Published by The Lawfare Institute
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The splashiest construction project in Paris finally opens for business tomorrow. No, it’s not a new entrance to the Louvre or sure-to-be-iconic tower. It’s a new courtroom made for the long-awaited start to the trial for 20 defendants accused of facilitating the Nov. 13, 2015, “three hours of terror” in Paris that killed 130 people.
Wednesday’s debut follows a cascade of delays, many of which stemmed from snags in the construction itself. It turns out that it’s a bit tricky to burrow a modern courtroom inside the walls of a 14th-century room first built during the reign of Philip IV. Wheelbarrows dragged in construction material to the salle de pas perdus, and workers reinforced the aging floor with fresh slabs of marble in order to prep the room for its new temporary addition. The new 550-person-capacity courtroom lives within the bowels of the Palais de Justice, which had no preexisting space fit to accommodate the throng of people slated to participate or to handle the security concerns associated with putting 20 people on trial for helping adherents of a death cult gun down cafe-goers and hold an entire rock concert hostage.
As French editors reliably note in headlines about the case, it’s an unusual trial—maybe even the “trial of the century.” Three hundred victims will testify, nearly nine months will be reserved for the proceedings to unfold, and criminal responsibility for the deadliest European terror attack since 2004 will thus be litigated. It’s the biggest criminal trial in modern French history. And it will all take place against the backdrop of a pandemic that in France, like in the United States, has not yet abated.
The French journalist Mathieu Delahousse has characterized the trial as an occasion for the “entire world” to watch the French justice system operate. But relatively few in the anglophone world have bothered to look so far. Foreign policy coverage still rightly lingers on Afghanistan. And certain procedural and contextual factors create a significant barrier to understanding how the trial will unfold. French criminal procedure doesn’t share an enormous amount in common with its U.S. counterpart, and the biggest-name defendant has already been tried in Belgium.
There’s another problem: Six of the 20 defendants won’t make it to court on account of their being dead, missing or stuck in a Turkish prison.
All that said, it’s a huge event worth paying attention to for several reasons, not the least of which being its logistical triumph relative to U.S. attempts at criminal redress for massive terror attacks. It may have taken France a few years to get its act together and build a new courtroom, but the Sept. 11 trials still haven’t happened, and while France has built a new courtroom, it hasn’t tried to build an entire new court system.
The headline defendant is Salah Abdeslam, a native Belgian who faces charges for murder and attempted murder, among other crimes. He’s the lone surviving member of the 10-man operational team that filtered into different corners of Paris to bomb, shoot at, and otherwise terrorize those out-and-about on a November Friday evening. He allegedly drove the three Stade de France suicide bombers to their destination, where they detonated explosive belts on the periphery of the stadium, interrupting an international soccer match between France and Germany. Abdeslam and Parisian investigators have diverging theories about why he didn’t join the three others. He says he voluntarily chose not to set off his belt; French authorities say a technical snag prevented him from setting off a fourth explosion. In any event, Abdeslam ditched his belt in a trash can just south of Paris’s city limits and left it at the mercy of the French police who would get their hands on it after locating the belt using Abdelsam’s cell phone geolocation data. Montrouge, where he left the belt, sits due south of Paris’s city center; Stade de France lies roughly due north. Abdeslam wandered in and around Paris in the hours after his colleagues killed 130 people, calling friends who arrived around 9 a.m. to give him a ride back to Brussels. The getaway car got stopped for examination at the France-Belgium border thanks to Abdeslam’s previous criminal record, but news of his involvement in the attack hadn’t yet been widely disseminated, and police ultimately waved the car along. He managed to evade capture for four months, aided by a Belgian law that prohibits nighttime police raids and a network of sympathetic neighbors. Belgian police ultimately secured custody of Abdeslam after a raid that took place a mere one-minute walk from where he went in the hours after the ill-fated stop at the border.
Thanks to his activities while a fugitive, Abdeslam’s current legal woes extend far beyond this trial. He’s already earned a 20-year prison sentence in Belgium for his role in a Mar. 15, 2016, shootout in Molenbeek, during which he fired on police and managed to secure an extra few days of freedom. The Brussels Criminal Court convicted him of attempted murder in a terrorist context. Abdeslam refused to participate in proceedings, barely speaking at all, and mostly just to affirm his vow to remain silent: “I am only accountable to God.” At least according to news reports from March 2020, he’s been no more talkative during the course of the Parisian investigation into the attack. The 2018 Belgian trial stayed focused on the shootout itself, leaving it to Parisian prosecutors to piece together the larger story of how the group of 10 organized the assault on the city.
In addition to his day-of role, Abdeslam allegedly helped to manage on-the-ground logistics for a highly organized cell based in Brussels with component parts in France and in the then-caliphate in Syria. He—along with others in the group who acquired fake ID cards thanks to the scavenging of Khalid El Bakraoui, another member of the same cell—allegedly rented cars and hideouts for fellow Islamic State members.
