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[Commentary]

State of Emergency

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"France's efforts to expand and enshrine the emergency laws in the constitution have created a sense that the legal framework of the French Republic, and all that it stands for, is under threat."

The lower house of France’s parliament voted overwhelmingly yesterday to extend the state of emergency that has been in effect since the terrorist attacks in Paris last November. The emergency laws, which gave the government broad powers to track and detain suspected terrorists, had already been extended once before, and were due to expire at the end of this month. Yesterday’s 212–31 vote in the National Assembly, following the Senate’s approval last week, means that the laws will remain in effect until at least the end of May.

For months now it has been clear that the state of emergency answered two pressing needs faced by François Hollande, the French president. On the one hand, the legal regime gave the government what prime minister Manuel Valls has described as “modern and effective tools to fight the terrorist threat.” In a speech to the National Assembly earlier this month, Valls claimed that the government’s new powers had allowed it to stop at least one planned attack. On the other hand, however, the laws offered Hollande’s government—which was visibly panicked after a year that began with the terror of the Charlie Hebdo killings and ended with the massacres at the Stade de France, the Bataclan Theater, and five restaurants in Paris’s trendy northeast quarter—a drastic means to try to reassure the public, and itself, that it was still in control.

In the aftermath of the Paris attacks, Hollande’s administration decided to place under indefinite house arrest between 350 and 400 people who had been designated Fiche S, a category used by the French intelligence services to indicate potential threats to state security. Most of the perpetrators of the November massacres had been Fiche S, as had the Charlie Hebdo killers before them. After failing to prevent both groups from staging highly coordinated spectacles of violence, Hollande’s government used the state of emergency to impose house arrests without a warrant or a trial. A person subject to house arrest is required to check in at the local police station three times a day, and is bound by a curfew, usually between 8 p.m. and 6 a.m. If the terms of the arrest order are violated, an individual can end up in jail.

When I visited Paris in December, I spoke with Xavier Nogueras, an attorney who represents about a dozen people, including the manager of a halal restaurant and the head of a Muslim aid organization, who have been subject to house arrest. In his office on a posh boulevard in the Latin Quarter, near the Sorbonne, Nogueras showed me the two-page document that the Ministry of the Interior issued to one of his clients. The document informed its recipient that he was henceforth under house arrest. Nogueras read aloud the explanation for the arrest order, which was just a few lines long:

Radicalized individual, whose conduct arouses concern in his professional environment. The indicated person is the manager of a subcontracting company working on behalf of a logistics firm, for which he is making deliveries of hazardous materials to several dozen sensitive sites, including French military sites.

Nogueras told me that the government was not required to seek judicial authorization for its arrest orders in advance. And while an injunction can be contested in court after the fact—according to the New York Times, more than a hundred people have appealed their arrests—the government’s refusal to disclose the evidence it had on his clients, as well as the sources of its information, makes it difficult to mount a defense. What’s more, the circumstances under which someone is designated Fiche S are often arbitrary. It could be enough, Nogueras suggested, for a person to attend a mosque where “two or three years ago, there was a guy who knows a guy who knows a guy who knows a guy who was a cousin of Amedy Coulibaly or the Kouachi brothers”—the assailants in the January attacks—to be designated Fiche S. The government keeps the information on file, just in case, but in many instances, he said, “there’s no evidence, nothing.”

“In reality, these individuals are not being accused of anything. They are under suspicion,” Nogueras said. “Because if there is already something to accuse you of, they’re not going to just let you be. They come and get you and throw you in prison. There are legal procedures for that,” he said. The people who had been subject to the emergency house-arrest orders, meanwhile, are mostly people for whom the authorities “don’t have enough to initiate a case.”

At the same time that the French Parliament was debating yesterday’s extension of the state of emergency, it was also considering a tranche of proposed changes to the country’s constitution. One controversial change would allow France to strip the citizenship of a French-born citizen who is convicted of a terrorist crime. Others would allow for longer periods of emergency law, and would lower the legal hurdles for shutting down public spaces and conducting searches of homes and private property. The proposals have caused a number of experts to express concern that elements of an authoritarian police state were threatening the rule of law. Jacques Toubon, who leads an independent government institution charged with defending human rights, told Le Monde that the constitutional-reform projects were “making the exception the rule.

Two weeks ago, Human Rights Watch issued an alarming report that detailed testimonies from eighteen people whose homes had been raided or who had been subject to under house arrest. (The government has carried out more than 3,000 raids since the state of emergency began, most without a warrant; French officials say that they have led to five terrorism-related criminal proceedings.) The report called the government’s behavior “abusive and discriminatory.”

At the end of January, Halim Abdelmalek, a thirty-five-year-old Parisian, became the first person to successfully challenge his arrest order. (Since then, at least forty of the arrest orders have been lifted.) Abdelmalek wrote an op-ed in Le Monde explaining that he had been flagged by intelligence after being photographed, unwittingly, near the home of a Charlie Hebdo journalist. He was there, he said, because his mother lived nearby. “I am simply one of the majority of Muslims who are at peace with their religion and their country. Seeing myself reproached for belonging to a ‘radical Islamist movement’ was even more unbearable than the loss of liberty,” Abdelmalek wrote. “I don’t hold a grudge against anyone, but I’m afraid, because this decision could have made me reexamine my convictions…. I’m afraid for these thousands of young people who are stigmatized by these decisions. I’m afraid for the other people under house arrest. The state must take care not to create enemies within its own camp.”

Many more people who have been affected by the government’s clampdown don’t want to speak publicly in any way. “They don’t want to talk about it because they’re not radicals,” Nogueras told me. “The neighborhood bakery learns that you’re under house arrest because you’re an Islamic radical, your life changes,” he said. “It creates a real tension.” A spokesperson for the Collective Against Islamophobia in France told Le Monde recently that among some Muslims who’d been affected by the measures, “a feeling of retaliation” had been building.

As Scott Sayare wrote in “The Ultimate Terrorist Factory” (Report, January 2016), the French state has been trying to prevent terrorism by using provisions of questionable efficacy for years. With the heightened security apparatus after the November attacks, however, those provisions risk becoming far more widespread. Taken together, the efforts to expand and enshrine the emergency laws in the constitution have created a sense that the legal framework of the French Republic, and all that it stands for, is under threat. “Two hundred and fifty years we’ve been fighting,” Nogueras said, “and now we’re ready to wipe it all out.”

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