Lawyer on the classification of the AfD: “What the Federal Office for the Protection of the Constitution is doing is illegal”

Isn't he just doing his job?

Of course, it's supposed to collect material and report on it. It does that every year in its reports. But it's clear that there are political repercussions when the Federal Office for the Protection of the Constitution goes public with a press release like this and labels individual parties as undemocratic. This violates the principle of neutrality that applies to all state authorities.

What would be the alternative?

The Office for the Protection of the Constitution must adhere to clear legal guidelines. It must provide factual, objective, and neutral information about anti-constitutional activities. Political propaganda is prohibited. What it says in public must be based on a sufficiently solid factual basis. Assumptions and interpretations are far from sufficient. If I measure the latest statements against these legal standards, I must say: What the Office for the Protection of the Constitution is currently doing is illegal.

The report is not public, but some media outlets have been able to view it. Since it became known that the AfD had been upgraded, calls for a ban have grown louder again. However, a prerequisite for a party ban is an aggressive, combative stance. Do you recognize that? I don't see it in what has been published so far. Two key factors are important for a ban: a party's anti-constitutional thinking and—this is usually ignored in the discussion—anti-constitutional actions. Prime examples of this are calls for violence or violence on the streets, through demonstrations with violent riots, for example. I'm not aware of that with the AfD, at least not across the board.

Especially since the Federal Office for the Protection of the Constitution would have included that in its press release, wouldn't it?

Absolutely. I assume they want to cement the AfD behind a political firewall.

Who do you mean by "they"? Not the Federal Office for the Protection of the Constitution itself. That's a bureaucracy that does what politicians demand of it. A week ago Friday, it was Nancy Faeser, the outgoing Minister of the Interior, who wanted to quickly announce the upgrade. The decision to publish is purely political. It is made by the Ministry of the Interior. Yet it's very unusual for ministers to make such far-reaching decisions shortly before handing over power to their successors.

It strikes me that those now calling for a ban would benefit from it in terms of power politics. These are primarily Green, Left Party, and SPD politicians, perhaps even some Christian Democrats. If the AfD weren't a stigmatized party, but a normal player on the political stage, there would currently be no prospect of left-wing majorities in the country. This shows why, back when our constitution was being written, the question of a possible party ban was so controversially discussed.

How did it work back then?

The authors of the Basic Law feared that a party ban could be abused. The worst-case scenario they feared was: political parties would have their political rivals banned by the Constitutional Court. That would be completely contrary to the spirit of the constitution, which emphasizes political competition, ultimately decided by the voters. Nevertheless, the party ban was received with a sense of unease, given the still-fresh memories of the Weimar Republic.

"Do Alice Weidel and Tino Chrupalla represent right-wing extremist ideas and thus shape the entire party?" Kay Nietfeld/dpa

The AfD is defending itself against the Federal Office for the Protection of the Constitution in expedited proceedings. The intelligence agency has now issued a "preservation pledge" that prohibits it from publicly communicating the upgrade until the court has ruled in the case. However, the report remains in effect. Do you consider the party to be right-wing extremist?

Interestingly, we no longer even talk about what "right-wing extremist" actually means. That was the subject of the second NPD ban proceedings. That failed because the party was no longer relevant enough. But the Federal Constitutional Court declared at the time that both prerequisites for a ban were met – the party's way of thinking and its aggressive, combative stance. And right-wing extremism means: leadership principles instead of democracy, excessive nationalism, even chauvinism, as well as extreme racism and anti-Semitism, and a fundamental willingness to use violence. A party must exhibit these characteristics to be rightfully described as right-wing extremist.

What about the AfD? The Federal Office for the Protection of the Constitution says: "Specifically, the AfD, for example, does not consider German citizens with a migration history from predominantly Muslim countries to be equal members of the German people, as ethnically defined by the party." It speaks of a "nationalistic understanding of society and people." It distinguishes between "Germans" and "passport Germans."

