The French Senate voted 229 to 106 earlier this month to approve a controversial new anti-terrorism bill, titled the “Draft Law to Strengthen Internal Security and the Fight Against Terrorism” (or in French: Projet de loi renforçant la sécurité intérieure et la lutte contre le terrorisme). In October, the National Assembly will take up the bill, which would enshrine into ordinary law several restrictions on civil liberties currently in place under France’s state of emergency.

French President Emmanuel Macron has vowed to end the state of emergency, but has indicated that he is likely to sign the new anti-terror bill in its place.

That would be a mistake. As drafted, the Senate-approved bill lacks sufficient safeguards to defend against abuses that have been prevalent under the current state of emergency, and risks normalizing the exercise of emergency measures. Despite enjoying support from an overwhelming majority of the French population, the government’s emergency measures have led to little demonstrable improvement in public safety.

Moreover, they raise serious human rights concerns, and are applied in a discriminatory manner against Muslims. The discriminatory application of the powers granted by the state of emergency has undermined France’s long-term security by exacerbating existing social divisions and feeding into the root causes of a dangerous cycle of violence

The State of Emergency

France has been rocked by a series of terror attacks over the past two and a half years. The first major attack took place in January 2015 when two gunmen stormed the offices of Charlie Hebdo, the satirical newspaper, and killed 12 people. Two days later, a gunman held several people hostage at a kosher supermarket and killed 4 people. Then, a series of suicide bombs and mass shootings shook the city of Paris on the night of November 13, 2015. With suspects still at large, the French government declared a state of emergency, the first since 1961, which has since been extended six times.

With recent attacks perpetrated by citizens of France and other European countries believed to have traveled Syria and Yemen, the French government is, reasonably, concerned with the return to its soil of fighters trained by ISIS and other jihadi groups. Though estimates vary, credible reporting indicates that between 900 and 1,700 French citizens have likely left the country to fight in Syria, Iraq, and elsewhere in the Middle East.

France’s emergency law grants extraordinary powers to the government, and includes many provisions that sidestep prior judicial approval. Some of these powers include: searches of homes and other places without prior judicial authorization, including night raids; placing individuals on restrictive “assigned residence” orders limiting where they can live and travel, and requiring that they check in at police stations up to three times a day; temporarily closing public spaces, including mosques; and banning public demonstrations.

To date, the emergency measures have yielded very few indictments for terrorism-related offenses, which has led the French Parliamentary Commission responsible for overseeing the state of emergency to express doubts over its effectiveness. In a December 2016 report, the Commission characterized the measures’ contribution to the anti-terrorism prosecutor’s office as “modest.”

In January 2016, following the emergency law’s first extension, five U.N. special rapporteurs urged the French government not to extend the state of emergency, arguing that the measures were not aligned with the principles of necessity and proportionality.

Five additional extensions and 18 months later, these fears were clearly justified. Of 670 judicial proceedings opened as a result of the emergency search measures before December 2016, only 61, or 9 percent, were for terrorism-related offenses. The remaining 609, or 91 percent, relate to non-terrorism related offenses – a serious indication that the measures are disproportionate. Moreover, compared to the 61 terrorism-related judicial proceedings from the emergency measures, 169 terrorism-related judicial proceedings were opened during the same period using regular criminal procedures—indicating that France’s ordinary legal framework continues to work for preventing and prosecuting terrorism.

In the lead-up to the most recent extension, the French government claimed that it had thwarted seven terror plots so far in 2017. However, the government has made no indication or provided any evidence to suggest that emergency powers were essential to these actions, or to related investigations.

As reflected in debates in the United States following the terrorist attacks of September 11, 2001, some argue that stopping even one attack justifies extreme measures. Yet legal systems are premised on countering this impulse. The principles of necessity and proportionality restrain state action for very good reason, and prohibit overbroad responses that run roughshod over civil and political rights. As America’s recent experiment with torture taught us, such responses to the threat of terrorism are ultimately counterproductive. Notwithstanding France’s justified concern with the return of foreign fighters, experts have warned that overbroad reactions to this complex problem risk negative collateral consequences.

Moreover, vague and overly permissive counterterrorism laws and policies run the risk of being misapplied at the margins, a state of affairs relevant to France’s emergency measures. Human rights groups like Human Rights Watch and Amnesty International have documented significant abuses related to the state of emergency, including dehumanizing police raids, targeting of the Muslim community, residence orders severely impacting free movement and the ability of individuals to go to work, and interference with the right to free assembly (see here, here, and here).

A Cycle of Discrimination and Violence

The discriminatory application of France’s emergency powers contribute to a dangerous cycle of alienation, which in turn likely contributes to France’s terrorism problem. As reporting by human rights groups shows, the majority of those whose homes have been searched or those who have been placed under house arrest are Muslims and persons of North African descent. Mosques and halal restaurants have also been targeted for discriminatory searches.

Members of France’s Muslim community, unsurprisingly, often claim that they are subject to government overreach and feel rejected, targeted, and treated like second-class citizens. This disenfranchisement creates opportunities that terrorists can exploit for recruitment.

While attitudes of intolerance have become more taboo in France since 1990, bigotry today is often cloaked in the language of security and lacïté (secularism). Narratives conflating Islam and refugees with terrorism have seeped into public discourse. State-sanctioned discrimination and profiling in the name of countering terrorism reinforces this trend.

While France is less permissive of religious symbols in public than the United States (for instance, a 2004 law, which was affirmed by the European Court of Human Rights, banned religious symbols in public schools), no other religious communities have been singled out in the same way. In the summer of 2016, mayors across France banned “burkinis” (full body swimsuits), claiming that the swimwear did not respect the principle of secularism and “enslaved” women. While the country’s Constitutional Court ultimately rejected the bans, it quickly became evident that the issue in question was less about gender equality than French identity.

