Theme: France has managed to fight against terrorism without imposing laws of exception but rather by adapting its institutions to the changes in terrorist practices.
Summary: France, to its misfortune, encountered Islamic terrorism relatively early. In 1986 it was the first country to experience a new form of Islamic terrorism. The principal condition for the success of the judicial option is to ensure an adequate interface between intelligence and judicial officers. This is facilitated by the French tradition of centralisation and by the French legal tradition which gives the juge d’instruction ample powers to gather evidence. The key to French efficiency does not lie solely in the inherent flexibility of the criminal system but also in the consistent efforts made to provide the police forces and the courts with the criminal legislation needed to face the problem. Globalisation induces a sort of homothetic relation between forms of terrorism and the institutions that fight it: if large bodies were once needed to face the challenge of interstate confrontation, counter-terrorism bodies now require flattened flow charts, shortened (perhaps even un-hierarchic) chains of command and networking operations that mimic those of terrorist organizations. This homothetic relation between new forms of international terrorism and the public agencies entrusted with punishing them explains the increased importance of intelligence services.
Analysis: France is a country that does not currently have recourse to emergency legislation (perhaps because its entire penal system would appear to be emergency legislation to American minds). This is not because France is in some way the ‘home of human rights’. It suffices to examine French attitudes during the war in Algeria to be convinced of that. France has previously declared states of emergency and practiced administrative detention in proportions that impose humility today. The Conseil d’Etat has accepted the legality of such detention centres. One member of this prestigious institution has admitted, with comprehension or resignation, that: ‘the attitude of the Council has remained constant in the face of legal texts that breach fundamental principles such as the presumption of innocence and the immovability of judges. Even in 1966, the arguments presented by M. Galmot, an otherwise liberal counsel for the government, concerning imprisonment based on a presidential decision under Article 16 [emergency powers provision of the Constitution], claimed that texts relating to administrative detention are just as exorbitant as the 1793 ‘law of suspects’, and that the only difference with contemporary lawmakers is to avoid the rough frankness of their great ancestors, who stated that ‘the judge must incline before our will’, even when, in this case, the lawmaker is none other than the President of the Republic’.[1] In Algeria, torture was practiced in incredible proportions, as a veritable policy in the fight against urban revolutionary war, and the highest French courts remained silent in the face of wartime necessity. Some were even voluntarily involved.[2]
In less than thirty years,[3] France has moved from a ‘extra-judicial measures’ model to a model of accommodation.[4] What explains this change? Why did it adopt this attitude in 1958 and not in 1986? In 1986, France was the first country to experience a new form of Islamic terrorism (earlier forms were not yet ‘de-territorialised’, relating to the Lebanon,[5] Iran[6] and Algeria[7]). At that time, the Cold War was not yet over and the political right had just returned to power.
France (to its misfortune) encountered Islamic terrorism relatively early. ‘From all misfortune comes some good’ according to a French proverb: the State was forced to sharpen its sword against terrorism before other European countries. France had the ‘chance’ to confront early on a form of terrorism that, as it realised, was different in nature from internal political and territorial (Corsican and Basque) terrorism. Not being directly confronted by this new threat, the United States did not measure its importance. Before September 11, indeed, the Americans saw attacks by the Algerian GIA as a consequence of French colonialism that the French would have to face alone. They were far more concerned by the drug problem, for instance. Rather than a French ‘model’ therefore, we may speak of a French ‘advantage’.
The French judicial option
‘Our response is judicial and not military’, declared the Head of the Direction de la Surveillance du Territoire (DST) recently.[8] This is an indication of his view of the very nature of terrorism, which undoubtedly has external ramifications, but is a phenomenon of a predominantly judicial nature. Seeing terrorism as an internal security problem that can be dealt with in this manner is probably the main difference compared with the American approach. For Jeremy Shapiro[9] this attitude basically comes down to making reason out of necessity. Indeed, fighting terrorism abroad is very expensive (probably beyond French means) and dangerous as well.