If the party wanted to fundamentally and fundamentally deny migrants German passports, that would indeed be a problem. Excluding people from the nation based on their birth would be unconstitutional. But does the AfD do that? This is not clear from the quotes presented by the Federal Office for the Protection of the Constitution. Migrants with passports are, of course, also equal German citizens. But one must be precise. The Basic Law also recognizes both: a nation and ethnic affiliation, which arises from culture, customs, or traditions. Anyone who emphasizes ethnic affiliation is not an enemy of the constitution as long as they do not derive legal discrimination from it. But I see a different problem.

Which?

The Federal Office for the Protection of the Constitution has compiled countless quotes from the AfD. Many can be found in the media or on the portal Ask the State. However, these statements do not allow the conclusion that the entire party is right-wing extremist. What unimportant provincial politicians or officials say cannot be attributed to the party as a whole. On the left wing of the SPD, for example, among the Jusos (Young Socialists), a great many left-wing extremist quotes can be found. But that does not mean the SPD is "certainly left-wing extremist." In politics, it matters who says something. Do the extreme statements come concentrated from the AfD's center of power? Do Alice Weidel and Tino Chrupalla espouse right-wing extremist ideas and thus shape the entire party? I don't see that, and the Federal Office for the Protection of the Constitution's collection of quotes does not support it either. Extreme polemics, exaggerations, perhaps even malicious or unsavory formulations – that is not right-wing extremist. That is what opposition parties do and are allowed to do in a democracy.

That's your assessment. Others warn of an AfD attack on democracy. What's your response?

Either I underestimate the party, or others overestimate it. I don't think I underestimate the AfD. I don't see how the AfD is calling for the overthrow of the democratic system. If it slanders parties or members of the government in a sweeping and polemical manner, that is not an attack on the system itself. It doesn't therefore want to abolish democracy and install a leader. Criticism of the government is not criticism of democracy. People are quick to say that the Nazis were underestimated in 1933, too. But that was a completely different situation. Today, democracy is much more stable; we are not experiencing a global economic crisis, and there is no bloody political violence on the streets. And the AfD alone could not seize power overnight. Berlin is not Weimar. Besides, we know from recent history that parties that are partly hostile to the system can certainly be integrated.

Which parties are you thinking of?

First, there were the Greens in the 1980s. I was a member of the Greens in Rhineland-Palatinate as a schoolboy. There were genuine blood-and-soil Nazis among them, attracted by environmentalism. And a lot of hardcore left-wing extremists. The same was true of the Alternative List (AL) in Berlin. But they were integrated by being included in everyday democratic politics. Second, of course, there was the Left Party in the 1990s, the then PDS , with its Stalinists and the Communist Platform. So, you can integrate parties. But you can't do that by building firewalls.

However, neither the Greens nor the PDS were polling at 25 percent. Perhaps it's too late for them to be integrated.

Or it's high time for integration. You can't lock 25 percent of the electorate behind a firewall. That destroys democracy. But you're right: This distinction is important, yes. Nevertheless, the question remains whether the party as a whole is unconstitutional. And the Left was certainly very strong in the East.

The AfD's upgrade became known while the party is still fighting its classification as a "suspected case." After the Cologne Administrative Court and the Higher Administrative Courtof North Rhine-Westphalia (OVG) upheld the Federal Office for the Protection of the Constitution's assessment, the AfD filed a "non-admission complaint" with the Federal Administrative Court because the OVG denied an appeal. Is the approach of the Interior Ministry and the intelligence service risky?

This simultaneity is very interesting. The classification as a suspected case is not yet legally binding. If the Federal Administrative Court approves the appeal against non-admission, the AfD could appeal. It certainly would. And then the focus would be on possible legal errors in the proceedings so far. It could therefore happen that the court still overturns the classification as a suspected case. In that case, the findings obtained through intelligence services – such as informants or wiretapping – would be illegal. Then the basis for the classification as "confirmed right-wing extremist" would collapse. Against this backdrop, I can only say: A prudent Minister of the Interior would have acted differently.