The prosecution in question is my own; the proposed answer to the why of my October 4, 1997 arrest given with some trepidation as I recognize an inherent difficulty in the attempt. This begins with a temptation to see too much intentionality, too much conscious design in the actions of the Department of Justice/FBI; the guess work that fills in the gaps of our knowledge can lead to a magnification of what took place beyond its real limits. As in most prosecutions a certain degree of opportunity of circumstances lay behind the government’s actions, as did bureaucratic routine, of inertia once the investigation was under way – not to mention justification of money spent, future budgets to be requested. Speculation can never really tell us what went on behind closed doors.

On the other hand certain decisions were made, resources were expended, and these not just by happenstance. When my name – and those of my then-wife Theresa Squillacote and friend Jim Clark – were discovered in the intelligence files of the former East Germany (German Democratic Republic/GDR), a decision was made to launch a full-scale undercover investigation, even though the country we were allegedly spying for no longer existed. Although initial government inquiries discovered no criminal activity, a further decision was made to launch intensive surveillance of us under the authority of the Foreign Intelligence Surveillance Act (FISA). Although 18 months of that surveillance did not uncover any criminal action either, investigators/prosecutors did not rest, they made the decision to provide the information obtained by wiretaps to FBI psychologists to develop behavioral profiles of my co-defendants for purposes of entrapment. This, at last, provided the basis for our arrest and conviction.

A Justice Department success story, no doubt – but to what end? The discovery of our names in those files could have been handled in any number of ways short of the level of secrecy and intrusiveness employed – it seems, however, that any choice was made in the more draconian direction. This even though the collapse of the Soviet Union and the U.S. Cold War “triumph” could have argued for a redirection of government investigatory zeal in other directions.

Perhaps it is in the nature of existential threats that they never go away, especially when those threats are more the product of ideological constructs than real dangers. An ideology which has become so ingrained in our society that actions taken under its influence are unexamined and unquestioned by those making decisions, by those carrying them out, by those accepting what is done by authorities. There, at least, is where I begin to look – employing four lenses via which the dominant outlook in our society made itself felt throughout my prosecution – for answers to the riddle why.

1. The German Democratic Republic

By 1997, the non-existent GDR was far from central to U.S. foreign policy; yet the image of it as part of a threatening, expansive “communist world” still seemed to inform the world view of investigators and prosecutors alike. Underlying that is the near-consensus view in the U.S. (liberal, conservative, and even many who fall outside those categories) that the Russian revolution and all that followed in its wake were at best wrong-headed, at worst an unmitigated evil. The GDR is included in this view. A society that was/is perceived as never having had any historical justification for existing, a society with no legitimate legacy that can be defended. This attempt to delegitimize all aspects of the GDR is stronger in mainstream (West) German circles; here it is a subset of Cold War stereotypes about the Soviet Union.

In this context, there appears to be no place for balanced judgment about the GDR (for balance connotes legitimacy). Something similar can be seen with Cuba: Both sides of the debate about the U.S. blockade tend to argue over the better way to change Cuba’s social system – that system itself is considered to be without intrinsic legitimacy, our own being the norm against which everything else is compared.

Given that kind of thinking, any association with the GDR such as I had would almost automatically be seen as suspect – it is a country, a “totalitarian” society marked by the Berlin Wall and ubiquitous internal surveillance, seen as incapable of change. Every failing, every repressive or unjust act is considered emblematic, every positive achievement ignored, considered aberrant, or seen in Machiavellian terms as “window-dressing.” A point of view that has become even more dominant post 1989 than in prior years. Thus anyone investigating us, anyone finding my name in those files, would almost automatically see my relationship to East Germany as morally reprehensible – from which it is but a short step to see criminality – and to see me as either dangerously muddled or naïve, as even more complicit in such “evil” than can be easily proved. The former, my being muddled or naïve, is likely the attitude of my first attorneys and even of some sincere friends.

Given this, defending myself means also defending my understanding of what the GDR was all about, as that determined my actions with respect to it. If the GDR was a legitimate state, making a legitimate effort to construct an alternative to the Nazi past, to the West German state, then my own actions were legitimate. Certainly subject to criticism or disagreement as were my positions/actions on other issues, but not something to put me or my actions out of bounds, into the near-treasonous (or in the more “acceptable” territory of wrong-headed and ineffectual). This is a defense to the underlying assumptions of the prosecution (using that term in reference to all the government’s actions in respect to me) that led it to see criminality wherever it looked; it is even more an answer to those who have no idea what I was doing or why.

