Our unofficial Paris correspondent, attorney James Gillespie, provides another round of description/commentary regarding the French government’s response to the terrorist attacks of November 13. You can read his first two reports here and here.
The first portion of James’ latest report is descriptive and includes new measures proposed by the French government which I found especially interesting. The second portion is James’ commentary, which I commend, in particular, to the attention of our readers:
State of emergency
The state of emergency declared in France last Friday, November 13th, was confirmed by the French Parliament by votes on Thursday and Friday, November 19-20th (LOI n° 2015-1501 du 20 novembre 2015).
The state of emergency has been prolonged for a period of three months as from November 26th; i.e., until late February 2016, unless discontinued earlier by the Administration.
The act approved by the Parliament this week also modified the basic law which grants the government its exceptional powers (Loi n° 55-385 du 3 avril 1955 relatif à l’état d’urgence). Many of the changes adopted are simply modernizing an antedated law, but a number of them are worthy of comment:
(a) House arrest and electronic tracking. The Minister of the Interior may order the house arrest of anyone with respect to whom “serious reasons exist to believe” that such person presents a risk to public security.
In addition, with respect to individuals already having been convicted of terrorism-related crimes and whose sentence has been completed, the Minister may order the wearing of electronic tracking bracelets.
As before, no warrant is needed for such detention and/or tracking orders.
(b) Dissolution of associations. The Council of Ministers (i.e., the President and the cabinet), may order the dissolution of associations and the banning of certain groups which “pose grave threats” to public order. The security services are given the right to conduct surveillance to prohibit the re-constitution of banned organizations.
It is worth noting that both the Prime Minister and the Minister of the Interior have publicly speculated about using such measures to close radical mosques.
(c) Requisitions. The Administration is given the right, as in time of war (and subject to the Defense Code governing general military mobilizations) to requisition private property and private services.
(d) Blocking communications and websites. The Administration is given the right to “interrupt any communication service” that “provokes or defends the commission of acts of terrorism”.
In public statements, the Administration has been explicit that this measure is intended to permit the government to shut down websites and various communications tools (such as the secure messaging service “Telegram”) used by terrorists and terrorism recruiters.
However, the revised law expressly revoked the Administration’s power (never used in the present crisis) to directly censor the press.
(e) Military law. The law adopted this week revoked the Administration’s ability, possible under the former drafting but apparently not used, to impose military law and military courts in the case of domestic crimes.
The use of the military in domestic security affairs remains, however, possible. In fact, the Administration announced this week that an additional 1,500 soldiers had been assigned to supplement the national and local police forces.
(f) Searches and seizures. The revised law reinforces the Administration’s ability to conduct searches and seizures, at any time or place, without warrants. In particular, it specifies that the any IT (computers, hard drives, etc.) thus seized may also be searched. However, it clarifies that the offices of Parliamentarians, lawyers and journalists are exempt from such warrantless searches.
(g) Civil redress. The law expressly provides that measures taken by the Administration under the state of emergency may be challenged in administrative courts (though, as I’ve noted previously, such challenges can take some time.)
(h) Other powers. The government maintains the other powers previously authorized in the law, such as the right to restrict movement.
For example, on Thursday the Interior Ministry issued a decree (JORF n°0268 du 19 novembre 2015 page 21523) prohibiting certain football (soccer) fans from attending League 1 and League 2 championship matches being held in France this weekend.
Closing of the border
Last Friday, President Hollande announced the re-imposition of border controls at the French frontier, a measure that largely suspends the Schengen accords of 1985.
This week it was confirmed that such border controls will remain in place indefinitely.
On Monday, November 16th, President Hollande addressed a joint session of Parliament (the House of Deputies and the Senate). In the course of this speech, he invoked the “solidarity clause” of the European Treaty, adopted in Lisbon in December 2007.
This clause, which has never before been utilized, provides that “if a Member State [of the EU] is the object of armed aggression on its territory, the other Member States shall provide all aid and assistance in the power,” subject to Article 51 of the UN Charter (concerning the right of the UN Security Council to take measures for international peace and security).
