Education of Neo-nazi Leader

• Jurisdiction: United States,Federal
• Citation: Vol. 76
• Publication year: 2021

76 Nebraska L. Rev. 653. Education of Neo-Nazi Leader

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Paul Lansing* John D. Bailey**

The Farmbelt Fuehrer: Consequences of Transnational Communication of Political and Racist Speech

TABLE OF CONTENTS

I. Introduction 653

II. Background 656

A. The Arrest 658

B. The Charges in Germany 660

C. The Extradition 661

D. Applicable Danish Law 663

E. The Trial 663

III. Lauck's Extradition Under International Law 665

A. Article 2 of the European Convention on

Extradition 666

B. Article 3 of the European Convention on

Extradition 667

1. Pure Political Offenses 667

2. Relative Political Offenses 669

C. Specialty 673

D. Political Asylum 675

E. Political Aspects 675

IV. Aftermath 676

V. Final Thoughts 678

I. INTRODUCTION

The concept of freedom of speech in the United States has developed over the course of more than 200 years of jurisprudence, extending back to the adoption of the Bill of Rights in 1791. The first of

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these ten amendments prohibits Congress from "mak[ing any] law . . . abridging the freedom of speech, or of the press."(fn1)

Despite the language of the First Amendment, the United States Supreme Court has allowed some restrictions on speech, as demonstrated by the "clear and present danger" test formulated in Schenck v. United States.(fn2) Yet, the notion of what represents a clear and present danger has evolved over the past seventy-seven years, and the kinds of restrictions permitted in Schenck under the Espionage Act of 1917 would not be allowed today under the prevailing, more liberal interpretation of the First Amendment. Dennis v. United States,(fn3)which applied the clear and present danger test, explained that "the basis of the First Amendment is the hypothesis that speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies."(fn4) Freedom of speech is not seen as a danger, but rather as a forum from which a superior notion of the proper relationship between government and citizen will emerge.

The tradition supporting freedom of speech is unique to the United States. Each nation has developed its own definition of "free speech." In contrast to the American concept of freedom of speech, the German concept of freedom of speech developed from an entirely different historical context. The modern German state arose from the ashes of twelve years of totalitarian rule, marked by the greatest crimes against humanity in the course of history. The new German republic was determined to prevent the reoccurrence of Nazi crimes. The German Federal Constitution, the Grundgesetz, allows the free establishment of political parties;(fn5) however, it also permits the German Federal Constitutional Court, the Entscheidungen des Bundesverfas-sungsgerichts, to declare certain political parties unconstitutional.(fn6)

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The German Constitution also prohibits organizations that are directed against the constitutional order.(fn7) The German government has criminalized both the dissemination of propaganda by an organization that has been declared unconstitutional and membership in such an organization.(fn8)

The right to free political speech presents the German government with something of a dilemma: on one hand, denying freedom of speech to all political groups is a hallmark of totalitarian governments; on the other, Germany certainly would face domestic and international outrage if it allowed Nazi-like groups to flourish on its territory. In striking this balance, the German state has subordinated the right to complete freedom of speech to the desire to prevent the reestablishment of a totalitarian state in Germany.(fn9)

The ban on parties or organizations that advocate a nondemocratic government extends beyond membership and propaganda to include the use of their symbols, flags, uniforms, and forms of address.(fn10) Such a ban is illustrative of the "zero-tolerance" approach of the German government with respect to undemocratic parties. Laws that limit unconstitutional parties and organizations effectively form a net that is intended to prevent the possibility of the resurrection of Nazism and the illegal state, or "Unrechtsstaat."(fn11) Another part of the net includes prohibitions in the German Penal Code, the Strafgesetzbuch, on crimes against public order. The German Penal Code devotes an entire title to crimes that endanger the democratic legal state, including membership in an unconstitutional organization, dissemination of propaganda of an unconstitutional organization, and use of the symbols of an unconstitutional organization.(fn12) Taken together, German legislation criminalizes nearly every public or private expression of the trappings or ideology of the Nazi party.