For me, the political content of my defense on this issue has two aspects. First, there is a challenge to the triumphalist narrative of the U.S. Cold War victory (of which our prosecution is a footnote). The presumed evil of the Soviet Union and its “satellites” is used retrospectively to justify past U.S. military and covert actions. Too often forgotten today is that demonization of the Soviet Union was necessary to gain approval of repressive civil liberties measures, to justify official secrecy, to finance the CIA, to engage in covert foreign interventions, and to fight wars in Korea, Vietnam, even Granada. Thus the idea remains, if I was helping a state such as the GDR, then I was helping not just an “evil” state, but one which threatened U.S. society, i.e., an “enemy.” That’s not articulated as such, but clearly lies behind the prosecution’s thinking, or any charge under the Espionage Act. For me, the point is that GDR foreign policy, far from being a threat to us, was on most issues more humane than that of the U.S. and West Germany (Chile and South Africa being the most obvious instances). The kind of pass now given to this foreign policy is demonstrated by the mainstream critique that Bush degraded a foreign policy that had been good, benign or justified by history (apart from some regrettable mistakes). I think this contributes to the current situation in which opposition to the Iraq war is based far less on a challenging criticism of U.S. foreign policy (and hence U.S. society), and thus has had less of an impact than opposition to the Vietnam war (even though anti-war sentiment is more widespread today than in the past).

The second aspect – and the one that puts me in a smaller minority – is defense of the GDR as an experiment of a socialist alternative. Defending myself thus also means defending the positive legacy of the GDR and recognizing its unfulfilled promise. That doesn’t mean defending every aspect of what it did and was (any more than I would defend every aspect of its foreign policy – re: its political support of the Soviet Union’s 1968 occupation of Czechoslovakia); but it means that it moves away from the grounds of the uninformed denunciatory rhetoric to a careful look at what real people did within real constraints in a society that was not static. Analogous to this is my view of the unfulfilled promise of the American revolution, Reconstruction, and the New Deal, without seeing those moments in simplistic terms. But there is a difference; my sympathy with the GDR, my wanting to support it and learn from its successes and from its failures, are tied to my support for a socialist alternative. Which gets to the next assumption that lay behind the prosecution’s outlook, the belief that revolutionary convictions are themselves somehow suspect.

2. Revolution/Communism/Living Beyond the Pale

A revealing moment in our 1998 trial was when the prosecutor attempted to show us as hypocrites, denouncing the American system while at one point accepting food stamps, for which we were once eligible and had validly obtained. Framing my politics thus revealed a basic lack of understanding of my politics – which do support social welfare. More significantly, the insinuation that we would “bite the hand that feeds us” reflects the idea that we were, to use an old phrase, “un-American.” The notion that revolutionary politics are themselves suspect was the subtext of what happened in our case from beginning to end. It is, after all, unlikely that, once the FBI’s initial investigation revealed no classified had been passed, the government would have gone to the lengths of the surveillance/entrapment had ideological issues not been present. The government’s mild treatment of the “non-political” people who were alleged to have passed classified material to Jim Clark is a valid comparison, I believe.

Stigmatizing the radical left has long roots in the U.S. – and while certainly not unique to our country there are some peculiar characteristics. Revolutionaries in Germany, France, Britain have faced attacks and repression; in certain instances facing repression greater than we have here; but the accusation “un-German” or “un-French” has not been a part of this, certainly not as “un-American” has been used. And that charge preceded the existence of the Communist Party. The Haymarket revolutionaries, the IWW, the early labor and socialist movements were also denounced in those terms at one time. The ideology of “Americanism” contributed to an anti-Communism that was stronger in the U.S. than anywhere in Western Europe (excepting West Germany) even though in almost all those countries the particular Communist Parties were larger and more influential than in the U.S. A contrast can be drawn with Britain too – pro-Soviet espionage had more impact there than in the U.S., but it never translated into the same kind of hysteria. Hysteria that here subsequently translated into a disproportionate degree of repression directed at the radical New Left.

So it was an outlook that informed how the case against us was developed. This isn’t to say that I was singled out, or that there was a vast conspiracy to get me, or even that the officials making decisions were especially ideologically motivated or were at all interested in the nuances of my ideas or activity. Rather, similar to the view of the GDR, there was a perception of domestic radicalism as itself being intrinsically suspect; so that, as the investigation proceeded, this became another reason for the level of intrusiveness, the investment of resources; why, evidently at every turn decisions were made to go forward. Moreover, even at the end of the case, the resources were considered to have been well spent. Certainly our case has not hurt the careers of any who were involved; to the contrary, we know of several careers that have been boosted since our conviction.

