Wolfgang Streeck
Em poucos anos, o BfV ajudou o governo federal a banir dois partidos políticos que foram considerados anticonstitucionais, o Partido Socialista do Reich (SRP) em 1952 e o Partido Comunista (KPD) em 1956. A categorização de partidos políticos como anticonstitucionais e sua subsequente proibição é peculiar ao sistema alemão. Os casos são movidos pelo governo e julgados pelo tribunal constitucional usando evidências coletadas, normalmente, por oficiais da Verfassungsschutz. Os Aliados compartilhavam o interesse do estado em ver o SRP e o KPD dissolvidos - o SRP era, por sua própria admissão, um sucessor do Partido Nazista e o KPD era essencialmente o braço da Alemanha Ocidental do partido governante da RDA, o Partido da Unidade Socialista (SED). Os governos alemães sempre viram as proibições de partidos principalmente como uma questão política, e não legal. Isso ficou claro em 1968, quando o então ministro da justiça, Gustav Heinemann, um social-democrata, convidou dois representantes do KPD ao seu escritório para informá-los de que, se um novo partido comunista fosse fundado, nada seria feito para suprimi-lo. Pouco depois, esse partido surgiu – como DKP – e durou até a unificação alemã, quando se fundiu com o SED para formar o partido agora conhecido simplesmente como Die Linke (‘A Esquerda’).
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.
https://www.lrb.co.uk/the-paper/v46/n16/wolfgang-streeck/anti-constitutional
Verfassungsschutz: Wie der Geheimdienst Politik macht
por Ronen Steinke.
Berlin Verlag, 221 pp., €24, Junho 2023, 978 3 8270 1471 9
por Ronen Steinke.
Berlin Verlag, 221 pp., €24, Junho 2023, 978 3 8270 1471 9
 |
| Vol. 46 No. 16 · 15 August 2024 |
O Escritório Federal para a Proteção da Constituição (Bundesamt für Verfassungsschutz, ou BfV) deve sua existência aos Aliados. Quando as potências ocidentais deram luz verde para a criação da República Federal da Alemanha em suas zonas de ocupação em 1949, elas também deram à assembleia constituinte permissão para criar "um escritório para coletar e disseminar informações sobre atividades subversivas contra o governo federal". De acordo com Ronen Steinke, a intenção era cortar pela raiz qualquer tentativa de golpe de estado, seja fascista ou comunista, que daria à União Soviética uma desculpa para invadir a Alemanha Ocidental. (Em vez disso, os soviéticos fundaram seu próprio estado alemão, a República Democrática Alemã.) Na Alemanha pós-fascista, onde as memórias da Gestapo ainda eram vívidas, criar uma agência de inteligência doméstica para vigilância política era um movimento politicamente sensível. Os Aliados já haviam aprovado um estatuto em 1946 dissolvendo "quaisquer agências e departamentos policiais alemães encarregados da vigilância e controle de atividades políticas". Três anos depois, escrevendo à assembleia constituinte, reiteraram que a nova agência “não deve ter poderes policiais”.
Esta liminar ainda é observada. Os agentes do BfV não têm permissão para prender pessoas; eles não usam uniformes ou portam armas. "Eles devem ouvir o mais discretamente possível", escreve Steinke, "e tomar notas". Seu trabalho, conforme declarado na legislação, é "a coleta e avaliação de informações ... sobre atividades contra a ordem básica democrática livre". Defender o estado contra ameaças a esta ordem é o domínio da polícia e dos promotores públicos, às vezes agindo com base em informações fornecidas pelo BfV. O BfV é subordinado ao Ministério do Interior e, portanto, está sujeito a instruções políticas, de uma forma que, digamos, o gabinete do promotor público não está. Hoje, estimulado por seus mestres, ele estendeu suas responsabilidades da observação de atividades subversivas para sua prevenção.
