J. Holler

Liberté and the Emergency State


ISSUE 71 | THE FRENCH ISSUE | JAN 2017

On January 22, 2017, those who lean left in France will head to the polls for the first round of the primary process to choose a replacement for the sitting President François Hollande in preparation for the upcoming election to be held in April and May. Facing the worst approval ratings of any president of the Fifth Republic, Hollande renounced on December 1 any attempt to follow his first term with a second—effectively fulfilling his campaign promise of forgoing a reelection campaign were he to fail to reduce unemployment by the end of his term. That commitment, engrained in the minds of voters, had only bolstered the downward spiral of his favorability ratings to a meager 4%.

Yet the explanation for a president’s approval rating cannot simply be reduced to employment figures. One factor stands out when looking at his peaks in favorability. Apart from his inauguration, he was never more popular than during the month of November 2015, which was marked by the worst attacks on French soil since World War II. At the time, 50% of French respondents had favorable views of him, a spike of 22% rivaled only by a previous surge of 20% after the Charlie Hebdo attacks in January of the same year, which brought his approval rating up to 40%. The nation was traumatized, and Hollande, through speeches combining somber and muscular tones, succeeded in channeling the public’s emotions into words of action.

In such situations, the reassuring effect that an announcement of measures can have (even when the measures aren’t very useful) is no less important than the measures themselves. According to François Saint-Bonnet in his book L’Etat d’exception, legislation of “exception” is often done in anticipation of an announcement or proclamation, aiming to make the population feel a certain cohesion at an exceptional moment in time. But those announcements can only reach that goal if they are consistent with the values of the audience.

Indeed, France saw its fundamental values under attack in the killings of January and November 2015. In a speech immediately after the attacks at the offices of Charlie Hebdo, a long-celebrated satirical magazine, President François Hollande designated the acts as an attack on the freedom of expression, stressing that “nobody can act against the spirit of the Republic.” Notions of laïcité (what could be described as France’s more assertive version of secularism) also came to the fore in public debates. After all, the killings were only the fulfillment of the death threats the magazine’s staff had long received in response to its cartoons depicting Muhammed. Following the massacres at the Bataclan concert hall and the surrounding establishments, many pointed to the national value of “vivre-ensemble”—meaning the French, and particularly Parisian, capacity to get along with one another regardless of ethnicity, religion, or background—as the target of the terrorists. These were not the first tragedies linked to transnational extremism, and were certainly not the last. More than with previous attacks, however, trauma caused the public to turn to soul-searching.

But the government responses to the attacks have also provoked discussion on just what those values mean in an era of blurred lines between internal and external security threats.

Invoking these same values, the government embraced measures aiming to protect citizens from further attacks and to bring those who seek to commit them to justice. Some of these efforts have stirred debate over the tradeoffs between security and freedoms. Others have been criticized or withdrawn as having merely symbolic value and failing to possess any potential for dissuading terrorists, discouraging radicalization or making security tools more efficient.

Singling out dual citizens

In response to the November attacks, the government submitted a package of constitutional reforms to the Parliament. Included was an article stripping individuals who participate in a terrorist act of their French citizenship. The controversy over this move may not be obvious at first glance. The measure already existed in the civil code. 85% of the population initially supported it. To some on the center-right, who were glad to find a point of disagreement with the ruling Socialist Party, the lack of dissuasive power was obvious. How valuable could French citizenship be to individuals for whom death in acts of violence against France represents the ultimate reward?

Bound by a law originating from France’s signature to the 1954 Convention Relating to the Status of Stateless Persons, the government was obligated to write the proposal to apply only to dual citizens, thereby avoiding the creation of “stateless persons.” But it soon became clear not only that the law would discriminate against citizens who happened to hold nationality in another country, but that it would likely discriminate against an already stigmatized part of the population. According to the French National Institute for Demographic Studies, around 5% of the population of mainland France, approximately 3.3 million people, are dual citizens. 90% of them are immigrants or descended from immigrants, and two-thirds are of North African origin.

In targeting the Bataclan and the surrounding cafés, the killers on November 13th unmistakably chose a neighborhood that had long been a melting pot of cultures, regarded as an example to follow in other parts of the country. Patrick Bloche, a Socialist member of the National Assembly (the French equivalent of the US House of Representatives) whose constituency comprises the areas in which both the January and November attacks occurred, has supported much of the legislation proposed by the government since the beginning 2015. Despite his support for François Hollande, he could not bring himself to vote for a bill that would inscribe in the Constitution a measure that he saw as inevitably resulting in discrimination. The measure would apply especially to a large portion of those living in the very part of Paris he was elected to serve.

“I didn’t consider it to be an essential element in the fight against terrorism. On the contrary, it undermined the fundamental values of France and was especially discriminatory toward dual citizens. It’s also a completely useless measure because nobody can imagine a terrorist being intimidated by the risk of losing his citizenship as punishment for committing an attack,” says Mr. Bloche. “The debate over the stripping of one’s nationality was an element of division that I judged useless especially at a moment when the most important thing was to ensure national unity.”

As François Heisbourg, special advisor at the French Foundation for Strategic Research, points out, those of North African descent already suffer from discrimination in terms of housing and employment. Yet, France has long resisted implementing programs of affirmative action, for which the French term could be literally translated to “positive discrimination.” So, what would be more insulting than opting for the equivalent of “negative discrimination” by effectively dividing people into two categories—those who can lose their citizenship and those who cannot?

