Anti-Constitutional

The​ Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz, or BfV) owes its existence to the Allies. When the Western powers gave the green light for the creation of the Federal Republic of Germany in their zones of occupation in 1949, they also gave the constituent assembly permission to set up ‘an office to collect and disseminate information on subversive activities against the federal government’. According to Ronen Steinke, the intention was to nip in the bud any attempt at a coup d’état, whether fascist or communist, that would have given the Soviet Union an excuse to invade western Germany. (Instead, the Soviets founded their own German state, the German Democratic Republic.) In post-fascist Germany, where memories of the Gestapo were still vivid, setting up a domestic intelligence agency for political surveillance was a politically sensitive move. The Allies had already passed a statute in 1946 disbanding ‘any German police bureaux and agencies charged with the surveillance and control of political activities’. Three years later, writing to the constituent assembly, they reiterated that the new agency ‘must not have police powers’.

This injunction is still observed. BfV agents aren’t allowed to arrest people; they don’t wear uniforms or carry guns. ‘They’re meant to listen as inconspicuously as possible,’ Steinke writes, ‘and take notes.’ Their job, as stated in the legislation, is ‘the collection and evaluation of information … on activities against the free democratic basic order’. Defending the state against threats to this order is the domain of the police and public prosecutors, sometimes acting on information provided by the BfV. The BfV is subordinate to the Ministry of the Interior, and is therefore subject to political instruction, in a way that, say, the office of the public prosecutor is not. Today, nudged by its masters, it has extended its responsibilities from the observation of subversive activities to their prevention.

The BfV was founded in 1950 with a staff of 83. Little is known about its early activities, other than that the majority of its staff were former Nazis, as was the case in most branches of the federal bureaucracy. Its first president, Otto John, had been active in the resistance, escaping to London after the failed putsch of 1944. In 1954 he popped up in East Berlin and revealed in a press conference that the soon-to-be West German Ministry of Defence and the foreign intelligence service that was about to become the BND both employed former SS leaders. After two years in the GDR he returned to West Germany, claiming that he hadn’t gone east voluntarily, or switched sides, but had been abducted. He was sentenced to four years in prison for treason and conspiracy.

Within a few years, the BfV had helped the federal government ban two political parties that had been deemed anti-constitutional, the Socialist Reich Party (SRP) in 1952 and the Communist Party (KPD) in 1956. The categorisation of political parties as anti-constitutional and their subsequent outlawing is peculiar to the German system. Cases are brought by the government and adjudicated by the constitutional court using evidence collected, typically, by Verfassungsschutz officers. The Allies shared the state’s interest in seeing the SRP and the KPD disbanded – the SRP was by its own admission a successor to the Nazi Party and the KPD was essentially the West German branch of the GDR’s ruling party, the Socialist Unity Party (SED). German governments have always viewed party bans as primarily a political, rather than a legal, matter. This was made clear in 1968 when the then minister of justice, Gustav Heinemann, a Social Democrat, invited two representatives of the KPD to his office to inform them that if a new communist party were founded nothing would be done to suppress it. Shortly afterwards that party came into being – as the DKP – and lasted until German unification, when it merged with the SED to form the party now known simply as Die Linke (‘The Left’).

Under Willy Brandt, who became chancellor in 1969, and his successor, Helmut Schmidt, the BfV thrived. Its staff more than doubled from around one thousand in 1969 to more than two thousand in 1980. It expanded again during the war on terror, and then in the wake of Angela Merkel’s opening of the German border in 2015. By 2022 it had a staff of more than four thousand and a budget of €440 million. In the meantime all sixteen federal states, the Länder, had established Verfassungsschutz offices of their own, employing an estimated 2600 officials. Add to this the unknown number of so-called V-Leute – paid informers who spy and report on suspected anti-constitutional activities; Steinke estimates that there are around 1500 of them – and you get roughly 8400 fighters for the constitution fielded by the seventeen governments of the Federal Republic of Germany.

Steinke gives a fascinating account of the way the BfV’s activities and concerns have changed over time. Unsurprisingly, the former Nazis tasked with protecting the democratic constitution in its early years were keen to go after the left, and this remained the BfV’s priority well into the years of student revolt. In 1972, the Brandt government and the Länder passed a decree banning the employment of ‘enemies of the constitution’ (Verfassungsfeinde) in the public sector, aimed primarily at a new generation of teachers and academics who were seen as potentially lacking loyalty to the state. Under the decree, which was rescinded at the federal level in 1985 and by the final Land, Bavaria, in 1991, 3.5 million people, both applicants for and holders of public sector jobs, were subjected to loyalty checks, carried out by the relevant Verfassungsschutz office. In total, 1250 applicants were refused employment and 260 employees dismissed, almost all of them deemed too far to the left to be capable of serving the public interest.