This choice results from the conclusions of the analysis of a number of cases involving France: de-territorialised terrorism seems to be born of the encounter between an offer and a demand. An ideological offer emanating from radical Islamism, but also a demand on behalf of a group of youths craving to come to blows with a society they consider unjust. The Head of the DST explains that ‘the French jihadist is less cultivated, younger and more radicalised’,[10] concluding that the recruiting force is no more dangerous than the candidates, ie, young hotheads. This raises the spectre of individual terrorism, almost without any organization, as practised by Timothy McVeigh or the two girls who perpetrated an attack in Cairo in the spring of 2005.[11] The crime-generating element of desperation, the youth syndrome, is therefore essential. Declaring war on terrorism too early strengthens the organization rather than weakening it and increases its capacity to transform the demand for adventure and a solution to ill-being. By contrast, placing the emphasis on personalities at risk, by placing the organization and its hate speech in the background, diminishes its capacity.
Assimilating counter-terrorist action to a war also increases risk in a strict perspective of calculated interests, because it provides terrorists with additional recognition and publicity. The recourse to unlimited force feeds resentment and hatred against democracies. In this respect, the detention facility in Guantanamo has undoubtedly been counter-productive, by rallying individuals to the cause of our adversaries who identify with their Moslem brothers, apparently arrested and deported outside any legal framework. In others words, France has not adopted this contrary viewpoint based on a principled position, or moral considerations, but through political calculation. Ethics are merely pragmatism with a long-term horizon. Declaring war on terror too hastily is most likely to hand the first set to those one wishes to combat. The American concept of the war on terror thus appears not only to be out of place but also counter-productive, in the sense that it is not a war and even less a crusade. Such an approach increases the risks and gives an advantage to the enemy.
This passage from a supervisory to a judicial logic is possible in France because of the unity of its underlying concept of police as the ‘government of men and objects’.[12] The same persons can pass from an administrative rationale, the aim of which is to supervise human security and physical and moral wellbeing,[13] to an investigative rationale with a view to criminal prosecution. This perception of the underlying unity of the State’s role is crucial to understanding differing perceptions of insecurity on either side of the Atlantic.
An adequate interface between intelligence agencies and the judiciary
The principal condition for the success of the judicial option is to ensure that the interface between intelligence and justice, which requires adequate communication in both directions, provides a solid judicial relay for intelligence work and, in the opposite direction, ensures the appropriate analysis of information gleaned from judicial proceedings.
In France, communication between intelligence and judicial bodies is provided by structures such as the Unité de Coordination de Lutte Antiterroriste (UCLAT) and the 14th Division of the Paris prosecution service (Parquet). One of the strengths of the Direction de la Surveillance du Territoire (DST) is that it has jurisdiction in both the counterespionage and judicial spheres. Although it is important for each service to stay within its sphere of activity (Renseignements Généraux –RG– for domestic intelligence and Direction Générale pour la Sécurité Extérieure –DGSE– for international intelligence), the DST is the only service with a double intelligence and judicial mandate. This gives it a capacity to ensure continuity that has turned out to be a great advantage. The service thus provides an appropriate relay between judicial and intelligence work.
This is facilitated by the French tradition of centralisation. In this respect, American culture is diametrically opposed, mistrusting any concentration of power.[14] The Moussaoui case revealed the absence of any interface between the judicial and intelligence spheres: it was not possible to search his portable computer, which would have revealed information that might have prevented the September 11 attacks. The FBI did not have this right due to the restrictive case-law that may have been a reaction to previous abuses. France was in the lead because it became aware of the danger earlier and adopted a structure proportionate to the threat.
It is also essential for the intelligence services to make full use of judicial inquiries. This was not done by American detectives after the first attack on the WorldTradeCenter. The FBI conducted an exemplary inquiry but stopped there. No prospective analysis was conducted. This contrasts with the case of the Roubaix gang. The police was handed a banal case of bank robbery, but rapidly realised that there were elements in the file that had nothing to do with common criminality. Little by little, it became clear that Moslem immigrant networks and converted French nationals were involved, as well as foreign branches in Belgium, Canada and the United States. Contact was immediately made with the external intelligence services, leading to the only proceedings before a regular French Court of Assizes to date. The RG and the DST were able to react more rapidly because they had the means to bring together all the diverse elements of the puzzle, which is impossible for the judiciary or even the judicial police. Thus, it is also important to create an adequate synergy between the local and international spheres. The best starting point for serious intelligence is local because it provides proximate information.