This in light of no proof that there was a real breach of U.S. national security, this in light of the fact that neither the GDR nor the Soviet Union has existed for many years. With an ideological trope of this sort, disproportion is more the norm than the exception; not only when it comes to support for revolution abroad, but also when it comes to domestic radicalism. Beyond the circle of government prosecutors, there is this sense in civil society of a political line that ought not be crossed – not just as a matter of difference in ideas, but because the espousal of such ideas can leave the more “responsible” left open to attack. Certainly the support for the GDR falls into that category and is likely the reason that there has been virtually no mention in the left/progressive press about our case; virtually no public mention by left organizations. Which, to come full circle, shows the effect of giving self-identified left-wing views a pariah status. Many who might otherwise have questioned or raised objections to what took place during our prosecution failed to do so; self-censorship instead took hold as too many felt a need to keep their distance.

Thus, my defense ultimately has to include a defense of a radicalism that puts the current system in question. This, for me, means a defense of the radicalism embodied by the Communist movement and other self-defined Marxists, and of the more radical layers of the New Left – a defense which (just as with the GDR) doesn’t mean being uncritical or not being self-critical, but does mean bringing those politics back to the realm of open discussion – within the liberal/progressive/left world, as well as in society as a whole. So this becomes a way to challenge the pre-conceptions embedded in mainstream ideology and government action; an ideology which deems radicalism irrelevant, marginal, yet does not hesitate to repress it so as to keep it on the margins.

Doing so, for me, also means addressing questions (asked and unasked) about my own political self-identification. This isn’t as simple as it ought to be in large part because I have always rejected the line of demarcation between being a socialist and being a communist. From my point of view, communists are a necessary part of the socialist movement, at the same time I feel that the socialist movement of necessity has to be broader, more encompassing than that part expressed by communists. I feel equally comfortable (or uncomfortable at times) with my feet in both places; or in neither when I feel that events are moving faster than what any organization is representing.

Key in all this is how what I do contributes to challenging the capitalist system at its roots, while at the same time participating and taking part usefully in activity that is far more incremental; for it is that combination which I’m defending. This becomes a deeply personal matter. A question people think to themselves, a question I have posed to myself, how could I have jeopardized the concrete political work I was doing – work that was pragmatically useful – by involving myself in activities that pushed the envelope without necessarily showing a concrete result? The latter is true of my activities with the GDR; even after the mid-1980s, I sought some way to find a place to put in practice my more radical inclinations, albeit in more organic form, and was dissatisfied with myself to the extent I was unable to do so. For my socialist beliefs to be more than just beliefs, political action had to be more than piecemeal reforms now, systemic change later. They had to be integrated in some way – I still hold that reforms that do not keep pushing for further structural change eventually only invite reaction. On a personal level, as contradictory as my relationship to the GDR was, it gave me a deeper understanding of the difficulties/possibilities of building socialism; allowed me a wider, more international view of revolutionary movements; and thus deeply informed my subsequent political activity ad work in the labor movement.

Which brings us back to the assumptions behind the charges: Revolutionary sentiment and activity are not antithetical to participation in civil society, in the political process; do not make one “un-American,” and should not put one beyond the Pale, into a realm where police, FBI, business, or others can treat one automatically as suspect – reminiscent of the Palmer raids, the McCarthy era, Cointelpro, when the targets were as often local activists as national leaders.

3. Civil Liberties

This is where most friends, most people who have heard about the case can agree; that our civil liberties were violated. Nonetheless, the courts and much of the wider public do not see the issues in other terms. Votes by Democrats for the Patriot Act indicate a questionable grasp of the principles involved too, as does the silence (or worse, favorable references to) about FISA from those who should know better.

Behind this is the way people rationalize that those who stray beyond certain boundaries or engage in certain patterns of behavior only have themselves to blame; even if they are met with unjust consequences. Thus someone can think that crack cocaine and drug laws are excessive, yet the fact that offenders acted willfully makes it hard to turn a vague sense of injustice into opposition. It is a kind of blame-the-victim mentality, which has allowed the exponential growth of our prison population to take place with minimal protest. The connection with me is clear; people can hear the case, believe the government’s action was excessive or even believe the results were unjust, yet won’t feel compelled to speak out or take action because, after all, I put myself in this position, I should have known better, I could have avoided all this.

Much as the drug dealer could have avoided the fate of so many now imprisoned. This relates, too, to my previous point, that underlying sense that sympathy and active support for overseas revolution are themselves transgressive, and thus the sense that there are no wider implications for civil liberties in the particulars of our case. I don’t think I’m overstating this – it shows in the weak, muted opposition to FISA before 2001 and in the upholding of FISA as an acceptable alternative to the Patriot Act now. This all implies a trust in government police agencies that history does not justify, it accepts a level of official secrecy that defies logic. It is an acceptance that has grown out of the narrowing of radical political vision since the 1960s-70s. To me, this is how the selective repression of the left in the U.S. has had much more of an impact than is commonly understood.