After the collapse of the GDR, and with the post-communist transformation of leftism into what Jürgen Habermas has called ‘constitutional patriotism’, the BfV’s attention began to shift to the right. After unification, right-wing ‘populist’ political parties came to be seen as electoral competition by Germany’s centre-right and centre-left: the Christian Democratic Union (CDU), the Christian Social Union (CSU) and the Social Democratic Party (SPD). In 2001, Gerhard Schröder’s government and both chambers of parliament filed a joint motion to the constitutional court to outlaw the far-right National Democratic Party (NPD), which seemed close to crossing the threshold – 5 per cent of the vote – that would give it representation in parliament. As in the 1950s, it fell to the BfV to assemble the evidence. The case was thrown out by the constitutional court in 2003, on the basis that it was impossible to know how much of this evidence – mostly speeches and party resolutions – had been produced by undercover V-Leute who had joined the party. The problem was exacerbated by the refusal of the BfV to identify its agents, for fear of retribution by genuine party activists. It transpired that the federal and Länder bureaux had kept their agents secret from one another. They continued to do so during the trial, raising the possibility that a majority of those serving on the NPD’s internal committees may have been V-Leute who didn’t know who was and who wasn’t on their side. The BfV was ridiculed for allowing its spies to become indistinguishable from the party they were spying on.

In 2012, when Merkel was chancellor, there was another attempt to have the NPD banned. This time the case was brought by the Bundesrat, the chamber of parliament consisting of delegates from the Länder governments, and followed a series of nine racist murders between 2000 and 2006, carried out by two right-wing terrorists. It was only after both perpetrators committed suicide in 2011 that the police connected the killings. Two years later, five supporters of the National Socialist Underground (NSU), as the group called itself, appeared in court. By then it had become clear that various Verfassungsschutz agencies and informers had been in contact with the NSU but had failed to inform the police, which might have stopped the killings. There are lingering questions about how this happened, not least because several Länder offices still won’t reveal the details of their entanglement with the NSU. The constitutional court closed the case against the NPD four years later, arguing that the party was too weak to enable ‘a successful pursuit of its anti-constitutional goals’. The verdict made it clear that future efforts to have politically irrelevant parties banned for symbolic reasons would not be welcomed.

There was, however, one piece of good news for the government. In its reasoning, the court suggested that if a party was too small to be banned, the government could (after amending the constitution) ask the court to disqualify it from receiving the significant financial support to which German parties are entitled. In 2019, the government and the two chambers of parliament asked the court to exclude the NPD from public funding for six years – the party having shrunk in the meantime into a tiny sect calling itself Die Heimat (Homeland). The motion was granted five years later.

In​ September 2015, when the NPD case was pending, Merkel opened the German border to more than a million refugees, profoundly changing the country’s politics for years to come. In the wake of her decision, the Alternative für Deutschland (AfD), founded in 2013 in neoliberal opposition to European monetary union, emerged as a right-wing populist competitor to Merkel’s CDU and its Bavarian sister party, the CSU. The question of how the AfD and the ‘refugee crisis’ should be handled was fiercely contested within Merkel’s political alliance in the run-up to the 2017 federal election, and in its aftermath. While Merkel may have hoped that opening the border would enable her to switch from a coalition with the SPD to one with the Greens, the CSU, led by Horst Seehofer, shared the AfD’s antipathy to her border policy and for a while seems to have considered the AfD as a coalition partner. This sharpened the BfV’s dilemma over whether its focus should be on left-wing radicalism, as preferred by Seehofer, or on the right, now in the form of the AfD, as Merkel wanted.

