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Published by The Lawfare Institute
In the aftermath of the Paris terror attacks on Charlie Hebdo and a kosher grocery, Western European security forces unleashed a dizzying storm of arrests and prosecutions and announced "exceptional" new measures to combat terrorism. In the space of just a few days, dozens of suspects were detained in Belgium, France and Germany, many of whom were questioned for days without charges or the presence of an attorney. Only Tuesday, a full four days after the initial arrests, did the first announcements of forthcoming criminal charges begin to emerge from the French authorities. Few of these recent detentions would likely have been possible in the United States, where, as a general matter, probable cause and habeas standards severely restrict police’s ability to seize and interrogate suspects. (Of course, some of these regimes were tested in the years following 9/11. Padilla and the material witness statute come to mind, for example.) Still, to Americans accustomed to more iron-clad constitutional protections, this sudden storm of aggressive police activity likely seems a violation of basic civil liberties. But in many European countries, the entire apparatus of the criminal justice system is structured to allow police and prosecutors far more robust investigative and detention tools. The European reaction to the Paris attacks thus demonstrates just how contextual American norms of security and liberty norms actually are. Even more, they highlight the irony in the intense global focus directed at United States’ national security programs—a focus that often ignores countries where protections on civil liberties are markedly weaker. In France, for instance, the level of suspicion necessary for arrests is significantly lower than the American “probable cause” standard. Whereas “probable cause” requires “reasonably trustworthy information… sufficient to warrant a prudent man in believing” that the suspect has committed a crime, French law simply requires that there arresting officers have “plausible reasons to suspect” an arrestee. French arrests are thus often made for the explicit purpose of conducting the interrogations necessary to actually gather enough evidence to file charges. Unlike in the US where charges must usually be filed within a 24-hr period, French suspects can be held for multiple days at the discretion of police and a special detention magistrate (juge des libertés et de la détention). And in terrorism cases, this period of pre-charge detention and interrogation can last for four days - a tactic that was apparently used against the four terror suspects charged (and five more released) earlier today. For years, French detention powers were even stronger, allowing police to interrogate suspects extensively while limiting contact with attorneys to brief preliminary consultations. But in 2010, the French Supreme Court issued a series of rulings beefing up arrestees' rights during this period of preliminary police detention (garde a vue). Now, although access to lawyer can still theoretically be denied in the most exceptional circumstances, such tactics are are exceedingly rare and subject to the strictest judicial review. Still, even after this initial period of pre-charge detention a detainee—especially one seized on terrorism charges—can still find himself subjected to extended confinement. The police turn over the fruits of their initial investigation to an investigative judge (juge d’instruction) who enjoys broad powers to issue warrants and conduct hearings. In France, all cases of terrorism are referred to a half dozen special terrorism judges who sit in Paris. While they gather evidence, detainees once again find themselves before the detention judges, who can authorize pre-trial detention for up to four years. Although Paris’ terrorism magistrates investigate cases of Corsican and Basque terror as well, it is often the Islamists - usually poorer, less well-integrated, and lacking significant organizational support - who face the strictest detention regimes. Even beyond the narrow issue of detention, the rapidity and substance of the French legal response to the attacks has put on display another somewhat surprising feature of the French criminal justice system: centralized political control. Much has already been written about the disparity between European and American approaches to legal prohibitions on hate speech and defenses of terrorism. But this discussion has largely ignored the centrally directed, sudden shift in the enforcement of these laws. In France, within the space of a week, directives from the justice and interior ministries have led to sweeping changes in the severity of punishment for speech-related offenses. Gregoire Etrillard, a Paris-based criminal lawyer who has done extensive work on terrorism cases, told me that the number of cases associated with laws banning “apology for terrorism” had skyrocketed in the past two weeks, and that offenses that previously might have been punished with fines are now being adjudicated with unprecedented strictness. Already last week, a drunk driver in Valenciennes, who just two weeks ago could have expected a minor penalty, found himself sentenced to four years in prison after telling police he hoped they would be terrorism’s next victims. And in Toulouse, three young men were sentenced ten-month jail terms for applauding the Paris attacks. The sudden, almost draconian crackdown, has inspired complaints among some defenders of civil liberties, but it has also sent a swift and reassuring message to French communities that feel they are being attacked from within. At the same, the swiftness and effectiveness of this sort of penal policy change probably raises eyebrows in the American legal community. That prosecutors are formally answerable to a government ministry is likely only mildly strange to Americans; our own Attorney General enjoys considerable authority in setting policy for federal prosecutors. But that the French justice ministry’s directive was sent to judges as well as police, and that it appears to be influencing sentencing decisions, is likely far more surprising to Americans accustomed to a judiciary that cabins itself off from political priorities of the executive. For some scholars, the French stomach for sterner security policies, especially with regard to detention, represents a model for American action. In 2009, Dan Stigall (currently a trial attorney in DOJ’s office of International Affairs) published a book calling for legislation to “narrow the gap” by beefing up American detention powers. (This “gap” is, of course, precisely the opposite of what many might expect from a common narrative that portrays the American national security apparatus as far less friendly to civil liberties that our European allies.) But as scholars including Brookings’ own Jeremy Shapiro have argued, potential reformers ought to resist the urge to find “silver bullet in the experience of other countries,” and hesitate before abandoning the norms that enjoy political consensus and have worked well in the past. The coming period, as French society digests and reflects on the current storm of counterterrorism measures, offers an ideal opportunity for Americans to observe and decide which—if any—of these French tools ought to be incorporated into the American arsenal.
The issues—and Lawfare coverage—that kept our editors up at night in 2023.
I find myself sympathetic to both Carrie and Steve on FISA oversight.
So report the New York Times and the Washington Post.