There are, in addition, other civil liberties implications in all this, beginning with how each new denial of a right makes previous denials seem not so bad (the FISA-Patriot Act link) while the definition of what constitutes national security is made broader and broader without most people feeling personally threatened. This kind of dissociation, the belief that all the criminal justice changes of the last two or three decades don’t affect our society as a whole is in part due to the racial divide in our society; not only in the obvious sense of who is most affected but also in the ways by which people can become the “other.” I think also the relatively greater degree of individual freedom people historically have had in the U.S. than in many other countries has also been accompanied by more personal violence, which has led too often to acceptance of various forms of authoritarianism to defend security (and used by elites to prevent that freedom from being used politically).

All of which brings us back to1997. It was a case where certain civil liberties (privacy being the obvious one) were denied; where the result of the trial was a further erosion of civil liberties (via the expansion of the definition of national security), yet one that has drawn a response from very few in the U.S. other than personal friends and family (sections of the German left have been more supportive) – and a case to which civil liberties groups have not responded or commented upon, precisely because the politics cross certain lines.

A defense in all this then becomes one of connecting the small sphere in which our case exists to those larger and more basic issues. The challenge to FISA, to Fourth Amendment violations should not only be a challenge to government intrusion; it should also be based on the premise that radical ideas and activities should be brought out of the shadows and be openly advocated without fear of the whole gamut of measures the FBI routinely takes (infiltration, entrapment, provocation, etc.). If people cross the line into illegal activity, the normal legal process in society can be the place where such activity is prosecuted, and defended too by those charged – without the presumption not only of guilt but of something deeply menacing which reinforces that guilty presumption. This means that my defense of my civil liberties should be equally a defense of my political past and action – my and others’ positions ought to be subject to open debate rather than considered as an invitation to prosecution.

And that finally means challenging the blame-the-victim mindset that, even if it deplores excessive force or violence, still invokes the responsibility of the victim for bringing it on himself or herself. That is probably the most important and most difficult challenge and is the particular point where the connection between a coercive criminal justice system directed at “ordinary” crime and an atmosphere of political repression are joined.

4. The right to be wrong, the right to have weaknesses

This may seem odd, yet it is tied into all the rest of the above, including how it is brought together by police entrapment programs that are accepted in the same way – those entrapped are doing something wrong so they shouldn’t complain. It’s the whole mindset that rationalizes the war on drugs (including the acceptance of the absurd amount of federal resources devoted to the case against Barry Bonds); and, on the overtly political side, it is the logic that allows people to think that because “illegal” aliens know what they are doing is illegal, they have no right to complain.

Obviously, though, I have in mind a more personal objection to this. Anybody in life has things they did, decisions they made, personal traits they are not proud of; none of which is criminal necessarily; yet somehow in the context of criminal investigation and prosecution these are brought to the fore – taking characteristics and using them against people. Somehow we have returned to 1950s conformism; now internalized within a range of narrow choices of what is considered acceptable. True, some behaviors then proscribed are currently more tolerated, but still only within socially “acceptable” limits – the vulnerabilities people feel when they stray off predetermined limits (sexual, social, idiosyncratic) helps keep people in line. I may be overstating this, but only slightly; the shakes of the head at trial by friends over some revelation or other, even if this had nothing to do with the charges, meant that such revelations undoubtedly played a role in what the jury heard.

The point is not that any behavior in life is okay; it is, however, that most behavior should not be criminalized; behavior should not be used as the basis to entrap, nor as a factor of proof in a trial. In a way, this constitutes its own violation of a right to privacy that goes beyond listening to a wiretap, and ought to be rejected, challenged, as such.

And a defense against this would take that form, a challenge to the mindset that rationalizes entrapment; a challenge to a mindset that builds from a moral superiority of those who judge others to prosecutions that only reveal the asymmetry of power in our legal system. Finally, it means that this too is an aspect of defending opinions and politics that go in unwanted directions – protecting against attacks on the core of accused people, of their very personalities.

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All speculation, true; nonetheless, the key to defending against unjust authority is to pose questions and answers alternative to those prosecutors seek to impose; to redefine and answer for ourselves the why of what happens. Each explanation offered above is directed at a mindset that made it too easy for too many to accept the government’s version of the story of what lay behind that October 4, 1997 arrest – and, by extension, too easy to accept the prosecution, the continued imprisonment of too many others. That acceptance, I believe, ought to be challenged, needs to be challenged, if we are to redirect it away from the policies of war abroad, suppression at home, that have become our “way of life.”

Kurt Stand
April 2008