The Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz, or BfV), Germany's domestic intelligence service, has argued that the populist far-right Alternative for Germany party (AfD) is anti-constitutional. It therefore classified the political party as a "suspected case" in 2021.

The party took legal action against this decision at the Cologne Administrative Court, but was unsuccessful. A higher regional court in western Germany has now confirmed that ruling, meaning the AfD may be classified as a "suspected" far-right extremist organization.

The court proceedings have drawn attention to a state organization that acts as an early warning system to detect threats to democracy, and is one of Germany's most important intelligence agencies. It gathers intelligence while coordinating information gathered by the 16 state-level intelligence agencies.

Germany has several intelligence organizations that collect information for the federal and state governments. At a federal level, these include the Military Counterintelligence Service, or Militärischer Abschirmdienst (MAD), and the Federal Intelligence Service, or Bundesnachrichtendienst (BND), which is responsible for foreign intelligence.

The BfV has no executive power, but it collects and evaluates information on anti-democratic movements and individuals and espionage activities, which is then passed on to the government — specifically the Interior Ministry. The government can then trigger police action, if necessary, or even ban political organizations, a move that must be voted on in parliament.

The police forces in the 16 states are tasked with averting specific threats, while the Federal Criminal Police Office (BKA) and the Federal Police are responsible for border protection.

Right-wing extremism considered greatest danger

Around 4,300 people work at the BfV in its Cologne headquarters and its Berlin office, focusing on all forms of political and religious extremism. For several years, annual BfV reports have warned that right-wing extremism poses the biggest threat to German democracy, though its reports also include information on Islamist groups and left-wing extremists in the country.

While clandestine BfV operations are rarely reported on, the organization has occasionally made headlines with high-profile scandals. Among the most notable of these was the failure to act on evidence about the far-right terrorist group the National Socialist Underground (NSU), a group of at least three neo-Nazis that carried out 10 murders and several bombings and robberies between 1999 and 2007.

After the NSU was uncovered in 2011, it emerged that the BfV and some of the state-level agencies had been surveiling its members for more than a decade but had failed to take action. A parliamentary inquiry into the NSU investigation concluded there had been a "total failure" of state institutions. After this disaster, the BfV's structures and responsibilities were reformed several times.

Overseeing the secret service

A parliamentary supervisory committee monitors all the federal intelligence services. Each party represented in the Bundestag names its candidates, who then must be approved by the whole parliament. This was long just a formality, but for two years now, candidates put forward by the far-right Alternative for Germany (AfD) have failed to get approval from the other parties.

That is partly because the BfV now considers the AfD itself as "partly right-wing extremist," leading the other Bundestag parties to argue that AfD politicians should therefore not be supervising the work of the BfV.

Not only that, the AfD's youth organization Junge Alternative (JA) and its chapters in the eastern states of Saxony, Saxony-Anhalt, and Thuringia have been found by intelligence services to be "proven right-wing extremist."

Subject to scrutiny of the courts

The BfV has the power to surveil members of organizations suspected or proven to be extremist. Such a classification can, however, be challenged in the courts. The AfD has repeatedly taken legal action against what it considers to be politically motivated measures by the BfV. Their lawsuit against the classification in 2021, however, was dismissed by the Cologne Administrative Court a year later.

Other parties and individual lawmakers have also taken legal action against BfV surveillance. In 2013, Bodo Ramelow, head of government in Thuringia and prominent member of the socialist Left Party, brought a successful appeal to the Federal Constitutional Court, which ruled that his surveillance was a disproportionate interference with his work as an elected representative.

In its ruling, Germany's highest court outlined the conditions under which elected members of parliament may be subject to surveillance: "If there are indications that the MP is abusing their mandate to fight against the free democratic basic order or is actively and aggressively combating it."

Whether this applies to AfD lawmakers may also have to be decided by the courts. The current vice-president of the Bundestag, Petra Pau of the Left Party, is opposed to having the constitutionality of political parties assessed by the domestic intelligence agency. Pau herself was under surveillance for many years, and eventually won a court battle to gain access to her files.

She told DW in 2019 that she felt the AfD should not be subject to surveillance by the BfV. "I don't consider surveillance by the secret services to be the appropriate means of politically suppressing this openly racist and misanthropic party," she said, adding that Germany has criminal laws for this.

This article was originally written in German. It was first published in February 2024 and later updated to reflect latest developments.

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