In an illustrative example, the far right then-presidential candidate Marine Le Pen wrote that the burkini debate implicated “the soul of France.” The bathing suit bans, premised on a politicized interpretation of secularism that demands conformity, reinforced the view that Muslim values are inherently in conflict with French values, and in the process contributed to an exclusive notion of French identity.

Such associations and attitudes of discrimination likely fuel hate crimes against Muslims. In France, there were 226 anti-Muslim incidents in 2013; 133 in 2014; 429 in 2015; and 182 in 2016. The dramatic increase in 2015 appears to coincide with the multiple high-profile terror attacks. Monthly data show noticeable spikes in January and November, the months of the Charlie Hebdo and Paris attacks. Such discrimination, exclusion, and violence contribute to an “us-versus-them” narrative that can feed into extremist propaganda and contribute to the radicalization of small numbers of individuals within alienated groups, thus feeding a violent cycle.

The Proposed Law: A Perpetual Emergency

The new draft law would make permanent several of France’s most controversial emergency measures, without incorporating sufficient safeguards to prevent abuse. Provisions in the proposed law maintain vaguely worded thresholds with little requirement of imminence or likelihood of threat, which could be used to authorize measures against persons or places without a sufficient nexus to potential criminal activity. The law would thus magnify the potential for racial, ethnic, and religious profiling.

Several human rights organizations and community groups in France share these concerns. Défenseur des droits, the country’s independent administrative authority established by law in 2011 to investigate human rights abuses and fight discrimination, spoke out against the law’s potential harm to civil liberties and social cohesion. France’s National Advisory Commission on Human Rights said that the law could dilute ordinary law. In early July, 12 human rights watchdog organizations, including the Collective Against Islamophobia in France (CCIF), the League for Human Rights (LDH), Amnesty International, and Human Rights Watch, released a statement opposing both the sixth extension of the state of emergency and the draft anti-terror law. The Council of Europe’s Commissioner for Human Rights has also called on French legislators to ensure that the bill falls in line with European human rights law.

Under the proposed law:

  • Prefects (local government representatives) can create designated security zones (Article 1) in places or events where there is a risk of an act of terrorism because of the nature of the event or the extent of its attendance. In these designated zones, police are given broad authority to stop and search persons and vehicles. This measure does not require prior judicial approval.
  • Prefects may temporarily close (for up to six months) places of worship where statements are made or activities take place that provoke acts of terrorism in France or abroad, incite violence, or justify such acts. (Article 2). This provision does not require prior judicial authorization, although the bill specifies the right to appeal to the administrative court, and delays closure until the court decides. (It is important to note that experts find that closing mosques does not provide a simple solution to the complex problem of radicalization. Doing so does, however, stigmatizes and punishes an entire religious community, rather than those individuals engaging in the promotion of extremism.)
  • Prefects may authorize individual monitoring measures (limiting a person’s geographic movement and requiring check-ins) where there are serious reasons to believe a person poses a grave threat to security and public order; who are in a “habitual relationship” with persons or organizations that incite, facilitate, or participate in acts of terrorism; or who support theories inciting or endorsing terrorism (Article 3). This replaces the “assigned residence orders” from the emergency law.

The proposed law reduces check-ins at police stations from three times per day as stipulated in the emergency measures to one. Additionally, the proposed law specifies that individual monitoring measures should enable the individual to pursue family and professional life, though it does not require prior judicial approval (only notification to a public prosecutor, who in general do not retain the independence and impartiality of judges).

  • Finally, the proposed law continues to allow for searches where there are serious reasons to believe a place is frequented by a person whose behavior constitutes a serious threat to public security; is in a “habitual relationship” with a person or organization inciting facilitating, or participating in acts of terrorism; or endorses theories inciting terrorism (Article 4). Unlike searches under the state of emergency, the proposed law requires prior approval by a “juge des libertés et de la detention” (liberty and custody judge).

Moving Forward

Unless further extended, France’s state of emergency expires on November 1. Given the high level of public support for the existing emergency measures, and the political fear of exposing oneself to accusations of being “soft” on terror, rejecting the proposed law will require acts of political courage. To move their country forward, French politicians would need to shift France’s national conversation toward the idea that heavy-handed security measures might provide comfort, but don’t provide lasting security. This outcome is, regrettably, unlikely.

At a minimum, as members of the French National Assembly debate the Draft Law to Strengthen Internal Security and the Fight Against Terrorism, they should incorporate more precise threshold language, ensure that all of the law’s provisions are as narrowly tailored as possible, and require judicial approval. A more measured approach would move France away from a state of perpetual emergency, and reduce societal tensions that enable violence.

The French government should address the harm inflicted during the state of emergency, which means confronting discrimination within law enforcement and society at large.

In the decade and a half since 9/11, the United States has learned, often through missteps and course corrections, how vital it is to our security and our democracy to confront violent extremism with strategies founded in respect for human rights. To be sure, our approach has been far from perfect, and it is possible to argue convincingly that emergency rule has already been normalized in the United States through the slow creep of consolidated executive power.

We remain in constant danger of returning to paradigms that would sacrifice civil liberties for assumed security. This problem is particularly acute in the context of the current administration, as President Donald Trump has stoked Islamophobia through narratives and policies that conflate Muslims and refugees with terrorists. But our shared experiences with France teach us that pitting rights as a tradeoff with security does more harm than good in the long term.

Surely, these steps are not a comprehensive solution to address the alienation and root causes driving much of France’s recent political violence. That said, President Macron and the National Assembly have an opportunity to chart a new course this fall. They should seize the moment.

Image: Getty/Jeff J Mitchell