Counterterrorism: The French net is still far too wide

The opening of the trial of some of the perpetrators of the mass killings committed in Paris on the night of November 13 to 14, 2015 was an opportunity to question once again possible failures of intelligence services in the follow-up of persons suspected of terrorist inclinations.

It can certainly be tempting to seek to ward off the dread generated by a crime of this magnitude by relating it to a human error which could be easily corrected, thus guaranteeing us the recurrence of such facts. But the reality is otherwise complex and it would be just as illusory as it is dangerous to pretend to prevent any risk of a terrorist attack.

That being said, it is on the other hand possible - and even desirable - to seek to improve the capacity of the authorities in charge of the fight against terrorism to detect planned crimes sufficiently early to be able to question their perpetrators at the stage of their preparation. In this regard, two characteristics of the French system deserve to be seriously questioned.

Too much dependence on executive power

First, anti-terrorism justice today suffers from too much dependence on the executive power. Backwards Council of Europe recommendations, as standards applicable to European Union prosecutor, the national anti-terrorism prosecutor - like all prosecutors - does not benefit from any guarantee of independence with regard to the executive power. The Keeper of the Seals alone decides on his appointment, discipline and possible dismissal, the Superior Council of the Judiciary only issuing a simple opinion on the matter.

This situation is all the more problematic as the surveillance measures implemented by the intelligence services even before the judicial phase are decided by the only prime minister, the independent authority constituted by the national commission for the control of intelligence activities, not issuing an advisory opinion.

As a result, our legal order today offers very few guarantees against the risk of politicizing the fight against terrorism, that is to say the risk that considerations other than the mere prevention and repression of crimes come into play. We obviously think of the abusive use of the terrorist qualification, which the Court of Cassation was able to censure in the so-called "Tarnac" affair or who appeared in the searches carried out at the homes of environmental activists when the state of emergency was declared in November 2015.

Counterproductive politicization?

But just as much - if not more - of concern, this politicization can also have the effect of preventing or unduly delaying the prosecution of proven terrorist offenses. Beyond the desire to maintain diplomatic relations with such or such a “friendly” government whose nationals could be involved in attacks - such as, symbolically, the immense difficulties of the US authorities in investigating the role of people of Saudi nationality in the New York attacks - this risk is materialized by the difficulty of the services to apprehend other forms of terrorism than those corresponding to the representations of the governors.

Thus, the Madrid attacks of March 11, 2004, claimed by Al Qaida, were initially awarded to the Basque organization ETA by the Conservative government of the day. If no consideration other than the need to prevent and punish terrorist crime is to interfere with the work of law enforcement authorities, there is an urgent need to give them the independence they should enjoy in a democratic society.

Restrict the legal notion of terrorism

Secondly, improving the capacity of the police and justice authorities to identify in good time confirmed plans for an attack presupposes putting an end to the contemporary propensity of the legislator to extend the law indefinitely. repressive net, at the risk of considerably stretching the meshes.

From the outset, the legal notion of terrorism has been particularly extensive. The criterion allowing a crime or an offense to fall into this category indeed offers an almost limitless margin of appreciation to the authorities, since they need only invoke the will. "To seriously disturb public order by intimidation or terror".

In addition to the fact that the notion of public order in criminal and repressive matters is particularly malleable, determining what is “intimidating” or “terrifying” involves an irreducible subjectivity.

If the "terrorist" character of the mass assassinations that we have known in recent years does not give rise to discussion, this is not the case for the overwhelming majority of the facts prosecuted in this respect, which are the responsibility of the leader of the government. criminal association offense : unless it is clearly claimed, how to characterize the terrorizing purpose of an act when one is only at the stage of preparatory acts, such as meetings during which no specific project is yet envisaged or of simple spotting?

This is how the terrorist qualification automatically tends to extend to an increasing number of incidents, at the risk of contributing to the dispersal of repressive forces.

Dispersion tendency

However, the public authorities continue to want to extend the list of terrorist offenses or similar, since the offense of apologizing for terrorism, which punishes the mere fact of presenting in a favorable light a attack or its perpetrators, until the consultation of a website relaying such remarks. An offense censured by the Constitutional Council precisely on the grounds of the absence of need for this new offense with regard to all the prerogatives already available to the public authorities.

This tendency towards dispersion is further aggravated by the development, over the past decade, of increasingly unbridled surveillance of digital networks.

The law of July 24, 2015 thus introduced the possibility for the intelligence services to proceed to the generalized and undifferentiated capture of our computer exchanges in order to detect a possible terrorist threat. At the risk, again of reducing the ability of the authorities to distinguish criminal projects from the multitude of more or less tendentious comments that can be made on the Internet.

We cannot therefore welcome enough the halt to this movement by the Court of Justice of the European Union. In a landmark judgment of 6 October 2020, it thus ruled that the mass surveillance of IT activities could only intervene to deal with

"Activities likely to seriously destabilize the fundamental constitutional, political, economic or social structures of a country" and which:

"Are distinguished, by their nature and their particular gravity, from the general risk of the occurrence of tensions or disturbances, even serious, to public security".

By inviting us to tighten the mesh of the net, it reminds us that the strict supervision of public authorities, far from being an obstacle, is a sine qua non for the effectiveness of repression.

Vincent Sizaire, Associate lecturer, member of the Center for Criminal Law and Criminology, Paris Nanterre University - Paris Lumières University

This article is republished from The Conversation under Creative Commons license. Read theoriginal article.

Image: Palais de Justice, Paris

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