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OSINT as Evidence – The NPD Case

By tetedelacourse @flickr / CC BY-SA 2.0

In 2001, the German government went to the Federal Constitutional Court in order to have the National Democratic Party of Germany (NPD) banned, very broadly on grounds of ‘Volksverhetzung’ by various affiliated individuals and leadership, “a concept in German criminal law that bans the incitement of hatred against a segment of the population”, and, more specifically (cf. Sebastian’s comment below), due to the party’s alleged “aggressive and battlesome line of action against the free democratic basic order”. Two years later, in 2003, the Court decided not to follow up on the NPD’s prohibition after it was found out that quite some members of the party, including leading figures, were acting as ‘V-Leute’ (that is permanent informal human sources) of the German Domestic Intelligence Agency and its local branches. Doubts remained about the extent of the Agency’s involvement, followed by massive public and political outcry. Yet, the prohibition debate continued and intensified after authorities uncovered the ‘National Socialist Underground‘ cell (and some NPD members’ connections with it) late last year, a group responsible for a series of murders, bombings and bank robberies.

As a result, politicians of all parties are now more keen than ever to have the NPD prohibited, and to not again repeat the mistakes done in the past by relying on evidence that at least in part may have been constructed by people on the payroll of the intelligence services. Only this week it was found out that during the 1990s, another prominent right-wing extremist group, the ‘Thüringer Heimatschutz’, was infiltrated by as many as 45 intelligence sources, one fourth of its total membership base, without leading to tangible evidence. So how to go about a prohibition this time?

Exactly, by relying on open source information rather than under the counter chitchat. The interior ministers of the German States are reported to have compiled a 1147 pages long documentation citing 3051 records on the NPD being unconstitutional with only 65 pages (or circa 6%) containing non-open source information, such as tapped phone calls. Collection is still in progress, but it seems like this time authorities have done their homework. Yet, although in another context, Bruce Berkowitz pointed out why not only authorities are to be blamed for such shortcomings:

“There is a critical point in time where officials have to ‘go with what they’ve got,’ ambiguous or not. […] [Therefore, collection here became] the search for intelligence concrete enough to be used as evidence […] that led to intelligence failures that were, in part, really policy failures.”

What is clear is that OSINT can – and indeed should – play a decisive role as evidence in this case because the entity under observation, the NPD, is a political party. A political party, then again, is by definition a public organization, seeking to influence public opinion in order to secure electoral support and to gain power through campaigns etc. So while OSINT may not be as valuable as evidence against secretive groups which use propaganda mainly as part of a warfare strategy (e.g. AQAP’s ‘Inspire‘), political parties use it for persuasion and to demonstrate coherence. Here, propaganda is not one definitional feature among others, but indeed a key element to understanding a political party’s ultimate objectives – and to fathoming its actual structures and capabilities. In the case of the NPD, its ‘hidden agenda’ has been both obvious and visible for decades. Sometimes, it seems, you can harvest without ploughing, as long as you do not sleep away the season.

4 Comments

  1. Anonymous wrote:

    You are talking about the NSU and the “Thüringer Heimatschutz”, neither of which is a political party and therefore pretty much has to be controlled by the Verfassungsschutz. And most of the evidence used to propagate an abolishment of the NPD is based on the connection between those two organizations and the NPD. In my opinion there is simply too much to be lost by pulling out all the “V-Leute”, however ambiguous their role might be, just to risk another attempt at abolishing this scumbag party. Furthermore, by allowing them to act in public, they are given abundant space to prove themselves the total imbeciles they mainly are.

    Wednesday, September 5, 2012 at 21:19 | Permalink
  2. @Anonymous: You’re right that both the NSU and the THS are valid objects for observation by the Verfassungsschutz, as is the NPD, and arguably other extreme political parties (cf. http://osintblog.org/?p=1004)

    I do not agree though that the whole prohibition case stands and falls with the NPD’s alleged or actual connection to the aforementioned groups. The evidence presented almost exclusively deals with the party’s doctrine, statements by its members etc., while supportive links between the party and the NSU or TSH have yet to be explored, and, so far, do not play a substantial role regarding a potential ban.

    Apart from that, Niedersachsen’s interior minister even argued for not using any non-open source material in the legal case at all, therefore abstaining from evidence provided by V-Leute whatsoever (cf. http://www.spiegel.de/politik/deutschland/dossier-ueber-npd-liefert-anhaltspunkte-fuer-verbotsverfahren-a-853397.html).

    Wednesday, September 5, 2012 at 21:40 | Permalink
  3. Sebastian wrote:

    Guter Beitrag,

    aber § 130 StGB war bestimmt nicht der Grund für ein Parteiverbotsverfahren. Denn, wie heißt es so schön im Nurnberg Judgment, “crimes […] are committed by men, not by abstract entities”.

    Die entscheidende Phrase in diesem Zusammenhang lautet “aggressiv-kämpferisches Vorgehen gegen die demokratische Grundordnung”.

    Inwieweit jedoch Ausnahmestrafrecht mit der demokratischen Grundordnung im Einklang schwingt, sei hier dahingestellt.

    Wednesday, September 5, 2012 at 22:03 | Permalink
  4. @Sebastian: Wichtiger Einwand, danke! Werde ihn im Text unter Namensnennung berücksichtigen.

    Thursday, September 6, 2012 at 12:26 | Permalink

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