But how President Macron and the Philippe Cabinet respond to that risk is crucial to hard-won liberties and rights not just in France, but across the rest of the continent. Will they respond fearfully, paying lip-service to human rights and the rule of law while normalizing exceptional powers that have led to abuses? Or will they respond with courage by ending emergency measures, restoring rights and liberties, and empowering the judiciary in the tough work it faces prosecuting terrorism cases?
Today, the government is due to present a draft counterterrorism law to the Council of Ministers, along with legislation to extend the existing state of emergency, already in effect for a year and a half,until November. The Council of State has examined this new draft law and delivered its opinion, not yet officially published, giving the government a green light.
A leaked draft version of that law published on June 8 in Le Monde, has already set alarm bells ringing within domestic civil society; the government’s proposal would end the state of emergency in name only, and would just move many of the exceptional powers into the normal administrative or criminal codes.
Rather than rely on a regular criminal justice system with effective procedural safeguards to prosecute people fairly for crimes they have committed, the draft law risks creating a parallel and impoverished system where administrative measures are routinely used as a preemptive proxy for punishment.
Given reported concessions expressed by Interior Minister Gérard Collomb on an earlier draft version which appeared to sideline the judiciary entirely, it is crucial that the new draft bill does not reduce the role of a judge (in this instance a Judge of Liberty and Detention, JLD) to a mere rubberstamp.
The first question to ask is whether France even needs a new counterterrorism law. The country has some of the continent’s most expansive laws to deal with terrorism. The government’s own webpage on the fight against terrorism noted, as of last month, that it had “completed its legal arsenal and put in place an unprecedented reinforcement of its means in the police, justice, army and intelligence services.”
Now, consider the new proposed powers in the leaked 7 June text. The leaked early draft contains vaguely worded proposals that would empower Prefects to establish “perimeters of protection”, to which entry is limited. No judicial authorization is required nor is there a clear requirement to show evidence of an imminent threat. The law would also allow a Prefect to order the closure of a mosque or other place of worship without a court order if “the ideas and theories disseminated there, or the activities which take place there, give rise to discrimination, to hatred, to violence or to the commission of acts of terrorism in France or abroad, or make an apology for such acts.” People who fail to comply with such an order could be prosecuted. In its June 15 opinion, the Council of State strongly recommended limiting these vague grounds.
It would make more routine the practice of limiting the freedom of movement of people deemed a threat to national security under “assigned residence orders”, limiting them to one town [commune], subjecting them to electronic monitoring, and prohibiting them from contacting other named individuals. Once subject to such an order, the “assignee” can appeal the obligations to an administrative court, which then has two months to rule on the case after a hearing. Expanded powers to search homes and businesses and seize computers and data– although, unlike the other planned powers, these require prior approval from a judge (JLD) – are also part of the legislative package.
The state of emergency already grants powers to assign residence and conduct searches without judicial warrant but these have led to well documented abuses. And a French commission of inquiry concluded last July that it had only “limited impact” on improving security.
The political calculus is simple. It is easy to maintain the state of emergency or continue it through other means. It gives an appearance of strength and safety. By contrast, it is more challenging and takes significant courage and leadership to exit a state of emergency and wean the state off exceptional powers.
Yet, that kind of leadership is precisely what is required, and the new Macron government, bolstered by a comfortable majority in the National Assembly, will never have a better opportunity to show that leadership. This means more than just paying lip service to liberties.
The fresh start under a new Presidency with a newly composed legislature also provides an opportunity to improve coordination and resources for law enforcement. The Defence and National Security Council, which reports directly to President Macron, announced the creation at its June 7 meeting of a new taskforce, the CNCT, to ensure better national coordination of counterterrorism operations with the former chief of domestic intelligence at its helm. This is a welcome step.
At this stage, it seems fanciful politically speaking to imagine that anyone can put the brakes on the extension of the state of emergency until November by the National Assembly. But legislators need to ask tough questions about the necessity of the new proposed law. They should be able to rely on published assessments by the new counterterrorism taskforce and give a greater role to the Defender of Rights’ assessments of the human rights impact of these measures. Sunset clauses should be a part of any new terrorism legislation and they should demand regular reporting on its costs, benefits and operations to Parliament. And to protect the rule of law and French values, the fullest possible judicial safeguards should be restored to the exercise of all security powers.
There is a narrow opportunity to return France to a state in which the rule of law and human rights are held in the highest regard. But that will take courage across the board.