Liberté, Égalité, Emergency

On January 7, 2015 two gunmen entered the offices of the French satirical newspaper Charlie Hebdo in Paris. Armed with assault rifles and other weapons, they killed 12 people and injured 11 others.

On January 8, 2015, an accomplice of the Charlie Hebdo gunmen killed a police officer and four hostages before being killed by police. After the attacks, 10,500 heavily armed soldiers were positioned in front of churches, mosques, temples, courthouses, locations of historical and national import, tourist destinations, and public transportation systems around the country.

On February 3, 2015 a man wielding a knife wounded three soldiers guarding a Jewish community centre in Nice.

On June 26, 2015 a decapitated man was found in a factory outside Lyon in conjunction with a foiled attempt to blow up the building.

On August 22, 2015 a heavily armed gunman opened fire on a high-speed train traveling from Amsterdam to Paris, injuring two before being overpowered by three passengers.

On November 13, 2015 suicide bombers and gunmen orchestrated simultaneous attacks on a soccer stadium, several cafés and restaurants, and the Bataclan nightclub, killing 130 people and injuring 368. That night President François Hollande put in place a State of Emergency.

On November 20, 2015 the French Parliament voted by an overwhelming majority to prolong the State of Emergency for three months.

On January 7, 2016, the one-year anniversary of the Charlie Hebdo shooting, a man wielding a meat cleaver was shot and killed during an attempted attack on a Paris police station.

On February 16, 2016 Parliament voted for another extension of the State of Emergency.

On May 10, 2016, with the Euro Cup and Tour de France in mind, the Senate approved another extension of the State of Emergency. The National Assembly followed suit on May 26.

On July 14, 2016, a man drove a truck into crowds celebrating Bastille Day in Nice, killing 86 people and injuring 434. Within 24 hours of the attack, and just two weeks before the State of Emergency was set to expire, President Hollande confirmed it would be extended yet again.

On July 26, 2016 two men stormed a church outside of Rouen, killing an 84-year-old priest and taking four hostages before police killed the two attackers.

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All of these attacks have been designated as acts of terrorism, a label that renders them symbolically specific while simultaneously providing cover for investigators to leave the actual details and motivations behind the violence frustratingly vague. The counter-terrorism measures put in place seem to share this same shortcoming: the State of Emergency is invoked and re-invoked as a symbolic shield to protect the Republic, but the details of how exactly it protects the populace are not for public consumption.

The French Executive draws its authority to institute a State of Emergency from Article 16 of the Constitution. The Article reads: “Where the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfillment of its international commitments are under serious and immediate threat, and where the proper functioning of the constitutional public authorities is interrupted, the President of the Republic shall take the measures required by these circumstances, after formally consulting the Prime Minister, the Presidents of the assemblies and the Constitutional Council.”

In her article Inherent Executive Power: A Comparative Perspective, Jenny S. Martinez notes this provision is “one of the broadest grants of emergency powers to the executive in a modern democratic constitution.” While Presidents since de Gaulle have eschewed his preference for unilateral action and opted instead to work with the support of the Prime Minister and legislature, the enormity of power conferred on the Executive by Article 16 remains unchanged.

Under the State of Emergency, the Executive branch has authority to shut down demonstrations, bans on public assemblies and nongovernmental organizations (including the closure of mosques), impose curfews, confiscate weapons, and put people under house arrest. The government is also entitled to conduct warrantless “administrative searches,” night-time raids which in practice have been known to depart from the bureaucratic blandness the name conjures.

The justification for these broad powers is counter-terrorism, but the Executive is not clearly constrained from mission-creep.

In May 2016, for example, the government used the State of Emergency provisions to ban members of two far-left organizations from joining a demonstration against labor reform.

Even if the government chooses to restrict its powers to accomplish counter-terrorism tactics, it’s not clear how effective they have been. Between November 2015 and July 2016 the government conducted almost 4,000 “administrative searches,” which resulted in less than 300 court proceedings. Of those, only 6 resulted in terrorism-related inquiries and only one resulted in a prosecution. But here again is evidence that the government is not restricting its powers to accomplish counter-terrorism tactics. According to the New York Times, “most of these home raids were conducted by narcotics units that used these new powers against suspects with no ties to terrorism. There was evidence of similar misuse in the house arrests imposed on 404 people as of May: At least 24 of those were environmental activists detained in the run-up to last year’s Paris climate conference.” The problem of unchecked power by the Executive is further compounded by the fact that “any recourse after the fact is often limited and inadequate.”

The threat that this never-ending and poorly defined State of Emergency poses for civil rights and civil liberties is not lost on French citizens. The specter of the Algerian War looms large. During the war, which lasted from 1954 to 1962, the French government, under the larger-than-life persona of then President Charles de Gaulle, asserted additional powers under a State of Emergency to subdue the Algerian National Liberation Front. These included punishment of leaders of the insurrection and their supporters, military courts, detention of suspects for up to two weeks, and censorship. Algeria was ultimately successful in its decolonization efforts, but it came at enormous cost: to meet the challenges of guerrilla warfare and under the authority of the State of Emergency, France authorized brutal military intervention. By the end of the war, both sides had sanctioned the use of torture.

So what is next? The current State of Emergency is set to expire at the end of this year. But a France without an extended State of Emergency has started to seem as unlikely as a France without acts of terrorism. Difficult to say now which one exacerbates the other, much easier to guess their precarious tap-dance will continue into the new normal.

Written by

Liz Valentin is a 2L at HLS. She is a member of the Harvard Prison Legal Assistance Project, a student attorney at the Legal Services Center in the Domestic Violence Clinic, and an Executive Editor for Online Content for the Journal of Civil Rights and Civil Liberties. Liz is also a board member of the Graphic Advocacy Project, a design non-profit that creates customized graphic expressions of law that engage, inform, and empower. Prior to law school, Liz worked for the Center for Science in the Public Interest in Washington, DC, and doubled majored in Philosophy and Government at Wesleyan University.

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