Investigators began to unravel the connections underlying the cell thanks in part to a discovery in March 2016: a laptop in a Brussels trash can containing a maze of communications among various affiliates of the group. Minutes before taking a taxi to the Brussels airport to blow himself up in a separate suicide attack, Ibrahim El Bakraoui, another Belgian Islamic State terrorist connected with Abdeslam, threw his laptop in a trash can near a hideout for the group. Police got there first, and thanks to the computer, began piecing together the inner workings of the group.
In a superb piece for Le Nouvel Observateur, three French journalists—Delahousse, Violette Lazard and Vincent Monnier—extensively catalog what investigators found on the laptop and beyond, concluding that “six years after [the Paris attacks], even if some shadows remain, investigators have succeeded, at the end of an abnormally long investigation, in reconstituting the origins of the attacks with precision.” Investigators have determined that the plot was “hatched during long months, between Belgium, France, multiple other European countries, and the Iraq-Syria region by a terror cell composed of thirty members, operational heads, kamikazes, logisticians, and unskilled workers ... often united by family links or long standing friendships.” Many Islamic State terror attacks come at the hands of purported adherents with little operational know-how and tenuous connections to the group. Not here. According to the Nouvel Observateur piece, investigators determined that it was a “very organized terror group” and the Paris attack, as police suspected from the beginning, was coordinated from Syria. In all, the investigation turned up a cell striking in its depth, organization and devastation: two major attacks, a sprawling network of 30 affiliates and allegedly proximate connections to those in the upper echelon of Islamic State leadership.
The investigation found that a significant cohort of the group made trips to Iraq and Syria in the months and years preceding the attacks. In a fashion typical of the group, for example, Abdeslam’s brother Brahim traveled to Syria for 10 days in January 2015, attempting to throw police off the scent by booking a room at a hotel in Istanbul. In Syria, he participated in weapons training north of Raqqa, before traveling back to Belgium without hassle. (Delahousse, Lazard and Monnier note that the day after his return, he went to a concert for “his favorite rapper, Lacrim, in a nightclub in Brussels, a glass of alcohol in his hand). Belgian police interviewed him in mid-February after a run-in for drug offenses and a discovery that he was carrying a booklet about parental consent for jihad. He denied going to Syria, saying his trip was to relax in Turkey. Brahim Abdeslam detonated his explosive belt in Paris 10 months later.
The Parisian investigation adds to a deeply unflattering picture of the aptitude of the Belgian security services: A large, connected group of committed Belgian jihadists—some of whom produced Islamic State propaganda videos in which they bragged about travel plans to the caliphate—yo-yoed back and forth between Brussels and Syria, furnishing unimaginative excuses to justify what looks like a highly pretextual interest in three-star hotels in Istanbul.
The 13 other defendants in French custody didn’t do the shooting on Nov. 13 but helped to keep the machine of the cell humming. Some of the 13 others had roles just outside the 10-person operational core. Mohammed Abrini, who shared Brahim Abdeslam’s penchant for Syrian travel, allegedly rode along to Paris with the other attackers in what prosecutors refer to as the “death convoy” of a Renault Clio and two other cars. Others had more peripheral roles. Farid Kharkhach, for example, allegedly made fake papers for the attackers at the request of Khalid El Barkaoui. And six others will stand trial for their roles in shepherding the fleeing Salah Abdeslam out of sight of the authorities.
The most important defendant who won’t be making an appearance at trial is Oussama Atar, or “Abu Ahmad.” Atar had a long history with Jihadist movements. He once decamped to Fallujah and ultimately spent time in Abu Ghraib, where he took advantage of the networking opportunities available at the U.S. prison and met a detainee who would later become Abu Bakar al-Baghdadi’s right-hand man. A U.S. military spokesperson told Belgian journalist Guy Van Vlierden that Atar “admitted that he had entered Iraq illegally [in the mid-2000s] to wage war against Americans.” Belgium intervened to repatriate him in 2012 and gave him his passport back a year after that; two months later, he headed to Syria where he rose through the ranks of the Islamic State, propelled by his Abu Ghraib relationships. In prosecutors’ telling, Atar headed the “overseas operations” vertical within central Islamic State and allegedly played a major role in recruiting the Nov. 13 attackers. Van Vlierden explains that “the case against Atar is built upon the premise that he is the Abu Ahmad named by several people involved as a leading organizer behind the Paris attacks.” Investigators cite interviews with other Islamic State members, along with material found on the trash can laptop in order to support this theory. A coalition airstrike is believed to have killed Atar in Syria in November 2017, precluding his presence at Wednesday’s trial. But French courts will still try defendants who are presumed dead in Syria or Iraq, yet whose mortal status the government hasn’t managed to formally confirm.