O BfV foi fundado em 1950 com uma equipe de 83. Pouco se sabe sobre suas atividades iniciais, além de que a maioria de sua equipe era formada por ex-nazistas, como era o caso na maioria dos ramos da burocracia federal. Seu primeiro presidente, Otto John, foi ativo na resistência, fugindo para Londres após o golpe fracassado de 1944. Em 1954, ele apareceu em Berlim Oriental e revelou em uma entrevista coletiva que o futuro Ministério da Defesa da Alemanha Ocidental e o serviço de inteligência estrangeira que estava prestes a se tornar o BND empregavam ex-líderes da SS. Depois de dois anos na RDA, ele retornou à Alemanha Ocidental, alegando que não tinha ido para o leste voluntariamente, ou trocado de lado, mas tinha sido sequestrado. Ele foi condenado a quatro anos de prisão por traição e conspiração.
Em poucos anos, o BfV ajudou o governo federal a banir dois partidos políticos que foram considerados anticonstitucionais, o Partido Socialista do Reich (SRP) em 1952 e o Partido Comunista (KPD) em 1956. A categorização de partidos políticos como anticonstitucionais e sua subsequente proibição é peculiar ao sistema alemão. Os casos são movidos pelo governo e julgados pelo tribunal constitucional usando evidências coletadas, normalmente, por oficiais da Verfassungsschutz. Os Aliados compartilhavam o interesse do estado em ver o SRP e o KPD dissolvidos - o SRP era, por sua própria admissão, um sucessor do Partido Nazista e o KPD era essencialmente o braço da Alemanha Ocidental do partido governante da RDA, o Partido da Unidade Socialista (SED). Os governos alemães sempre viram as proibições de partidos principalmente como uma questão política, e não legal. Isso ficou claro em 1968, quando o então ministro da justiça, Gustav Heinemann, um social-democrata, convidou dois representantes do KPD ao seu escritório para informá-los de que, se um novo partido comunista fosse fundado, nada seria feito para suprimi-lo. Pouco depois, esse partido surgiu – como DKP – e durou até a unificação alemã, quando se fundiu com o SED para formar o partido agora conhecido simplesmente como Die Linke (‘A Esquerda’).
Sob Willy Brandt, que se tornou chanceler em 1969, e seu sucessor, Helmut Schmidt, o BfV prosperou. Sua equipe mais que dobrou de cerca de mil em 1969 para mais de dois mil em 1980. Expandiu-se novamente durante a guerra contra o terror e, em seguida, na esteira da abertura da fronteira alemã por Angela Merkel em 2015. Em 2022, tinha uma equipe de mais de quatro mil e um orçamento de € 440 milhões. Nesse ínterim, todos os dezesseis estados federais, os Länder, estabeleceram seus próprios escritórios Verfassungsschutz, empregando cerca de 2.600 funcionários. Adicione a isso o número desconhecido dos chamados V-Leute — informantes pagos que espionam e relatam atividades anticonstitucionais suspeitas; Steinke estima que haja cerca de 1.500 deles — e você obtém cerca de 8.400 lutadores pela constituição colocados em campo pelos dezessete governos da República Federal da Alemanha.
Steinke faz um relato fascinante da maneira como as atividades e preocupações do BfV mudaram ao longo do tempo. Sem surpresa, os antigos nazistas encarregados de proteger a constituição democrática em seus primeiros anos estavam ansiosos para ir atrás da esquerda, e isso continuou sendo a prioridade do BfV até os anos de revolta estudantil. Em 1972, o governo Brandt e os Länder aprovaram um decreto proibindo o emprego de "inimigos da constituição" (Verfassungsfeinde) no setor público, visando principalmente uma nova geração de professores e acadêmicos que eram vistos como potencialmente desprovidos de lealdade ao estado. Sob o decreto, que foi rescindido em nível federal em 1985 e pelo Land final, Baviera, em 1991, 3,5 milhões de pessoas, tanto candidatos quanto detentores de empregos no setor público, foram submetidos a verificações de lealdade, realizadas pelo escritório Verfassungsschutz relevante. No total, 1250 candidatos tiveram o emprego recusado e 260 funcionários demitidos, quase todos considerados muito à esquerda para serem capazes de servir ao interesse público.