In particular, France has requested closer cooperation between border guard services in other EU countries, and especially the sharing of information on non-EU citizens admitted to the Schengen area, a measure that had been opposed due to privacy concerns.
The press has reported that other EU Member States have reacted favorably to this request, though I have not identified specific EU legislation on this point.
In his presentation to the joint session of Parliament on Monday, President Holland called for several new measures.
The first major request was for an amendment to the French Constitution to adapt it to the needs of the current conflict. He stated that the provisions of the current Constitution (Article 16, providing total power to the President when the Republic is in danger, and Article 36, dealing with a state of siege) are inappropriate to actual needs.
Notwithstanding somewhat hyperbolic press coverage, any Constitutional amendment is likely to be fairly anodyne, and to simply provide firmer legal footing to the state of emergency measures already adopted.
Secondly, and more radical, he called for bi-national citizens to be stripped of their French nationality if convicted of terrorism, even if those persons were born in France, so long as such individuals would not thereby be rendered stateless. I have not yet seen a draft legislative text on this proposal, and much will depend on the details.
This week has witnessed the police carrying out hundreds, if not thousands, of searches and dozens of arrests, both in the Paris area and in other cities across France. At least one such raid developed into a major firefight, with several terrorists killed and several police wounded.
The scale of these operations, and the simple fact that the police were able to launch them so quickly, indicates that something in the old order of things was wrong. The police clearly knew where they wanted to go, but could not go there without the correct political and/or legal impetus.
It is undeniable that the November 13th attacks changed the political calculus in a way that even the Charlie Hebdo attacks did not. However, it is very likely that the relaxation of procedural safeguards under the state of emergency has untied the hands of the police to a significant extent.
Of the legal changes put in place since the attacks, two in particular stand out: the authorization of warrantless searches, seizures and detentions, and the authorization for the government to shut down communication systems and websites.
Personally, I am not terribly concerned about the search, seizure and detention measures. I think that the previous rules – in particular concerning detention – were far too lax. In part, though, this is because I also have faith in how they are being applied. It feels funny for me to say, having been far from a supporter of President Hollande, but I have confidence that the current French Administration is unlikely to misuse its powers in massive ways, and I believe the press will, by and large, and in the long run, keep an eye on the inevitable abuses.
(As a case study, one can note that most of the people detained after the gun battle in Saint-Denis this week were rapidly released. This is clearly not a case of the government conducting indiscriminate mass arrests.)
Similarly, in time of war, I have no problem with bombing an enemy’s recruitment depot. If that depot happens to be online, it’s still a legitimate target. While the literal text of the law permits the government to shut down sites that “defend” acts of terrorism, I don’t see these measures being applied against La Libération for an overwrought editorial, or against the New York Times on account of a Paul Krugman opinion piece.
It would be irresponsible not to admit that the powers that have been granted the French Administration are sweeping.
In the US, many of these measures would be flatly unconstitutional. In France, they are without precedent since the Algerian wars of the 1950s and ‘60s (I don’t count the brief, geographically-limited, half-hearted and widely-contested state of emergency declared by President Chirac in 2005 during the Paris suburb riots).
And it would be naïve to expect that the Administration will not be guilty of some overreaching. In the present climate the police have massive incentives to err on the side of going too far, rather than not going far enough. Further, the power of the police is enhanced by the consideration that it is not clear that persons placed under administrative detention have the right to an attorney; it is even less clear that they have the right to court-appointed counsel, as they would in criminal courts.
All in all, as with any public policy, this is a situation of trade-offs.
Personally, while I am a firm supporter of both free speech and procedural rights for accused criminals, I support the French government in the new measures – I believe that the benefits are worth the costs. At the same time, I believe that such support should not be blind, should be granted in full recognition of the collateral damage that may be inflicted, and should be conditioned on political leaders, journalists, lawyers and citizens holding the government to a high standard in exercising the vast powers it now has at its disposal.
Fluctuat nec mergitur.