This synergy is all the more difficult to acquire since the work of intelligence gathering and the search for evidence in legal proceedings differ greatly. It is not even possible to be good at both. Judicial proceedings and the penal code are too rigid. The essence of the judicial police service is to reason by type of offence or on a case-by-case basis, not to make long-term projections or deductions of a political nature. Successful communication will thus depend not only on teams working together, but also on both sides being able to understand the logic of the other service. For example, minor trafficking in credit cards and an arms cache would normally be treated as two separate criminal files. It is only by combining them that it is possible to understand the underlying logic, which does not appear on the face of a criminal file concentrating on evidence (interested in intention to the exclusion of motive), whereas the other approach concentrates on motives. Gravity is not appreciated in the same way. For example, the Chalabi case[15] does not appear to involve particularly serious offences, because its gravity lies in a threat of a more political nature. Account must be taken of the incessant balancing between the intelligence and judicial constructions surrounding a case (as in Chalabi), between hypothesis and proof and between understanding and repression, because the frontier between the two tends to change. Of course, the repressive process must have its own rules for the defence of freedoms, but the facts only take on their full sense when placed in a wider political context than the criminal file alone. The police must conduct the work of collecting evidence in the knowledge that it will be examined minutely during the trial; it is not possible to tender approximations in evidence and assume they will be taken at their word.
The judicial process deals with a completed act that sets the limits of the investigation; its objective is historical in that it attempts to recreate a scene that has already taken place. In the fight against terrorism, one must anticipate, imagine a fact that may take place. One must be able to imagine oneself in someone else’s shoes, adopt their personality. ‘A terrorist network requires interrogation, searching, people and documents: it cannot be treated like a simple criminal act, on the basis of a corpse and confessions’.
The central role of the judge
The judicial option will only work where the judicial system is capable of playing the central role required of it. A number of elements have proved to be decisive in this choice. The interface between intelligence and judicial logic has to be doubled by a strong synergy between detectives and magistrates. This explains the central role played by the juge d’instruction (investigating magistrate) and, to a lesser degree, by the counter-terrorist prosecutor. This synergy is a basic element of French judicial culture, which is characterized by a strong continuity between the initial police work and that of the magistrates.[16]
This centralization did not appear immediately, even if it is valued by French culture. Before 1986, on the basis of the classic criteria of criminal procedure, four judges were investigating attacks perpetrated by Georges Ibrahim Abdallah.[17] At the request of these magistrates, who were at a loss, French lawmakers decided to centralise all the cases in Paris. This led to the establishment of the 14th Division of the Paris prosecution service (Parquet).
It turned out that the personality of the specialized investigating magistrates, who have since taken on a high profile in the French media and even abroad, was a decisive factor in the success of a certain number of cases. Indeed, there is a danger of them becoming ‘media stars’.[18] This is in stark contrast with the prevailing concept in the United States of the judge as a generalist arbiter who knows nothing of the particular matter before the hearing begins. One of the secrets of the effectiveness of counter-terrorist action is the personal bond between the various actors, especially policemen and magistrates. Yet such personal bonds are very difficult to construct and even harder to institutionalise.
In addition to centralization in Paris, in the hands of a small number of magistrates, the second essential criterion is specialization. The specific profile of the counter-terrorist magistrate derives its effectiveness from being both a judge and in permanent contact with the police, thus accumulating great personal knowledge and experience in such matters. The judge may also receive information through informal discussions with the police.
Adaptation of the law rather than emergency laws
The key to the French ‘success’ does not lie solely in the adaptation of administrative, procedural and police mechanisms, but also in consistent efforts to provide the police forces and the courts with the criminal legislation needed to face the problem. This was achieved in France by a 1986 law that, inter alia, introduced the offence of association de malfaiteurs en relation avec une entreprise terroriste (criminal conspiracy in relation with a terrorist undertaking). This resulted from police shock after an attack at OrlyAirport on July 15, 1983.[19] The DST was aware that an Armenian extremist group, the ASALA, was preparing an attack, but it did not have the legal mechanisms necessary to arrest them before they went into action. The 1986 law made this possible thanks to the preventive incrimination of conspiracy.