Após o colapso da RDA, e com a transformação pós-comunista do esquerdismo no que Jürgen Habermas chamou de "patriotismo constitucional", a atenção do BfV começou a se voltar para a direita. Após a unificação, os partidos políticos "populistas" de direita passaram a ser vistos como competição eleitoral pela centro-direita e centro-esquerda da Alemanha: a União Democrata Cristã (CDU), a União Social Cristã (CSU) e o Partido Social-Democrata (SPD). Em 2001, o governo de Gerhard Schröder e ambas as câmaras do parlamento entraram com uma moção conjunta no tribunal constitucional para proibir o Partido Nacional Democrático (NPD) de extrema direita, que parecia perto de cruzar o limite - 5% dos votos - que lhe daria representação no parlamento. Como na década de 1950, coube ao BfV reunir as evidências. O caso foi rejeitado pelo tribunal constitucional em 2003, com base no fato de que era impossível saber o quanto dessas evidências — principalmente discursos e resoluções partidárias — tinham sido produzidas por V-Leute disfarçado que havia se juntado ao partido. O problema foi exacerbado pela recusa do BfV em identificar seus agentes, por medo de retaliação por ativistas genuínos do partido. Transpirou que os bureaux federal e dos Länder mantiveram seus agentes em segredo um do outro. Eles continuaram a fazer isso durante o julgamento, levantando a possibilidade de que a maioria dos que serviam nos comitês internos do NPD podem ter sido V-Leute que não sabiam quem estava e quem não estava do lado deles. O BfV foi ridicularizado por permitir que seus espiões se tornassem indistinguíveis do partido que estavam espionando.
Em 2012, quando Merkel era chanceler, houve outra tentativa de banir o NPD. Desta vez, o caso foi movido pelo Bundesrat, a câmara do parlamento composta por delegados dos governos dos Länder, e ocorreu após uma série de nove assassinatos racistas entre 2000 e 2006, realizados por dois terroristas de direita. Foi somente depois que ambos os perpetradores cometeram suicídio em 2011 que a polícia conectou os assassinatos. Dois anos depois, cinco apoiadores do National Socialist Underground (NSU), como o grupo se autodenominava, compareceram ao tribunal. Naquela época, ficou claro que várias agências e informantes do Verfassungsschutz estavam em contato com o NSU, mas não informaram a polícia, o que poderia ter interrompido os assassinatos. Há questões persistentes sobre como isso aconteceu, principalmente porque vários escritórios dos Länder ainda não revelam os detalhes de seu envolvimento com o NSU. O tribunal constitucional encerrou o caso contra o NPD quatro anos depois, argumentando que o partido era fraco demais para permitir "uma busca bem-sucedida de seus objetivos anticonstitucionais". O veredito deixou claro que esforços futuros para banir partidos politicamente irrelevantes por razões simbólicas não seriam bem-vindos.
No entanto, houve uma boa notícia para o governo. Em seu raciocínio, o tribunal sugeriu que, se um partido fosse pequeno demais para ser banido, o governo poderia (após emendar a constituição) pedir ao tribunal que o desqualificasse de receber o apoio financeiro significativo ao qual os partidos alemães têm direito. Em 2019, o governo e as duas câmaras do parlamento pediram ao tribunal que excluísse o NPD do financiamento público por seis anos — o partido tendo encolhido nesse meio tempo em uma pequena seita que se autodenomina Die Heimat (Pátria). A moção foi concedida cinco anos depois.
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.
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.
Wolfgang Streeck é professor emérito de sociologia no Instituto Max Planck.
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