Wojciech Roszkowski Post-Communist Lustration in Poland: a Political and Moral Dilemma Congress of the Societas Ethica, Warsaw 22 August 2009 Draft not to be quoted 1. Introduction Quite recently a well-known Polish writer stated that the major dividing line in the Polish society runs across the attitude towards lustration. Some Poles, he said, have been secret security agents or collaborators or, for some reasons, defend this cooperation, others have not and want to make things clear1. Even if this statement is a bit exaggerated, it shows how heated the debates on lustration in Poland are. Secret services in democratic countries are a different story than security services in totalitarian states. Timothy Garton Ash even calls this comparison “absurd”2. A democratic state is, by definition, a common good of its citizens. Some of them are professionals dealing with the protection of state in police, armed forces and special services, all of them being subordinated to civilian, constitutional organs of the state. Other citizens are recruited by these services extremely rarely and not without their consent. In totalitarian states secret services are the backbone of despotic power of the ruling party and serve not the security of a country but the security of the ruling elites. Therefore they should rather be given the name of security services. They tend to bring under their control all aspects of political, social, economic, and cultural life of the subjects of the totalitarian state, becoming, along with uniformed police and armed forces, a pillar of state coercion. Apart from propaganda, which is to make people believe in the ideological goals of the totalitarian state, terror is the main vehicle of power, aiming at discouraging people from any thoughts and deeds contrary to the said goals and even from any activity independent of the party-state. Of course, it is still to be found out what the limits of indoctrination and coercion should be. It is obvious that no state organization is free from certain forms of intervention in private lives of its citizens. Nobody should deny that school instruction or arresting criminals are justified forms of such intervention3. But there is a clear difference between measures that serve the good of free citizens and their security as a whole on then one hand and measures serving the security of the ruling group and its control over the society at the cost of civil liberties and even fundamental human rights on the other hand. 1 “O afirmacji polskości. Rozmowa z Jarosławem Markiem Rymkiewiczem”, [On the Affimation of Polish Identity. Conversation with Jarosław Marek Rymkiewicz], Teologia Polityczna,Vol. 5, Summer 2009-Autumn 2010, p. 15. 2 Timothy Garton Ash, The File. A Personal History, quoted according to the Polish edition: Teczka, (Kraków: Znak, 1997), p. 233. He was astonished to find that the British MI5 kept a file on him as well, but this should come as no surprise since he had had so many contacts in Communist countries that a secret service of a democratic country should have wanted to make sure about his loyalty. Anyway, he was rated as a “person not to be rated among enemies”. Ibidem, p. 230. 3 Cf. e.g. Leszek Kołakowski, Mini wykłady o maxi sprawach, [Mini-Lectures on Maxi-Topics] (Kraków: Znak, 2009), p. 78. 1 Apart from democratic or totalitarian nature of states in which secret services operate there is also a question of state sovereignty. There are a number of sovereign totalitarian states which ultimately could claim that secret operations are meant to strengthen their sovereignty, somehow similarly to democratic sovereign states. The common denominator of offense here would be the service to foreign powers. Therefore, even in democratic states, high officials are carefully verified in this respect. But the Communist system was organized as a network of states subordinated to the Soviet Union (“Socialist community”), so the security apparatus in each satellite country was obliged to render services to the services of the Soviet Big Brother. In other words, it was obvious for the functionaries of the security services that the interest of their own country came second after the interest of the Soviet Union. Notwithstanding, these functionaries were usually working at their own will. “Usually” is a key word here, because sometimes it is difficult to determine the range of their freedom of choice. Various forms of pressure could be applied to make people cooperate with the security apparatus. Moreover, some people decided to cooperate with the Communist security services, without entering a regular payroll of the Ministry of Interior. In Poland these people were called “secret collaborators” (tajny współpracownik, TW), “operational contacts” (kontakt operacyjny, KO) or otherwise. After the collapse of the Communist system in Poland, a heated public debate was opened on how to assess collaboration with the former security apparatus, but the legislation process was long and complicated. The first attempt to start lustration was made by the Jan Olszewski government in May 1992. Rushed by some MPs, his Minister of Interior, Antoni Macierewicz, produced a temporary document which raised hysterical opposition and led to the collapse of the Olszewski government. The anti- lustration coalition, including post-Communists, the Democratic Union (Tadeusz Mazowiecki, Bronisław Geremek, Adam Michnik), Liberals (Donald Tusk), and Peasants (Waldemar Pawlak) formed a new government. After years of post-Communist rule and relinquishment, on 11 April 1997 a moderate law was passed which limited lustration to people aspiring to public offices and subordinated the process to a special Lustration Court. Contrary to the German solution, the Polish law was based on the concept that collaboration with Communist services was not an offense in itself but that it should be disclosed while aspiring to a public office. Those who submitted a false statement would be banned from the office, those who confessed their collaboration would not. The Polish law was perhaps the most liberal among post-Communist countries and raised a lot of objections. A number of cases have shown that the Lustration Court was helpless. Leaks were used for political purposes and the security archives were partly opened for court proceedings. Various arguments were raised either to condemn or to justify collaboration with the Communist secret services. Consolidation of Communist security archives within the Institute of National Rememberance (Instytut Pamięci Narodowej, IPN), created on the ground of the law passed on 18 December 1998, did not solve the problem. When during the lustration procedure the Spokesman of Public Interest turned to the IPN for respective files, he received only the materials that were accepted by the Office of State Protection (Urząd Ochrony Państwa, UOP). It only took the former agents to formally continue cooperation with the UOP to be free from any investigation. Under post-Communist rule, in 2003 an additional agreement was signed between the IPN and the newly created Agency of Internal Security (Agencja Bezpieczeństwa Wewnętrznego, 2 ABW) and Agency of Intelligence (Agencja Wywiadu, AW) on creation of the IPN special collection of files released only with the consent of the three institutions. In practice the access to most sensitive files was limited to a null4. Nevertheless leaks continued and individual cases were considered in the media without an attempt to formulate a more general pattern of moral assessment of the phenomenon. Despite a strong opposition of opponents, there was a growing conviction that it is impossible to found a viable democracy without disclosing security agents in politics, media and other important spheres of social life. In 2006 an attempt was made by the Jarosław Kaczyński government to implement lustration, rising the temperature of the debate. On 16 October 2006 the law was passed by the Lower House. After the President submitted his amendments, the law was passed but soon after it came into force it was sent by a post-Communist politician to the Constitutional Tribunal who found the law unconstitutional in May 20075. Under the new government of Donald Tusk, emerged after the 2007 election, the problem remains unsolved but its importance cannot be denied. 2. Some important cases The Case of Wałęsa. Perhaps the best known case is that of the former “Solidarity” leader, president of Poland and an international icon, Lech Wałęsa. Rumours about his cooperation with Communist services and about his attempts to destroy this documentation circulated for years. In 2008 a book by two historians connected with the IPN, Sławomir Cenkiewcz and Piotr Gontarczyk, concerning Wałęsa’s involvement with the security agents, raised political emotions to a new extreme6. The book, based on a profound archival research, stipulated that the 2000 verdict of the Lustration Court, in which Wałęsa, then presidential candidate, was found not guilty of cooperation with the SB, was, to say the least, lacking grounds. The authors have proved that between 1970 and 1976 Wałęsa contributed to the evidence of the security apparatus but they found no evidence of any further cooperation. Moreover they have shown that during his presidential years 1990-95 Wałęsa did his best to destroy compromising materials7. Wałęsa vigorously denied the accusations but from time to time he confessed this involvement, only minimizing its range and importance. Major commentators and the public opinion were divided