Will France's State of Emergency Become Permanent?

A proposed counterterrorism law has some human-rights groups concerned.

French President Emmanuel Macron at the Élysée Palace in Paris, France on July 6, 2017.
French President Emmanuel Macron at the Élysée Palace in Paris, France on July 6, 2017. (Gonzalo Fuentes / Reuters)

Last Thursday, France’s parliament voted to extend the country’s national state of emergency for the sixth time, leaving in place what has been its longest uninterrupted state of emergency since the Algerian War of the 1960s. In a parliamentary address last Monday, French President Emmanuel Macron pledged to “restore the liberties of the French” by lifting the order and replacing it with a new, more permanent counterterrorism law. The legislation, which is expected to be taken up by both houses of parliament in the coming months, will “explicitly target terrorists to the exclusion of all other Frenchmen,” Macron told lawmakers in a rare address at the Palace of Versailles. The measure, he added, will include “full and permanent respect for [France’s] constitutional requirements and … traditions of freedom.”

The proposal, which the government says aims to “strengthen internal security and the fight against terrorism,” makes permanent a series of new powers, several of which are currently covered under the state of emergency, first enacted in the aftermath of the November 2015 terrorist attacks in Paris. These measures include giving the government the power to designate public spaces as secure zones (thereby allowing authorities to prohibit large gatherings that are likely to pose a security risk), temporarily shutter places of worship suspected of promoting extremism, and conduct individual surveillance using assigned residence orders, or house arrests.

But some observers say the law would threaten the very freedoms it purports to protect. They argue that it enshrines certain provisions that have previously only been permissible under a state of emergency. The worry, as French daily newspaper Le Monde put it after reviewing a draft of the bill submitted for review to the Conseil d’État, France’s highest administrative court, is that “temporary and exceptional measures, which limit citizens’ freedoms over time to fight imminent danger, risk becoming the law of the land.”

Kartik Raj, a researcher at Human Rights Watch who focuses on Western Europe, told me some of these “exceptional measures” included in the bill’s draft, such as the power to conduct searches without a warrant, are being framed as less serious than they are. “There’s a degree of sanitization around the language, which gives you a sense of how they are trying to normalize emergency practices,” Raj said. “Something that used to be a search without a warrant is cast as a visit.”

That is not how the government has billed it, however. Macron’s government has said the law aims to end the state of emergency while also giving authorities the tools to combat and prevent acts of terrorism going forward. With more than a dozen terrorism incidents in France since the 2015 attacks in Paris, national security has remained a central issue, dominating the country’s recent presidential election. As a candidate, Macron vowed to curb the risk of terrorism through preventative measures, such as bolstering the police force with 10,000 new officers and strengthening the country’s intelligence apparatus. Last month, he also announced the creation of a task force to oversee all counterterrorism efforts. The 20-person agency, which will be led by former intelligence official Pierre Bousquet de Florian, will be tasked with reviewing and centralizing the intelligence gathered by the Interior, Defense, and Justice departments.

A coordinated counterterrorism task force, Raj told me, would be good for France. But measures that increase executive power are a problem for the human-rights community. One of their main criticisms is the degree of authority the proposed legislation gives to the country’s prefects, the local representatives appointed by France’s interior ministry. Under the proposed legislation, many powers that previously required approval by a judge would instead fall under the purview of the prefect.

Nicolas Krameyer, the program director for individual and public freedoms at Amnesty International France, told me that though the authority to conduct searches will still require some judicial approval, such oversight would be largely undermined. “The grounds for which these measures could be taken [is] very vague and very broad, so that any person whose behavior could be considered by the Ministry of Interior—by the executive branch—to be a threat for public safety and security” could be subject to them, Krameyer said. “We see from the state of emergency that ... the basis for these kinds of measures [is] very weak and wouldn’t [meet] the burden of proof.”

Speaking before lawmakers on Thursday, French Interior Minister Gérard Collomb defended the legislation, noting that “freedom and security are not mutually exclusive. When you strengthen security, you don’t take away civil liberties, you preserve them, and sometimes you enhance them.” But some authorities in France have raised doubts over the durability of these liberties under the new law. Jacques Toubon, the head of Défenseur des droits, the country’s independent constitutional authority, called the legislation a “poison pill” that would threaten national cohesion by stigmatizing the country’s Muslim population (since the inception of the state of emergency, France has shuttered more than a dozen mosques and prayer centers). Christine Lazerges, the chairwoman of France’s National Advisory Commission on Human Rights (CNCDH), warned the law could “permanently contaminate the common law” with measures that were meant to be temporary.

François Heisbourg, a special adviser at the Paris-based Foundation for Strategic Research, told me the whole point of the legislation is “to provide a device that will allow the new government to get rid of the state of emergency without incurring too high a political price for doing so,” adding that the pressure to keep it in place isn’t coming from security specialists. “The problem with getting rid of the state of emergency is that ... the population loves the state of emergency. The price to be paid would be political.”

“People feel safe when this kind of measure is taken,” Rim-Sarah Alouane, a doctoral candidate and researcher in public law and civil liberties at the University Toulouse-Capitole, told me. “But by institutionalizing the state of emergency, not only are you putting civil liberties at stake, you are not addressing the root of terrorism at all. It gives you the illusion of of security, but that’s it.”

What intelligence officials do want, Heisbourg told me, are extended powers to intercept electronic communication—the kind that allow them to keep up with the evolution of technology. “When [ISIS] uses Telegram or other encryption facilities, you obviously have an issue,” he said. “That to me is much more important than most of the other stuff mentioned in the draft bill.”

Though it is unclear exactly when the legislation will reach France’s National Assembly, the more-powerful lower house, or how much it will be revised before it does, there is little doubt that it will win legislative support. Macron’s République En Marche (LREM) party, with its centrist ally Democratic Movement (MoDem), boasts an overwhelming majority in parliament, and there has been little effort by opposition parties to challenge the legislation.

Though France isn’t the only country to be hit by ISIS-affiliated or inspired attacks (the U.K. and Belgium have remained at high-threat levels following attacks in recent months), it is the only one in western Europe to have established and maintained a state of emergency in response. Raj said this new counterterrorism law could change that, noting that several European countries have already considered implementing or have recently adopted counterterrorism measures to enhance executive powers while restricting judicial controls.

“It’s extremely worrying for a country that is known for human rights,” Alouane said. “It speaks volumes about the culture of fear we have.”