Expressing dismay at the bill, Christiane Taubira, the Minister of Justice, resigned. The government eventually withdrew the proposal, but the damage was done. Political discourse had now brought attention to foreigners as the root of the problem. And the Left, which until that point had mostly seen internal fighting restricted to matters of economic policy, suddenly found itself further divided by the sort of identity politics championed by the extreme right.

Surveillance in France: Fishing with a Harpoon, not a Net

Prevention of jihadist terrorism requires advanced intelligence gathering. Although Prime Minister Manuel Valls argued that the surveillance bill he proposed in March 2015 (Loi relative au renseignement du 24 juillet 2015) was not a “French Patriot Act,” the Digital Council, an advisory body to the government, warned that it would lead to the kind of excesses characteristic of the US surveillance state that were revealed by Edward Snowden. While the independent body the law creates provides more power to the executive in authorizing surveillance, its method of tracking electronic communication linked to terrorist activity is theoretically more selective than the mass collection set in motion by the United States. It requires telecommunications companies to integrate algorithms designed to detect terrorism-linked content and communications, referred to by critics as “black boxes,” into their networks. The approach has been likened to fishing with a harpoon rather than with a net, and is alleged to be more efficient and less invasive of everyday citizens’ privacy.

But questions remain as to how the law may impact citizens’ right to privacy, especially that of journalists. When engaging in research online, would journalists feel obligated to exclude certain searches or sources for fear of being tracked by government authorities?

To Patrick Bloche, the question of privacy and the use of personal data by future governments, which could well be more repressive than his own party, is important. He supported an amendment to remove the article that would require use of these algorithms. After the amendment failed, he abstained from the bill’s final vote.

A Perpetual State of Emergency?

Passed in 1955 during the Algerian War, the law used by Hollande to declare a state of emergency immediately after the November 13th attacks was designed for an era of decolonization, with a clearly designated enemy and territory. At the time, its measures were meant to allow the state to cordon off parts of the the Aurès region and certain neighborhoods of Algiers, with the intention of retaking control from the National Liberation Front and eventually returning the territory to a situation of legal normality. The emergency law was later applied to the uprisings in New Caledonia and more recently to the suburban riots of 2005.

In its current use, the law hands large powers to what are termed administrative judges—under the authority of the executive branch—to keep individuals under house arrest for the duration of the state of emergency and to hold citizens in custody for an extended period solely on the basis of their exhibition of suspicious behavior. However, few of the measures have proven useful in bringing suspected terrorists to justice. Of the 221 legal procedures against individuals suspected of participating in a terrorist organizations between November 2015 and November 2016, only 19 resulted from raids carried out under the newly empowered administrative mechanism. Over the same period, there were 4,000 such raids.

Bernard Cazeneuve, former Interior Minister and current Prime Minister, insists that the threat of terrorism is real and imminent. The horrible Bastille Day tragedy in Nice is an example, as are the dozens of plots the security services have succeeded in foiling. But as imminent as the threat may be, most experts agree that the defeat of jihadist terrorism is a matter of decades, not months.

The National Consultative Commission on Human Rights declared unanimously against both the state of emergency and the stripping of citizenship on January 15, 2016; the state of emergency was renewed for the fifth time on December 19, 2016 and is set to continue until July 15, 2017.

What’s Left for the Left?

Some real improvements in the ability of the government to combat the threat of terrorism consist of overhauls in agency structures and increases in resources and personnel. But if one of the major shortcomings of the state of emergency is its inability to tackle the transnational nature of jihadist terrorism, discussions of alternative, more international solutions—such as cooperation with other European countries in the struggle against terrorism, sharing pertinent information and allowing for a common European police force and defense policy— have made little progress.

In addition to preparing for his own reelection campaign this spring, Patrick Bloche is the campaign director for presidential candidate Vincent Peillon, one of the latest politicians to declare his candidacy for the upcoming primaries. A member of the European Parliament and former Minister of Education under Hollande, Peillon will likely face an uphill battle: he will have to overcoming his association with the current President and reintroduce himself to the French electorate after two years away from Paris as an MEP.

Although other issues, like the country’s labor market and its stagnant economy, will also drive voter behavior, Bloche expects security to be a major focus, as well as the questions of secularism and identity that have become intertwined in the debate. The Right has already accused to the Left of being soft on terrorism, while the extreme right has used secularism to mask its Islamophobia. For Bloche, the Left needs to assert itself on promoting a more inclusive notion of secularism and to reach out to EU institutions for help in the fight against terrorism. Bloche points out that Vincent Peillon is the only candidate in the primaries to present a positive vision of the EU. His approach to security and terrorism would incorporate more cooperation with the EU authorities and other Member States.

It seems reasonable that a transnational threat should require a transnational solution. The Passenger Name Record, a system for collecting basic information on flight passengers entering the Schengen Zone (a group of mostly EU Member States between which borders for people and capital have been effectively eliminated) was finally agreed to by the EU institutions on December 2nd, 2015, after several years of foot-dragging. But EU Member States remain the sole masters of their internal security, and continue to resist collaborating or cooperating with each other. In driving the member states to privilege unilateral actions, beginning with the reestablishment of national border checks, the migrant crises and the terrorist threat have only reinforced a lack of coordination, to the point of putting forms of integration that the Union has fought hard to win, like the Schengen Zone, at risk.