Seehofer and the CSU did agree an alliance with Merkel for the 2017 election, but also extracted a promise from her that she wouldn’t run again. This meant that the BfV’s focus had to move to the AfD, which was rapidly becoming an effective electoral force. The then BfV president, Hans-Georg Maaßen, a lifelong CDU member, was deeply uncomfortable with this. Although Seehofer kept him on when he became minister of the interior in the grand coalition government put together by Merkel in 2018, Maaßen increasingly came to be seen as a political liability – he publicly disagreed with Merkel’s claim that a video of an anti-immigration rally in East Germany showed a ‘manhunt’ of refugees, for example. Not long afterwards, Maaßen made public the notes for a speech he had given at a secret international meeting of domestic intelligence services. In them he claimed that the SPD, Merkel’s coalition partner, had ‘radical leftists’ in its ranks. The SPD demanded Maaßen’s dismissal, and in November 2018 he was sacked.

His successor, Thomas Haldenwang, was also a CDU member, though of a more Merkelian sort. According to Steinke, in January 2021 he was about to publish a report announcing that his office had found the AfD suspect of anti-constitutional ‘extremism’ and was placing it under formal observation (which would allow intelligence methods such as wiretapping and infiltration by undercover agents), when he was called to Seehofer’s office. The draft report, which Seehofer had been sent, had cited a prominent AfD politician saying ‘Islam does not belong to Germany.’ Seehofer’s problem was that he and other leading CSU members had repeatedly used those same words. (In 2010 the then federal president, Christian Wulff, a Merkel protégé, had stated that not only Christianity and Judaism ‘belonged to Germany’, but that Islam did too. ‘Der Islam gehört zu Deutschland’ immediately became a slogan of the Merkel wing of the CDU.) The report also noted that ‘agitation against refugees and migrants is the central theme of the public statements of AfD units, where xenophobic patterns of argument combine with Islamophobic resentments,’ and held this to be anti-constitutional. On Seehofer’s insistence this and other passages were toned down or deleted. The final version, approved by the minister more than a month later, stated that ‘advocacy of a restrictive immigration policy is in itself constitutionally irrelevant.’ Only then, in February 2021, did Seehofer give the BfV permission to start its formal observation of the AfD.

After he was sacked, Maaßen joined the Union of Values, a new group of CDU members opposed to Merkel which was registered as a political party earlier this year. Aiming to attract voters from the space between the CDU and the AfD, the party sees itself as a potential coalition partner for the CDU/CSU. In response to this move, Haldenwang put Maaßen, an old friend, under observation (following a recent change in the law, the BfV can now observe individuals as well as organisations). Maaßen’s lawyer extracted from the BfV a letter listing all the statements he had made that the BfV considered to be possible examples of extremism – those under observation are entitled to see this information – and put it online. The letter is long, full of trivia, and must have been the work of an army of agents.

In the summer of 2023 Friedrich Merz, the new CDU leader and a long-standing opponent of Merkel, ended the battle between the CDU and CSU, and declared, as Merkel had, that the AfD should be seen as an enemy rather than as a potential coalition partner. Facing regional elections in September 2024 in three eastern states where the AfD was leading the CDU in the polls, as well as a federal election a year later, Merz bet on what was effectively a grand coalition of ‘all democratic parties’ united in a ‘Kampf gegen Rechts’, a battle against the right. (This was not without risk: quite a few of the CDU’s fellow combatants consider Merz and his party to be more on the other side than on their own, while many of Merz’s supporters would prefer a Kampf gegen Links.) This battle involved erecting an institutional, political and social ‘firewall’ against the AfD, with the aim of excluding it from elections – not quite getting it banned by the constitutional court, but with much the same effect. Behind this was the fact that, having twice refused to outlaw the NPD, the court seemed unlikely to change its mind. It hadn’t outlawed the NPD in 2017 because the party was too small to justify such a measure, but it might now decide that the AfD was too big, and that a ban would damage the court’s legitimacy among much of the electorate, particularly in the East. As long as a party is judged to possess a covert substructure that might allow it to attempt the overthrow of the state – as might have been the case with the SRP and the DKP – the argument for banning it is relatively easy to make. There was no suspicion that the NPD had such a capacity, however; or that the AfD does.