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II. BACKGROUND

Gary Rex Lauck was born to American citizens of German descent in Milwaukee, Wisconsin in 1953. He became interested in Nazism as a youngster, reading Adolf Hitler's Mein Kampf at age thirteen.(fn13)This interest became an obsession, and in 1972, he founded the National Socialist German Workers' Party-Foreign Organization (NSDAP-AO)(fn14) in Lincoln, Nebraska.(fn15)

In 1974, the German Constitutional Court banned the NSDAP-AO as an unconstitutional organization in Germany.(fn16) Two years later, Lauck was arrested in Germany for distributing Nazi propaganda and was deported after spending four months in investigatory custody.(fn17)This detention period failed to deter Lauck from pursuing his dream of establishing a national socialist state in Germany. Lauck actively promoted Nazi ideology worldwide through speeches and literature. The NSDAP-AO was financed through the sale of Nazi literature and memorabilia, such as uniforms and tapes of Hitler's speeches. In addition, the NSDAP-AO received donations from Nazi sympathizers in South America and South Africa.(fn18) By the time of his arrest in 1995, Lauck had become extremely influential among Nazi sympathizers. According to the German Office for the Protection of the Constitution, the Bundesamt f?r Verfassungsschutz (BfV), Lauck was the biggest supplier of neo-Nazi material to Germany. In 1995, the Simon Wiesenthal Center named Lauck one of the most dangerous neo-Nazis in the world.(fn19)

Lauck's importance to the cause of Nazism was not confined to Germany. According to one former leader of the German neo-Nazi movement, "[t]o say that the international neo-Nazi scene would col

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lapse without Lauck was an understatement."(fn20) Approximately 20,000 copies of Lauck's publications appeared every two months, and roughly 2000 to 3000 copies of the German language NS-Kampfruf(fn21)were shipped to Germany.(fn22) Besides German, NS-Kampfruf was translated into English, French, Dutch, Italian, Spanish, Portuguese, Hungarian, Finnish, Swedish, and Norwegian and was shipped to more than thirty countries worldwide.(fn23)

In addition to racist and anti-Semitic literature, NS-Kampfruf offered for sale to readers such items as portraits of Adolf Hitler, copies of Mein Kampf, and swastika stickers with expressions like "We're back" and "Be right back." As will be discussed, all of these materials are prohibited under various provisions of the German Penal Code.(fn24)Their production and dissemination within the United States, however, is protected by the United States Constitution.

The NSDAP-AO acted as more than a supplier of literature and paraphernalia. In addition to selling these propaganda materials, Lauck's organization helped forge ties between the German neo-Nazi movement and American hate groups, such as the Klu Klux Klan.(fn25)The NSDAP-AO also acted as an information and intelligence exchange for neo-Nazi groups within Germany. Lauck kept close track of right-wing extremist groups in Germany and facilitated communication between them.

Although Lauck distributed pro-Nazi material in many countries, he focused his efforts on Germany. For him, Germany was the "holy soil" from which national socialism had arisen.(fn26) Lauck's goal was to replace what he called the "treasonous Jew-filled Bonn government"(fn27)with a national socialist state. NS-Kampfruf called for the establishment of an underground cadre modeled on the Red Army Faction (RAF).(fn28) Lauck wanted to build a network throughout Germany of

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cells of three to five members, which would be very difficult for the police to infiltrate.(fn29) The cells were to execute individuals who needed to be eliminated to establish a national socialist state in Germany. Once this regime was in place, Lauck planned to return to Germany to lead it. He could then fulfill his dream of having schoolchildren taught his name.(fn30) It was with these insane fantasies that Gary Lauck wished to transform the course of German history through his propaganda.

As a result of Lauck's activities and fantasies, German officials had been trying to prosecute Lauck since his release from investigatory custody in 1976. German officials had been unsuccessful, however, primarily because Lauck's activities were carried out in the United States and were protected there by the First Amendment.(fn31) Despite numerous requests from German officials, the Federal Bureau of Investigation had refused to search for neo-Nazi literature in Lauck's home in Lincoln, Nebraska.(fn32) But, when Lauck traveled to Denmark to visit Danish neo-Nazis in 1995, he was arrested and extradited to Germany. Thus, German officials had their chance to stop or greatly reduce the flow of Nazi propaganda, at least in paper form, into their country.

A. The Arrest

On March 23, 1995, German police raided eighty apartments in fifteen of the sixteen German states as part of an operation code-named Atlantik II, which directly targeted the NSDAP-AO. For more than fourteen years, the...