The establishment of a Court of Assizes specialised in terrorist cases must be seen in the same light. As mentioned, the political left had disbanded the cour de sûreté de l’Etat (this State security court was too closely linked to the War in Algeria and the fight against the OAS, which was also a terrorist movement[20]). However, when another extreme left-wing terrorist movement, Action Directe, started threatening jurors the government was obliged to establish a special Court of Assizes in which the jury was replaced by a college of nine professional magistrates. This law did not raise any protest, perhaps due to the political context, but also because it was Robert Badinter, who enjoys great moral authority as the Minister who pushed through the legislative abolition of the death penalty in 1981, who also introduced the Bill to establish the special Court of Assizes.[21]
French lawmakers have thus been able to conserve the judicial treatment of terrorism through the regular adaptation of the law. They have reacted on a case-by-case basis to enrich their legislative arsenal with whatever provisions proved to be necessary. In this respect, they have shown the sort of pragmatism that is usually attributed to Common Law countries (whereas the latter have exhibited a certain rigidity in this area). They have not hesitated to introduce procedural techniques typical of American judicial culture when necessary, such as allowing offenders to ‘turn State’s evidence’ (le repenti), which is absolutely contrary to our culture and has actually created some concern.[22] In the same way, recognising that weakening borders make the distinction between what is national and international more difficult, French lawmakers authorised the judicial police to employ techniques that were previously limited to espionage. This is an ongoing process and further changes remain to be made. For example, the French Penal Code still refers to a ‘state of siege’,[23] despite the fact that this concept, which implies an armed invasion, is inappropriate for terrorist threats. Benjamin Shapiro[24] observes that these changes work in both directions, such that when there is a lower level of threat, judicial guarantees can be re-evaluated (he gives the example of the disbanding of the State security court in 1981 at a time when terrorism was not high on the political agenda).
Nevertheless, it would be wrong to believe that these measures are not a cause for concern among human rights organizations, which have protested against possible breaches of fundamental rights. The danger is real, but it is not sufficient to justify claims that we are in a state of emergency, as the measures in question introduce permanent derogations from common law procedure (length of police detention, length of pre-trial detention and composition of the trial court). Many writers have insisted on the fact that the implementation of these measures, especially the prosecution of a criminal conspiracy in relation with a terrorist undertaking, generally comes down to the court’s discretionary judgement. They also point out that control over the courts is weak. Although these fears are well founded, they are simply an aggravated example of trends that are present throughout the French penal system. It is thus more a question of degree than nature. The flexibility and personal latitude enjoyed by the courts are characteristics of French judicial culture in general.
Conclusions: Permanent adaptation is especially important in the fight against radical Islamic terrorism. The de-territorialised, particularly de-formalised, Islamic terrorist raises a challenge for institutions which are static by nature. They are static primarily because they are anchored in a specific territory and based on naturally weighty legislative foundations, but also by reason of their specific internal logic, which acts as a considerable brake and creates obstacles to communication with others. This explains the importance of fluidity between institutions in the rapidity of responses, circulation and implementation. Globalisation induces a sort of homothetic relation between forms of terrorism and the institutions that fight it: if large bodies were once needed to face the challenge of interstate confrontation, counter-terrorism bodies now need flattened flow charts, shortened (perhaps even un-hierarchic) chains of command and networking operations that copy those of terrorist organizations.
This homothetic relation between new forms of international terrorism and the bodies entrusted with their punishment explains the increased importance of intelligence services. Their modus operandi theoretically allows them to achieve the same ubiquity and anonymity as terrorists (although this remains to be shown in practice). It may even be possible to turn this proposition around and define terrorists as soldiers who ‘infiltrate’ their own civil society. Intelligence services take the de-formalisation of State action to its limits by working outside any legal framework. They are subject to a hierarchy and very strict control by the political authorities, yet beyond normal legality. Although this clearly involves suspension of the law, it still does not amount to a state of emergency. It is rather a paradigmatic example of the infra-law that extends the State’s international capacity. They provide a good example of de-territorialised action and distortion of the boundary between national and international spheres.
Police chiefs explain that ‘in 1980, as in 1990, the French intelligence services were able to identify the perpetrators because we are constantly impregnated by the specificity of the threat’.[25] Cultural impregnation is assisted, in France, by close proximity with Arab and Moslem culture due to its colonial past and the presence of the largest Arab community in the Western World, which allows cultural exchange. This does not seem to be the approach followed in the United States, which appears to be bound up in its own culture. This impregnation is based on human bonds that allow an understanding of reality that is not accessible through purely technical means. Technical mechanisms, which work on patterns, can only find what they are seeking, ie, whatever has been identified as dangerous behaviour. They are limited to past acts and the imagination of the user.