For some time, the four Staatsparteien (the CDU/CSU, Greens, SPD and Free Democrats), which describe themselves as ‘democratic’ as opposed to ‘populist’ or ‘extremist’, have co-operated to exclude AfD MPs from parliamentary business as far as legally possible, for instance by keeping them out of key parliamentary committees. There have also been various forms of social ostracism: for example, the management of the 2024 Berlin Film Festival, at the behest of the state government, disinvited a number of AfD politicians from its opening ceremony, for which all parties in the Berlin parliament traditionally receive free tickets. In March the Bundestag football team announced that AfD MPs and their staff would no longer be allowed to play. But since the Kampf gegen Rechts began, support for the AfD has remained fairly steady, around 15 per cent. (In early July, two weeks after the European elections, the AfD came second in a nationwide poll, with 16.9 per cent, one percentage point above its result in the elections and close to its highest ever poll result of 17.2 per cent in 2023. The AfD was followed by the SPD on 14.6 per cent. As a rule of thumb, what the battle against the right removes from the party’s support in West Germany is balanced by what it adds in the East.) Earlier this year, the AfD reported that its membership has exceeded forty thousand, an increase of more than 60 per cent on 2023.

Whereas the BfV used to operate more or less behind the scenes, under Haldenwang and the SPD’s Nancy Faeser, minister of the interior since 2021, public announcements on investigations into AfD-related right-wing activity have become common. Today the BfV and its Länder equivalents inform the public of their work not only in yearly reports, but also in regular press conferences. Their labelling of enemies of the constitution can be challenged in administrative courts, but it takes time for cases to be heard. Decisions on the status of potentially ‘extremist’ individuals and organisations are made in camera, without those under suspicion being interviewed. Despite its past disasters, Verfassungsschutz agencies are still highly respected by a German public eager for reassurance. Once someone is placed under observation, declared ‘suspect’ or classified as a ‘proven extremist’, the media always notes this status.

After being classified as ‘suspect’ in 2021, the AfD decided to challenge this decision. Its first complaint was dismissed in 2022; in May this year another complaint was dismissed by an administrative court of appeal, clearing the way for the party’s status to be changed to ‘proven extremist’ in time for the autumn elections in the East German states. Branding a party or an individual as ‘proven extremist’ essentially excludes it from participation in the democratic process and deprives those who vote for it of their constitutional right to political representation. This power makes the Verfassungsschutz a formidable tool for incumbent parties. Having another political party declared anti-constitutional in effect amounts to what Carl Schmitt called an ‘innerstaatliche Feinderklärung’: the reconfiguration of an internal adversary as an internal enemy.

The way this works could be seen in the demonstrations that took place at the start of this year, when hundreds of thousands of people marched gegen Rechts in general and the AfD in particular. The protests were supported by all the country’s political parties and social and political organisations, with the exception of those to the right of the CDU/CSU, and were encouraged by all levels of government. They were triggered by a newspaper article about what was uniformly described as a ‘secret meeting’ that took place last November at a hotel outside Berlin. Over dinner the guests – a handful of elderly neo-Nazis, various CDU members and a few AfD politicians – listened to a lecture by Martin Sellner, a leader of the Identitarian Movement of Austria, on his most recent book, which calls for the mass deportation of immigrants, even those with German citizenship. (BfV secret agents were allegedly not involved in the meeting.) The article was based on a report by Correctiv, an investigative journalism outlet, funded by a variety of foundations and the federal government, which specialises in detecting and countering fake news. The report compared the meeting to the Wannsee Conference of 1942, where leading Nazi officials planned the genocide of European Jewry.

The​ Verfassungsschutz plays a leading role in an evolving, very German form of enforcement of political order. This doesn’t exclusively rely on the repression of incorrect speech through punitive sanctions, but encompasses the promotion and rewarding of correct speech. In recent years the German state, together with the self-designated ‘democratic parties’, has funded wholly or in part a variety of institutions devoted to state-compatible political education for state-compatible democracy. These include Correctiv, which now has a staff of sixty and the Amadeu Antonio Foundation, which, with a staff of 95 and a budget in 2023 of €5 million, is involved in every aspect of the Kampf gegen Rechts. A Demokratieförderungsgesetz (‘Law for the Promotion of Democracy’) is about to be passed, which will enable the federal government to set up and fund more organisations like the Amadeu Antonio Foundation. There is also the Forschungsinstitut gesellschaftlicher Zusammenhalt (Research Institute for Social Cohesion), set up by the federal government in 2020, which funds 83 research projects employing more than two hundred researchers across eleven research institutes.

