How the French Fight Terror
By Marc Perelman
Foreign Policy, January 2006
Could Paris teach Washington a thing or two about protecting civil liberties while tracking down terrorists at home? In the United States, revelations that the Bush administration mandated domestic spying have caused a political uproar. France, however, has been spying on its citizens for years, as part of its effective, albeit controversial, counterterrorist system.
In 1988, the FBI invited Alain Marsaud, then France’s top antiterrorist magistrate, to speak about terrorism to the bureau’s new recruits at its academy in Quantico, Virginia.
Marsaud, now a conservative lawmaker, told the audience of would-be feds of the deadly threat that radical Islamist terrorist networks posed to Western societies. His talk was an unmitigated flop. “They thought we were Martians,” recalls Marsaud, who chairs the French Parliament’s domestic security commission. “They were interested in neo-Nazis and green activists, and that was it.”
Marsaud’s experience goes to show just how far Washington has come. Since Sept. 11, 2001, the United States has moved swiftly to overhaul its counterterrorism policy, and has hit some bumps in the road. The recent revelation that President George W. Bush mandated domestic spying has caused a political uproar, even among Republicans. Yet questions of spying, security, civil liberties, and privacy are not new to France, which found itself in the cross hairs of Middle Eastern terrorists well before the United States did. France was the first to uncover a plot to crash a jetliner into a landmark building (the Eiffel Tower)—a chilling preview of the 9/11 attacks. It was the first to face the reality that its own citizens could become assets of Islamist terrorist groups, long before British nationals bombed the London Underground last July. As a result, it has continuously adapted its judicial system and intelligence services to the terrorist threat that it faces.
Like most European countries, France favors a judicial approach over the U.S.-style “war on terror.” But the French blend of aggressive prosecution, specialized investigators, and intrusive law enforcement is unique in Europe. And though the policy has gone through trial and error, the early warning helped fashion what has proven to be a fairly successful—though controversial—counterterrorist response.
French Domestic Legion
France’s early awareness of the terrorist threat grew out of experience rather than prescience. France was the first Western country struck on its soil by state-sponsored terrorism from the Middle East. France had been hit by terrorist attacks linked to the war in Algeria in the 1950s and to Palestinian groups in the 1970s. But, much like the United States on the morning of 9/11, France was caught largely unprepared when a series of deadly attacks shook Paris in the mid-1980s. The new terror wave, allegedly ordered by Iran and Syria, involved a geopolitical dimension that the antiquated French police and justice systems were in no position to counter. That prompted the adoption in 1986 of a comprehensive antiterrorism law, which set up a centralized unit of investigating magistrates in Paris—led by Marsaud and later by judge Jean-Louis Bruguière—with jurisdiction over all terrorism cases. Unlike normal French criminal proceedings, terrorist trials in France are judged only by panels of professional magistrates, without the participation of juries.
In the French system, an investigating judge is the equivalent of an empowered U.S. prosecutor. The judge is in charge of a secret probe, through which he or she can file charges, order wiretaps, and issue warrants and subpoenas. The conclusions of the judge are then transmitted to the prosecutor’s office, which decides whether to send the case to trial. The antiterrorist magistrates have even broader powers than their peers. For instance, they can request the assistance of the police and intelligence services, order the preventive detention of suspects for six days without charge, and justify keeping someone behind bars for several years pending an investigation. In addition, they have an international mandate when a French national is involved in a terrorist act, be it as a perpetrator or as a victim. As a result, France today has a pool of specialized judges and investigators adept at dismantling and prosecuting terrorist networks.
By contrast, in the U.S. judicial system, the evidence gathered by prosecutors is laid out during the trial, in what in effect amounts to a make-or-break gamble. A single court, the “secret” panel of 11 judges, established by the U.S. Foreign Intelligence Surveillance Act (FISA) more than two decades ago, is charged with reviewing wiretap requests by U.S. authorities. If suspects are spied on without permission in the interest of urgency, the authorities have 72 hours to file for retroactive authorization. The Bush administration’s recourse to extrajudicial means—military trials, enemy combatants—partly stems from an assessment that the judicial system is unfit to prosecute the shadowy world of terrorism. The disclosures that the Bush administration skirted the rules to eavesdrop on terrorism suspects at home is apparently the latest instance of the government’s deciding that rules protecting civil liberties are hampering the war on terror. French police and intelligence services, in contrast, operate in a permissive wiretapping system. In addition to judicially ordered taps, there are also “administrative wiretaps” decided by security agencies under the control of the government. Although the French have had their own cases of abuse—evidence has exposed illegal spying by the François Mitterrand government in the 1980s—the intrusive police powers are for the most part well known by the public and thus largely accepted, especially when it comes to national security.
