principle of
historicization—a social consensus that “the truth will heal”—urges us to
uncover the Stasi files without distinction to help shed light on the past:
“Quod est in actis, est in mundo!” By contrast, our democratic and legal
culture recognizes the individual’s right to control the use of personal
data. In that respect, it is of decisive importance how any information to
be released was obtained. It goes without saying that the Stasi’s operations
would have been considered illegal in the West. Scarcely any Stasi
report could ever be admitted in a Western court of law because it does
not conform to the legal order of a constitutional state. Here, historicization
cannot be reconciled with the rule of law. To release documents
would, in a sense, prolong the dictatorship and revictimize those injured
by Stasi espionage, but to withhold the documents might be seen as
minimizing or protecting the dictatorship.3 That is why the former
agency chief Joachim Gauck angrily commented on the first ruling in the
Kohl case that the court had disregarded the rights of a formerly oppressed
people.4 Even after the final court decision, these issues persist; it
is still possible that an endless series of questionable compromises will
cause the Administrative Court to revisit them on a regular basis.
The Stasi documents law and the establishment of the Gauck Agency
bore a Janus face. The totalitarian heritage of a state based upon surveillance
was incorporated into the political culture of a liberal constitutional
state that functions according to the rule of law. The Stasi documents law
created an exceptional situation in the service of a moral purge and the
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education of the public. The millions of requests for access are proof that
the strategy succeeded and met with the approval of the vast majority of
East and West Germans after 1990.
Why, then, did this conflict emerge so late? Marianne Birthler was
quite right when she reminded the court that her “practice of releasing
documents was never objected to by the Bundestag, which receives the
annual report of the agency, nor by the federal government, which is
legally in charge of the agency.”5 During the transition period from
spring to autumn 1990, there was no awareness of the incompatibility of
a moral/psychological purge and the prevailing privacy laws; the Bundestag
nearly unanimously adopted the Stasi files law passed by the GDR
Volkskammer in 1990. As the unification process got underway, the
difference between formal and material justice quickly became visible.
Bärbel Bohley, one of the most famous voices of the civil rights movement
in East Germany, declared, “We hoped for justice, and what we got was
the law.” Some employees of the Gauck Agency tried to use their privileged
knowledge politically, attempting, for instance, to shoot down the
last GDR prime minister Lothar de Maizière by denouncing him as Stasi
informer “IM Cerny.” But such attempts remained exceptions, and it took
years for this conflict to embroil the entire Stasi file complex.
There are at least three reasons for the lag. First, the documents
mostly concerned East Germans, who were not primarily concerned with
the problem of protecting their personal rights but with uncovering their
treatment by the Stasi. Secondly, the groups of readers who were not
personally involved—scholars, journalists, employers—were interested
in open access to the files, whereas those groups with a great interest in
restricting access—Stasi employees and collaborators—had lost their legitimacy
in the public sphere and had little opportunity to articulate their
views. Thirdly, access to the Stasi files was perhaps the only truly revolutionary
act during the collapse of the SED regime. In contrast to the
peaceful demonstrations and demands for legal travel to other countries,
the storming of the Stasi offices and the seizure of the files was an act of
open revolt, justified only by the power of the people as a natural social
force which itself establishes the law. Thus, the files became a revolutionary
symbol, an historical act of civil courage that became a point of pride
for East Germans and a legacy for a new, unified Germany—that is, until
the files went from marking Eastern assimilation to Western values to
challenging Western integrity.
From this point of view, the ongoing debate over the Stasi files is a
late product of the “crisis of unification” which emerged in the mid-
1990s. It reflects an ongoing battle between historicization and individualization
as leading social values. The conflict refutes any naïve belief in
a fast and harmonious reunification of Germany and demonstrates that a
THE QUARREL OVER THE STASI FILES 51
democracy cannot easily absorb the legacy of a dictatorship. In my opinion,
however, when this diagnosis is compared with the scandalous way
postwar Germany treated the National Socialist past in the 1950s—either
with silence or a facile coming to terms—it offers more light than shadow,
even for historians, who suffer most from the new legal status of the
partly sealed Stasi files.
Notes
1 Marianne Birthler, “Stasi-Unterlagen für Forschung und Medien—zum Rechtsstreit um
den Aktenzugang und zur Novellierung des Stasi-Unterlagen-Gesetzes,” Der Archivar 55,
no. 4 (2002): 298.
2 Marianne Birthler, “Der Zugang zu den Unterlagen des Ministeriums für Staatssicherheit
der DDR für Forschung und Medien,” Deutschland Archiv 36 (2003): 376.
3 See Birthler’s arguments in Birthler, “Stasi-Unterlagen für Forschung und Medien,” 299.
4 See Constanze von Bullion, “’Dieses Urteil ist ein Schritt zurück’. Der frühere Behördenchef
Joachim Gauck zeigt sich enttäuscht, die meisten Politiker in Berlin aber sehen ihre
Auffassung bestätigt,” Süddeutsche Zeitung, March 9, 2002.
5 Ibid.
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