Imagination is needed in order to establish regular analysis of the level of threat. To track the transformation of terrorism, one must be capable of projecting oneself into the future with a different mentality, of putting oneself in the place of the terrorists, to anticipate their evolution; in sum, all this implies cultural openness to others. American culture is more technophile than French culture and also mistrusts individual influence, which it sees as an aristocratic vestige. It may be necessary to link the aptitude of French culture for human intelligence to the place that relations generally hold in French culture. The convincing force of the bond is exploited by intelligence agents. Beyond any analysis of the comparative advantage of the two strategies for collecting intelligence, note must also be made of the disparity in available means (technology is expensive) and the differences in cultural aptitude.
Antoine Garapon
Executive Secretary of Institut des Hautes Etudes sur la Justice (Paris)
[1] Jean Massot, ‘Le rôle du Conseil d’Etat’, La Guerre d’Algérie et les Français, Jean-Pierre Rioux (dir.), Fayard, Paris, 1990, p. 271.
[2] See, in this respect, Oren Gross, ‘Chaos and Rules: Should Responses to Violent Crises Always be Constitutionnal?’, Yale Law Journal, 112, March 2003, notes 94 and 95.
[3] I do not cover non-repressive French policies (including that of sanctuarising the country in return for peace).
[4] Oren Gross, art. cit.
[5] Ibrahim Abdallah case.
[6] Walid Gordji case.
[7] Boualem Ben Saïd case.
[8] Interview with Pierre de Bousquet in Le Monde, 25 May 2005.
[9] Benjamin Shapiro, Bénédicte Suzan, ‘The French Experience of Counter-terrorism’, Survival, vol. 45, n° 1, Spring 2003, p. 91.
[10] Le Monde, 25 May 2005.
[11] François Thuillier reaches the same conclusion: ‘Even if terrorism remains a scenarisation of violence, taking one’s distance allows a form of identitary respiration, allowing the group to find each other and join forces. If the organisation continues to offer its services, the generalised access to dangerous technology forces us to envisage the case of the single individual. Especially because the individual does not suffer the structural fragility of the network due to the need to communicate among members, which is where the intelligence services are waiting’.
[12] Paolo Napoli, Naissance de la police moderne. Pouvoir, normes, société, La Découverte, Paris, 2003, p. 11.
[13] Ibid, p. 12.
[14] See, in this respect, Robert Kagan, Adversarial Legalism, The American Way of Law, Harvard University Press, Cambridge, Mass., 2001.
[15] This was the first ‘maxi-trial’ of this kind in France.
[16] On this question, please refer to Antoine Garapon and Ioannis Papadopoulos, Juger en Amérique et en France, Odile Jacob, Paris, 2003.
[17] ‘La France et le terrorisme international. Les racines historiques et organisationnelles du savoir policier’, round table between Louis Caprioli and Jean-Pierre Pochon published by the Cahiers de la Sécurité intérieure, Reconstruire la sécurité après le 11 septembre, n° 55, p. 160.
[18] This ‘star system’, which affects the judicial system as a whole, and which is at the centre of the democracy of opinion, takes on a specific meaning in the context of terrorism. Indeed, the latter displaces ‘the battle ground towards images and symbols’, and democracies are tempted to respond on the same level by exploiting the resources of the judicial stage. ‘The specialisation of judges, prosecutors and the police in this sphere can reinforce a phenomenon that is already sufficiently subjected to its political context’ (François Thuillier, ‘La menace terroriste: essai de typologie’, Revue politique et parlementaire, n° 1028, 2004, p. 42), in other words, raising the odds on terrorism that feeds on media coverage.
[19] ‘La France et le terrorisme international…’, art. cit., p. 157.
[20] A group of soldiers unhappy with De Gaulle’s politics created the Organisation de l’Armée Secrète.
[21] Loi du 21 juillet 1982 (article 698-6 du Code de procédure pénale).
[22] Some legal professionals stood up against this change to French judicial culture.
[23] Article 414-1 of the French Penal Code.
[24] B. Shapiro and B. Suzan, art. cit., p. 90.
[25] ‘La France et le terrorisme international…’, art. cit, p. 150.