On the ground, these trans-Atlantic disparities amount to a big difference. Take the case of Ahmed Ressam, an Algerian man arrested in late 1999 at the U.S.-Canadian border with a car full of explosives. When U.S. authorities determined that he intended to bomb Los Angeles International Airport, they had no clues about his background. But Bruguière already had a comprehensive dossier on Ressam and concluded that he was connected to a network of radical Islamists based in Montreal who were possibly plotting attacks in North America. U.S. prosecutors eagerly used stacks of French documents to build their case and even invited Bruguière to testify as an expert witness (defense attorneys objected to his being deemed an expert witness, and the judge did not allow him to testify before the jury).
During the past two decades, Bruguière has acquired a near-mythical aura because of his dogged efforts to prosecute terrorists around the globe. Critics, however, bemoan his tendency to stage spectacular raids, claiming the headline-grabbing moves often fail to secure convictions. To them, Bruguière’s taste for the limelight epitomizes the problem of vesting power in a small cadre of antiterrorist judges with limited oversight of their work. More broadly, human rights groups see the judicial regime as an arbitrary one in which many suspects are rounded up on terrorism-related charges, but few convictions follow. Although officials see that as necessary preventive action, the human rights community worries over potential abuse by police forces. In a 1999 report, the International Federation for Human Rights accused the French government of large-scale violations of its obligations under the European Convention on Human Rights.
In addition to overzealous judges, human rights advocates blame the ever expanding definition of terrorist crimes. The 1986 law defined terrorist crime narrowly. Today’s expanded definition allows magistrates to detain preemptively suspects in any crime whose goal can ultimately assist terrorist activity.
The smooth relationship between France’s judiciary and its intelligence world is unique among Western nations. Even after 9/11, a proposal to create a separate domestic intelligence service failed to gather momentum in Washington. In Britain, the MI5 has no judicial competence. Yet, since the 1990s, the French domestic intelligence service has had the ability to ask magistrates to open investigations. Judges can in turn assist the agency by ordering warrants, wiretaps, and subpoenas.
That is in part because the French authorities see petty crimes as a window into a terrorist network, as its members mostly operate in compartmented cells, each contributing to a larger conspiracy known only to the masterminds. To unravel complex plots, France has used its extended police powers to monitor mosques and suspicious individuals and eventually expel those deemed too dangerous. It has relied both on human intelligence, notably police and intelligence agents of Muslim descent, and on technological means to break cases. A new bill adopted in December increases police surveillance methods—especially video and communications—and stiffens prison sentences for convicted members of a terrorist plot.
But, as Bruguière points out, even simple identity checks can provide precious intelligence, as was the case in the Ressam affair, where the discovery of forged passports eventually led to a terrorist cell. Although French police are entitled to check the identity of any passerby in France without justification, requiring national identity cards for all Americans would almost certainly spark outrage and controversy.
Bush administration officials argue that the FISA law in its current form does not effectively counter the terrorist challenge. Yet, the administration has not made serious efforts to amend the law or push for broader reform of domestic counterterrorism. Doing so would no doubt be difficult politically and may require regular tweaking, as the French experience shows. But such an effort could pay dividends, for both law enforcement and the American people’s trust in their government.
In recent years, French authorities claim they have thwarted a number of terrorist plots by using their forward-leaning arsenal, from a series of alleged chemical attacks planned by Chechen operatives against Russian interests in Paris to a recently reported ploy by French Muslims linked to a radical Islamist group in Algeria to target one of the capital’s airports. “The French have a very aggressive system but one that fits into their traditions,” says Jeremy Shapiro, the director of research at the Center on the United States and Europe at the Brookings Institution in Washington. “They seem to be doing the best job in Europe.”
Such praise makes French officials cringe. They point to Islamist attacks against French interests in Pakistan and in Yemen as evidence that France is not immune to terror. “We have our own approach and it has worked fairly well,” says Marsaud, “but we know that in this area, success can only be relative.”
Marc Perelman is a staff writer at The Forward.