France has made something of a habit of conducting such “ghost trials.” Islamic State fighters presumed dead will “stand” trial alongside alleged co-conspirators who are very much still alive. These trials can look particularly silly when the number of dead defendants dwarfs the number of living ones; the docket for a January 2020 trial contained 19 dead defendants but only four living colleagues to fill out the courtroom. That ratio inverts in this case. Only four of the 20 defendants died on battlefields in Iraq and Syria, including Atar and Fabien Clain, “the voice of the Paris attacks,” who narrated the propaganda video the Islamic State used to claim credit for the Paris attack. Some Islamic State members told police that Clain had a more central role in the planning of the attack, but as Van Vlierden notes, he will be prosecuted only as an accomplice, not as a leader.
The ghost trial factor layers on top of other aspects of French criminal procedure that make the trial and its procedural history a bit more difficult to track for U.S. audiences. A primer on French criminal defense work from the law firm Debevoise & Plimpton puts it bluntly: “Almost every aspect of a French criminal defense case differs from what is familiar to U.S. defense lawyers.” French criminal trials operate according to an inquisitional system, wherein formal investigative and prosecutorial duties and judging duties belong to the judiciary. For serious or complicated cases, formal investigative duties transfer to investigating magistrates (juges d’instruction).
France handles terrorism cases differently from prosecutions for other crimes. In July 2019, France began funneling terror prosecutions to its newly created national terrorism prosecutor’s office (le Parquet national antiterroriste, or PNAT). It’s one of three national-level “parquets”—France has had a national financial crimes prosecutor’s office since 2014 and a nascent national prosecutor’s office for online hate speech since the beginning of 2021. After a string of attacks by a Hezbollah-connected group in the 1980s, the Paris prosecutor’s office gained a formal subdivision in 1986 dedicated to handling terror cases on a national level. But the Paris office’s caseload doubled starting in 2012, a spike that the journalist Nicolas Bastuck attributes in large part to Islamic State returnees from Iraq and Syria. The Ministry of Justice announced in December 2017 that it would create the PNAT—a “veritable strike force within the judiciary”—to take control of the growing portfolio. The law that concretized the PNAT fits in with a broader constellation of sometimes-controversial post-2015 moves designed to give police and prosecutors better tools to run terror cases. The PNAT inherited 670 cases at various stages in the criminal process. In this case, nine juges d’instruction from the PNAT pieced together a 542-volume case file about the winding road to the Nov. 13 attacks.
The trial will unfold before five judges tasked with making the decision about each defendant’s culpability. Terror prosecutions that go before the court (la cour d’assises) dedicated to handling the equivalent of felony charges dispense with lay juries and put the decision in the hands of professional judges (la cour d’assises spécialement composée); the divergent procedure aims to mitigate the security concerns of tasking normal people with judging terror cases. A trio of trial attorneys—two of whom are named Nicolas—will make the case for the prosecution. It’s the first time three trial attorneys will run a case together, but the three know each other well—and it is an unusual trial. They’ll have police protection for the duration of the trial.
The most striking feature of the trial will come not from the judges or the prosecution, but from the victims. France allows victims of the crimes to join in as parties civiles, where they retain representation and participate in the proceedings. The abundance of parties civiles in this case necessitated the adventurous construction project in the Palais de Justice. Eighteen hundred victims have been recognized as parties civiles and 300 different lawyers represent these victims. A remote connection capability will allow parties civiles who want to stay at home to nonetheless follow the trial on a secure line. Five weeks of the trial will be dedicated to hearing testimony from the procession of victims, whose first-hand accounts will add pathos to the 542 volumes of call logs and geolocation data. Parties civiles aren’t unique to this trial, but their outsized role here recalls the prosecution strategies at certain trials of atrocities, where criminal proceedings have showcased victims’ experiences.
A lot remains up in the air. It’s unclear, for example, how many parties civiles will end up coming to the trial. But thornier questions also linger. Namely, is Oussama Atar really Abu Ahmad? The journalist Van Vlierden poured over the investigative files and notes that it’s far from clear whether Atar actually embodied the nom de guerre associated with a central role in planning the attack.
That said, the trial is an impressive feat on the part of the French justice system.
Through an accident of chronology, the start of the trial coincides almost perfectly with the 20th anniversary of Sept. 11. Pretrial motions resumed again today for the 9/11 trial in a 53-person courtroom on a U.S. military base in Cuba, and in this sense, the architectural vision for the new courtroom in Paris offers some broader symbolism. Rather than situating proceedings in an entirely novel space, in a zone governed by a different criminal code, the French government erected a courtroom fit to accommodate the gargantuan proceedings within a building that embodies the (more or less) centuries-long endurance of French criminal law. It’s a weird courtroom special-engineered for a weird trial, but one that locates its moral authority and procedural spine in a history that long predates it.