PARIS — There's nothing worse for the legal system than these moments of intense unanimity, when the wave of emotion sweeping over France risks burying all reason. The penal code, however, is difficult to move in reverse. The exceptional measures taken in times of crisis are forever enshrined. Backtracking is near impossible.
Little by little, exceptional procedures supplant common law. After the killings at Charlie Hebdo and Kosher market, do we need a French Patriot Act? The police lobby — it's only fair — has started to ask for special powers to erase its failures and increase the tools at its disposal.
The French cabinet held a Monday crisis meeting on domestic security, but the idea itself of launching a European "war on terrorism" is a worrying one. It became enshrined in U.S. law seven weeks after the 9/11 attacks, following a Congressional resolution.
The decree sanctioned "the notion of 'illegal enemy combatant,'" explains Mireille Delmas-Marty, professor at the Collège de France. "These are people who can benefit neither from the guarantees and rights of the penal code, because they're enemies, nor from those of war prisoners, because they're illegal fighters," she explains.
The role of the judge is marginalized: This is war. With the Patriot Act, military commissions have become jurisdictions, and despite the resistance of the Supreme Court, they openly violate international law. Prisoners at Guantánamo have been held and tortured in Cuba at the sole will of the American intelligence services, outside all guarantees granted by U.S. law.
What's more, these "extraordinary" measures have cast their shadow over Europe, where certain countries have agreed to host clandestine "interrogation" centers. In the name of anti-terrorism, the NSA has woven a spy network that reaches as far as German Chancellor Angela Merkel's cellphone. The Patriot Act, which was intended to last only four years, has been extended twice, currently through 2015.
French Interior Minister Bernard Cazeneuve and U.S. Attorney General Eric Holder in Paris on Jan. 12 — Photo: Zheng Bin/Xinhua/ZUMA
In France, the government passed a law in November that plans to prevent suspected jihadists from leaving the country and created a new crime, that of "individual terrorist undertaking." Not all decrees have been signed yet, but it’s already clear that the new legislation in no way prevents people from reaching Syria and would do nothing to prevent the kind of crimes witnessed in Paris last week. What was already the second anti-terrorist law of President François Hollande's five-year term was the 15th such bill since 1986.
Power to check power
Prime Minister Manuel Valls was quick to observe that it "will without a doubt be necessary to take new measures," adding, however, that "we're not going to construct legislation in haste." But the pressure to go further is mounting.
The former head of French interior intelligence services, Bernard Squarcini, said in an interview that French authorities had monitored one of the Kouachi brothers, following a tip from U.S. intelligence. "But it was fruitless. And that's when the French legal framework 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 is not active."
He characterizes it as a loophole in the system. "Intelligence services cannot work with the provided toolbox," he says. "That's OK if you have to repair an old Peugeot 403, but if you want to repair a BMW, you might need a new toolbox."
It's a strong image, but it conceals something essential. The CNCIS is a small organization with cumbersome procedure. But most of the anti-terrorism protocol is based on a 2006 law that circumvents the agency. Reinforced in 2013, the legislation gives the police extended power under the supervision of the prime minister and doesn't limit itself to terrorism. Also under its rubric are organized crime and certain financial-related felonies, which allows it to conduct mass eavesdropping and real-time geolocation.
And yet, "We're talking about terrorism here," Squarcini insists. "We need to raise the standard of the debate," he says, adding that a new "legal framework" is needed and that the country has lost "two-and-a-half years" (since the defeat of Nicolas Sarkozy and his own eviction as head of the interior intelligence agency).
But one anti-terrorist magistrate disagrees. "There are no real loopholes," he told Le Monde. "We have all the tools we need."
Still, the legislation undeniably needs some updating. A new intelligence bill is in the pipeline and should be voted on before the end of Hollande's mandate. It can go two ways. It can either be a French Patriot Act, or it can grant extra powers to the fight against terrorism but keep the changes far more moderate.
Until last week, there was talk of transforming the National Commission for the Control of Security Interceptions into a body that would oversee phone interceptions, data collection and geolocation, with swifter procedures but with the kind of independent, third-party oversight establishied in 1991 law.
As the legendary French lawyer and philosopher Montesquieu once said: To prevent any abuse of power, "It is necessary from the very nature of things that power should be a check to power."