Meanwhile, the BfV has vastly extended its fields of inquiry. Its annual report for 2022 lists ten areas: in addition to the familiar topics of the right, the left and Islamic ‘extremism’, it includes the Reichsbürger movement – Germans who believe that the German Reich never ceased to exist and who tend not to recognise the laws of the federal republic – and Scientology. There is also a new category of anti-constitutional activity known as ‘verfassungsschutzrelevante Delegitimierung des Staates’ (the ‘anti-constitutional delegitimisation of the state’), introduced in response to the protests against the government’s anti-Covid measures. According to the 2022 report, those within the ‘delegitimisation spectrum’ – about 1400 individuals, 280 of whom are said to be ‘ready for violence’ – ‘disparage democratic decision-making processes and institutions or call for official or judicial orders and decisions to be ignored’. The 2023 report points out that ‘this form of delegitimisation often doesn’t take the form of an open rejection of democracy as such.’ Nevertheless, it ‘goes far beyond legally permissible criticism of government, politics and the state’ and ‘undermines democratic order by undermining trust in the state system as a whole, thus jeopardising its ability to function’.

A growing share of the budgets of the BfV and the Länder offices is now spent on the ‘prevention of extremism’. The North Rhine-Westphalia office spent €9.8 million in 2022 – almost half of its annual budget – on ‘educating the public on the dangers of extremism’, offering ‘protection against joining extremist groups’ and ‘helping people to leave them’. The Länder offices co-operate with the BfV in maintaining a database of 3.9 million people, 3.4 million of whom have had background checks carried out for positions considered relevant to public security.

Since the Verfassungsschutz is barred from doing police work, any material relating to illegal activities must be turned over to the police (which, as the NSU scandal showed, doesn’t always happen). Officially at least, this leaves the organisation’s remit as the observation and documentation of behaviour that, while legal, is judged anti-constitutional. Most of the evidence involved is textual: it is by close reading that investigators must decide whether a given utterance displays anti-constitutional attitudes – even though freedom of speech is guaranteed by the constitution.

What makes protecting the constitution even more difficult is that subjects of observation who harbour anti-constitutional intentions often try to mask them by resorting to codewords or circumlocutions. This makes it necessary for the BfV to argue that what might seem to be innocuous speech is in fact extremist. It has long held that the belief that Germany should be ethnically homogeneous (rather than bunt, meaning ‘colourful’) is anti-constitutional. In response, the AfD published a document in 2021 stating that the German people consists of all German citizens, regardless of their ethnic and cultural background. Other AfD statements call for a minimum level not of ethnic but of cultural homogeneity. To this, the BfV’s response is that when the AfD speaks of culture, what it really means is ethnicity. No such claims are made when the CDU/CSU emphasise, as they do untiringly, the need for a German Leitkultur – a ‘leading culture’ that immigrants must accept if they want to live in the country, and particularly if they want German citizenship. (For some of its proponents German Leitkultur includes not just equal rights for women and men but also an unconditional recognition of ‘Israel’s right to exist’ and to ‘defend itself’.) Or when the chancellor, Olaf Scholz, promised that by the time of the state elections in Brandenburg, Saxony and Thuringia this September there would have been deportations of illegal immigrants.

Today, the BfV and the sixteen Landesämter form a central pillar of an institutional regime that bridges state and civil society, and aims at the manufacture of political consent and what has recently come to be called ‘social cohesion’. Underlying this is the peculiar readiness of German elites to carry out orders even before they are given, which means that they may not have to be given at all. Visitors from countries with a tradition of accepting or even respecting eccentricity, such as the UK, France and Italy, or from a country as fundamentally disorderly as the United States, tend to be struck by the monolithic appearance of German politics and society, the way everything seems to fall in line with everything else. This is enabled by the interplay between institutions, formal and informal, and by a culture that perceives dissent as selfish and as a threat to social and political unity (it’s also seen as pointless). A recent example is the wave of accusations of antisemitism against protesters, many of them from outside Germany, who have voiced their horror over the Israeli destruction of Gazan society.

Steinke eventually concludes – after some hesitation resulting from his left-liberal sympathies for ‘militant democracy’ fighting ‘the right’ – that it would be better if the seventeen offices for the protection of the constitution were abolished. Illegal political activities would be dealt with by the police – overseen by the courts – and legal forms of political dissent would be left to the democratic process. But given the indispensable role of the Verfassungsschutz in the defence of political stability, this seems unrealistic. No mainstream political force would dare propose its abolition in the name of democracy and the rule of law. With that off the table, the powers that be may find themselves forced to address concerns they would rather keep out of constitutional bounds, such as the unconditional support of the German state, and the AfD, for the mass killings in Gaza, as well as Germany’s participation, opposed by the AfD, in the escalating proxy war against Russia in Ukraine.