Liberté, Égalité, Fraternité … Sécurité

Within a few hours of the terrorist attacks on Paris which left 130 dead and some 350 injured, President François Hollande declared a nationwide state of emergency in accordance with Public Law 55-385. As we noted previously, this declaration marked only the second time that a nationwide state of emergency was declared in France since the end of World War II.

The state of emergency, which went into effect at midnight on November 14, grants broad police powers to the French government and to the prefectures. In accordance with the law of 1955, these powers — granted for up to 12 days — include the power to impose curfews and traffic bans, to control public movements, to prohibit assembly and public gatherings, to conduct warrantless searches and house arrests (day or night), and to close theaters and other meeting places.

Pursuant to the declaration of a state of emergency, in the first five days after the terrorist attacks, the French police and military conducted 793 raids — most notably a house raid in the Paris suburb of Saint-Denis that led to the killing of the person believed to have orchestrated the attacks, Abdelhamid Abaaoud. The government also detained 90 individuals and placed 164 under house arrest; charged 124 individuals with offenses; and seized 174 different weapons, including 18 described as “military-style firearms,” 84 rifles, and 68 handguns (a notable fact, given France’s stringent firearms laws).

Less than a week after the attacks, the French Parliament approved the extension of the state of emergency for an additional period of three months. They did so by wide margins and with little debate and discussion (the lower house approved the extension by a 551-6 margin on November 19 and the French Senate voted to approve the extension on November 20). Beyond just extending the timeframe of the state of emergency, French lawmakers also amended the underlying 1955 law, expanding the scope of the government’s emergency powers to allow for house arrests with a lower level of suspicion, as well as various powers to search computer data and to dissolve groups that participate in or incite “serious violations of public order.”

As we discuss in Law in Times of Crisis, the extension of the declared state of emergency reflects several common trends, including the rush to legislate in the aftermath of atrocity. Immediately after terrorist attacks, governments often argue that if new offenses are added to the criminal code and the scope of existing offenses are broadened — and if the arsenal of law enforcement agencies is enhanced by giving them more sweeping powers — the country will be more secure and better able to face future threats. The compulsion to respond quickly frequently results in rushed legislation, often without much debate and sometimes forgoing normal legislative procedures. Fear and the political need for speedy responses also raises the risk of temporary legislation becoming permanent and entrenched, which in turn can result in long-term harms to fundamental civil liberties and human rights as the rushed modifications become the “new normal.”

Furthermore, in the immediate wake of tragedy, it may be more politically acceptable to confer broad emergency powers on the government when the perceived threats come from “others” who are well-defined and clearly separable from more powerful parts of the community. The clearer the distinction between “us” and “them” and the greater the threat “they” pose to “us,” the greater in scope the powers assumed by government and tolerated by the public become. In contemporary France the “us”/“them” phenomenon is a complicated proposition as it directly effects the rights and duties of citizens, rather than enemies conveniently located in a territory outside the state. “Home-grown” terrorism and radicalization continue to pose challenges for meaningfully advancing a pluralistic application of democracy in tandem with security, liberty, and equality.

While accounting for the danger of overreach, one ignores the ongoing threat posed by the terrorists at her own peril. French Prime Minister Manuel Valls has warned that there is a risk of the terrorists using chemical or biological weapons. Concurrently, terrorism alert levels have gone up to the maximum in other countries such as Belgium, where Brussels remains locked down for a fifth day. Concrete threats have also been made, according to Italian authorities, against St. Peter’s Basilica as well as additional targets in Rome and Milan.

It is thus not entirely surprising that the law extending the current state of emergency also amended the underlying 1955 law in significant ways, expanding the scope of governmental powers to deal with the crisis. According to the newly adopted amendments, the police may order warrantless house arrests of individuals when there are “serious reasons to think their behavior is a threat to security or public order.” The new amendments also allow the police to download information from computers found during searches, as well as to block websites and social media accounts that incite or condone terrorism. In addition, the government is authorized to dissolve groups that participate in or incite “serious violations of public order.” It should be noted, however, that the new amendments also contained two important limitations on governmental powers: They abolish the power that government had under the original law to “control the press” and to engage in broad censorship, and they prohibit the police from carrying out warrantless searches in the homes or offices of lawmakers, lawyers, and journalists.

In addition to the counterterrorism measures already mentioned, President Hollande has been touting the possibility of a constitutional amendment, introducing a new category of emergency regime — a “state of security” — into French law. The French president has also suggested additional measures to combat terrorism that would include stripping French dual nationals of citizenship if convicted of terrorism and the establishment of de-radicalization centers.

France is not alone in trying to legislate its way to greater security in a moment of crisis. The Belgian Prime Minister has similarly argued for ankle bracelets for people on terrorist watch lists, the immediate and automatic jailing of fighters returning from Syria, and extending the period of detention of terrorism suspects from 24 to 72 hours. We will follow this post with a review of all measures being undertaken at a European level to address the transnational aspects of regulating terrorism, and the concerted European efforts being advanced to that end. 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).

Oren Gross

Irving Younger Professor of Law and Director of the Institute for International Legal & Security Studies at the University of Minnesota Law School