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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.

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