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The Temptation of a “Patriot Act” in France

January 12, 2015

By Jacques Follorou and Franck Johannès

Translated from French

There’s nothing worse for the legal system than these moments of intense unanimity, when the wave of emotion buries all reason. The penal code, however, has the most difficulty moving in reverse. The exceptional measures taken in times of crisis are enshrined forever: gradually, the exceptional procedures take precedence over common law. Does France need a “Patriot Act” after the killings at Charlie Hebdo and Porte de Vincennes? The police lobby, as is only fair, has begun to ignore the discretionary loopholes and is demanding more resources.

A meeting at the Élysée Palace, dedicated to homeland security, was to be held Monday, January 12, but the very idea of launching a “war on terrorism” is worrying. This “war on terrorism” entered US law seven weeks after September 11, 2001, by a Congressional resolution. The resolution signed into law “the notion of illegal enemy combatant, recalls Mireille Delmas-Marty, Professor at The Collège de France. [These are] people who do not benefit from guarantees of the penal code, because they are enemies, nor from those of war prisoners, because they are unlawful combatants.”

The judge’s role is marginalized: This is war. With the Patriot Act, introduced by the Order of 13 November 2001, the military commissions become jurisdictions, and despite the resistance of the Supreme Court, they openly violate international law. Guantanamo prisoners are being held and tortured in Cuba at the sole discretion of American forces, with minimal guarantees granted by US law; this unconventional measure can also now be found in Europe, which has agreed to host clandestine “interrogation” centres. The NSA, in the name of anti-terrorism, set up a huge spy network, which reaches Angela Merkel’s phone. The Patriot Act, theoretically only applicable for four years, was extended twice, currently until 2015.

In France, the government has already passed the Act of 13 November 2014, which bans suspected jihadists candidates from leaving the country, and created an offense of “individual terrorist undertaking”. Not all of the decrees have yet been signed, but it is clear that the new legislation does not prevent departures for Syria and does not prepare France for the type of attack we saw in Paris this month. 

A Flaw 

The Prime Minister said on January 9 that “it may be necessary to take further measures”, but that “we will not construct legislation in haste”. The pressure to go further is nevertheless mounting. On Sunday, January 11, Bernard Squarcini, The head of France’s Central Directorate for Domestic Intelligence (DCRI, now DGSI) from 2008 to 2012, before being dismissed by the Left, gave his analysis in an interview with Le Monde.

He ensures that the French, acting upon US intelligence, have carefully monitored one of the Kouachi brothers. “But it was fruitless, and that’s when the legal framework that exists in France kicks in: the president of the National Commission for the Control of Security Interceptions (CNCIS) tells you to stop because the target of your request does not appear to be or is not active.” In effect, “this is a flaw in the system as a whole. The intelligence services can only work with the toolbox with which it is provided. That’s OK if you have to repair a 403, but if you want to repair a BMW, you might need to change the toolbox.” 

Raising the debate

This metaphor is strong, but misses an essential point. The CNCIS is only in charge of non-judiciary hearings. The Commission, a small organisation founded in 1991, consists only of three judges, a secretary, accountant, an assistant and a driver. The procedure is cumbersome: the Commission gives an opinion, the Prime Minister makes the decision, and it’s a third party, the Interministerial Control Group (GIC), which executes it.

But most of the anti-terrorism protocol is based on a law from 23 January 2006, which circumvents the CNCIS. A “qualified person” – a policeman – gives the authority to collect registration data, the main tools of the investigators. This person’s role was extended by the military program law of 18 December 2013 and its extended powers: it depends, quite formally, on the Prime Minister and is no longer only applicable to terrorism, but also organized crime or safeguarding economic potential, and the law allows real-time geolocation. 

“We are in the realm of terrorism,” insists Bernard Squarcini, “we need to raise the standard of the debate and create some exceptional methodologies.” He calls for a new “legal framework” and believes that the country has lost “two and a half years” (since the departure of Nicolas Sarkozy). On the contrary, one anti-terrorist magistrate  believes that “there are no real loopholes to fill, we have all the tools we need, the 1995 attacks gave us a definition for a “terrorist”; the attacks in 2001 allowed us to combat the financing of terrorism, and the Merah affair to target individuals outside of French soil.”

It is undeniable that the legislation needs to be updated . A new intelligence bill is under way and should be reviewed before the before the end of the French President’s five year term. There are two possibilities: either a Patriot Act, or legislation that certainly gives considerable resources to the fight against terrorism, but kept within reason. 

Up until last week there was talk of transforming CNCIS into a higher authority, responsible for overseeing phone interceptions, data collection and geolocation. With a quick procedure, but based on the principle wisely established by the 1991 Act: an opinion of an independent authority, an executive decision, and execution by a third party. “In order to prevent the abuse of power, Montesquieu said, it is necessary from the very nature of things that power should be a check to power.”