BERLIN — Should a government agency put a democratically elected political party under surveillance if the party is feared to be a threat to the democratic order?
This question is the subject of fierce debate and a legal battle here. Late last month, the German media reported that the domestic intelligence service, the Office for the Protection of the Constitution, was poised to declare the far-right Alternative for Germany party a “suspected case” of antidemocratic extremist activity. The party’s anti-immigrant and anti-Islam talk has emboldened far-right extremists, and some of its officials have ties to extremist groups.
The “suspected case” designation would give the intelligence service broad powers to surveil the party’s politicians and staff members, including tapping their phones and monitoring their movements. Certain highly radical parts of the party are already under surveillance.
Leaders of Alternative for Germany — the largest party outside the governing bloc in Parliament — pre-emptively took the Office for the Protection of the Constitution to court, arguing that the designation was a political maneuver designed to hurt the party’s chances in federal elections in September. The legal battle could take months to resolve.
The dispute raises questions about how a democratic state should draw the line between what is and isn’t politically acceptable, especially when extreme opinions seem to foster violent action. In the United States, these questions have become more urgent in the wake of the storming of the Capitol last month. Germany has been wrestling with them for years — and with renewed focus since the Alternative for Germany won its first parliamentary seats in 2017.
The German experience suggests that democracies must establish defense mechanisms against such internal extremist threats. This includes drawing clear lines for acceptable democratic behavior and formally penalizing parties and movements that cross them.
The Alternative for Germany party — widely known by its German initials, AfD — was founded in early 2013, driven largely by concerns about the country’s involvement in international debt relief. The party became a major political force by protesting the influx of refugees into Germany in 2015 and 2016. It has grown more radical over the years, often blurring the lines between its official party structures and the country’s informal network of right-extremist movements.
Some in the party, for example, have ties with organizations like Generation Identity, a far-right youth group opposed to political liberalism and non-European immigrants. Andreas Kalbitz, an AfD leader in the eastern German state of Brandenburg, was ejected from the party last year after he was accused of belonging to a banned neo-Nazi youth organization and failing to disclose his membership.
The Constitution that Germany adopted after World War II establishes what is often called a “defensive democracy,” with several provisions aimed at preventing a far-right extremist force like the Nazis from taking power again. Not only can the domestic intelligence service gather information on any political movement or party that it deems a threat to the democratic order, but the constitutional court can also ban parties based on what the intelligence service finds. (Such bans have occurred twice since 1949, first with the neo-Nazi Socialist Reich Party in 1952 and again with the Communist Party of Germany in 1956.) Publicly displaying Nazi symbols is illegal in Germany, as is denying the Holocaust, and hate speech is less protected under the law than it is in the United States.
Since the AfD entered Parliament, it has frequently tested this “defensive democracy,” pushing — and often crossing — the boundaries of acceptable public discourse. Its politicians have suggested that migrants could be shot at the border or gassed. They have dabbled in conspiracy theories like the “Great Replacement,” which imagines a coordinated campaign to replace Europe’s white population with non-European people. They have even sought to downplay the horrors of the Nazi past: An AfD leader named Alexander Gauland notoriously described the Nazi era as a mere “speck of bird poop” in German history.
All this comes as political violence here is on the rise. In the past two years, right-wing extremists have murdered the politician Walter Lübcke (he had argued that Germans who did not support taking in refugees could leave the country themselves); killed two people after attempting to storm a synagogue on Yom Kippur in Halle; and shot and killed nine people in two hookah bars in Hanau. Although none of the perpetrators were directly linked to the AfD, its rhetoric has helped foster anti-refugee, anti-immigrant sentiments in Germany.
That does not mean that using constitutional tools to push back against an extremist political party is easy. More than five million Germans voted for the AfD in 2017, and while its support has dropped during the pandemic, it remains a significant force in the German Parliament. Whenever government agencies or other parties penalize the AfD, its leaders claim that the party is being persecuted — which only bolsters the conviction among its supporters that more mainstream political parties are indifferent to their concerns.
In addition, the Office for the Protection of the Constitution has sometimes contributed to the problem it now seeks to solve. It has been rightly criticized, for instance, for having a historical blind spot when it comes to the far right. One of its chiefs, Hans-Georg Maassen, lost his job in 2018 after downplaying far-right violence in Chemnitz.
Still, Germany has an arsenal of constitutional tools to protect against extremist forces, even if using them generates controversy and accusations of persecution. “Defensive democracy” is working, at least in the sense that the domestic intelligence service has recognized a threat and is taking steps to eliminate it. At a time when disinformation, political polarization and far-right forces are combining to endanger democracies across the West, other countries should take note.
Emily Schultheis is a freelance journalist and a fellow with the Institute of Current World Affairs.
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