French governments have always reacted to terrorism by adopting exceptional legislation. The list is long and goes back to the late 19th century: anarchist attacks led already then to the adoption of lois scélérates (“scoundrel laws”) and, especially, to the emergence of the penal infraction of association de malfaiteurs (“association of evildoers”), now a key concept. Later on, the far-right terrorism of the Algérie française (“French Algeria”) movement in 1958 encouraged General de Gaulle to create numerous special courts, including the Cour de Sûreté de l’État (“State Security Court”) (1963–1981), which indicted more than 5,000 activists over 18 years. This continued with the plethora of attacks in the 1980s committed by Action Directe or the Popular Front for the Liberation of Palestine. These attacks inspired the first specifically antiterrorist laws, particularly those of 1986 which (re)established many exceptions to general law (extended period of police custody, criminalization of specific new offenses, specialized magistrates, juryless Assize Court [criminal courts], etc.). In the 1990s, after the GIA (Armed Islamic Group of Algeria) attacks, the augmented antiterrorist arsenal constituted a sharp break with earlier approaches to terrorism by adopting, in particular, two laws: that of 22 July 1992, which introduced terrorist actions in the new Penal Code of 1994 to make them separate and more serious infractions; and especially that 22 July 1996, which criminalized many “accessory” behaviors, particularly support of terrorism, creating the crime of association de malfaiteurs in regard to a terrorist undertaking.
From that moment on, antiterrorism has been less reactive than preventative (the idea being to prevent actions from being carried out, to repress “terrorist intentions,” then to discover indications of “radicalization”). This has gradually embodied a kind of “justice exception”, belonging less to the courts than to administrators and police. The sequels to the murderous Charlie Hebdo attacks—the adoption and accretion of successive antiterrorist laws after tragic incidents, and the introduction of the exception into general law—are thus part of the French history of legal exceptionalism.
Antiterrorism is very distinctive in that it seeks out, in every situation, the justification of its own reinforcement. The foiling of an attack is described as proving both the effectiveness of the repressive system and the need to go further to adapt to the terrorist threat. “New” modes of operation are systematically emphasized, as well as the persistence of danger, which justify the adoption of “new” exceptional arrangements and then their institutionalization. Similarly, an attack that proves fatal demonstrates the cracks in the system and the urgency of further legislation. Any security incident justifies the strengthening of the punitive apparatus, in a constant cycle that nothing seems able to stop: neither opposition parties, nor the institutions that should serve as checks and balances, like the Constitutional Council or the Council of State which are not real brakes on legal exceptions; nor resistance movements (political, intellectual, activist, etc.) which, certainly, are increasingly numerous but cannot turn back the tide, much less sway public opinion, generally supportive of the securitarian ideology. A recent poll shows, [2] for instance, that 48% of those questioned were in favor of unlimited detention without trial (i.e. the creation of a Guantanamo à la française); that 25% were “all right” with arresting passersby at random in the street; and, more generally, that 80% were ready to restrict their freedoms.
This popular legitimization of exceptional measures is surprising only in its proportions. It may be partly explained by fear of attacks and by the discriminatory nature of antiterrorism, which does not induce the great majority of the population to fear repression by this exception. It is therefore not so much the restriction of their freedom that the 80% would accept, but the restriction of the freedoms and fundamental rights of others: of “suspects.” But, on the other hand, this acceptance of the equation “less liberty = more security” results from the incessant political use of attacks by various agents of power and, particularly, leaders of rightwing and far-right parties.
The case of the state of emergency is a fine example, illustrating three “scope creeps” or dangers of the exception: its length (nearly 2 years); the integration into general law of some of these measures (searches and house arrests, for instance [3]), and thus their normalization, their institutionalization, and their emancipation from the critical events that justified their adoption, in this case the fatal attacks of November 13, 2015; and, last but not least, the transformation of a specific provision into an “option” for later reuse. In fact, when an exceptional measure has been perceived, at a given moment in history, to be effective in combating radical violence, some will always demand its return. This is why the Vichy regime or the Algerian war, the two most repressive moments in French history, now provide politicians with a pool of experiences from which to draw “ideas” on antiterrorism. The same holds true for loss of nationality, unlimited detentions, or administrative internments, which, although they have always existed, have been used to excess in these years of crisis.
On this last point, the political sequels to the Trèbes attack, and the subsequent polemic on the fichés S [4], show how the state of emergency has become, for the right and far-right, the minimum exceptional repression to be established to combat potential attackers. Indeed, some of these instruments, as noted above, have already been introduced in our punitive apparatus. What we have here is the establishment of a double state of emergency: that already present in law, and that which may possibly be reactivated, a securitarian demand motivated by the idea of the unique effectiveness of a state of emergency that would further protect citizens and prevent terrorist attacks.
But bear two figures in mind. 23 is the number of cases opened by antiterrorist courts, while 4,500 administrative search warrants were issued. 11 is the number of terrorist attacks committed on French territory between 13 November 2015, and November 2017, while the state of emergency was in full effect, including the attacks on Magnanville (13 June 2016), Nice (14 July 2016), Saint-Étienne du Rouvray (26 July 2016), and the Champs Élysées (20 April 2017). And although terrorist attacks were foiled during those two years (32), it was indeed during rather than due to the state of emergency; intelligence services, police, and the courts naturally continued to function without the provisions deriving from this special situation. But the idea that “ordinary” antiterrorism, already extremely repressive and dominated by exceptional measures, can continue to foil terrorist attacks, no longer seems plausible, speakable, or comprehensible, as though only exceptions to general law could provide an effective defense against terrorism.
This may be the intrinsic strength of exceptionalism: inducing the belief that the radicality of the provisions embodying and shaping it, is the only way of addressing violence that itself is radical. And yet, demanding the restoration of the state of emergency boils down to wanting to return to a regime of aggravated repression, whose ineffectiveness was demonstrated over two years, and which, in reality, fulfilled objectives other than those officially stated: showing a high number of cases and highlighting a mass repressive action to demonstrate that the executive branch took the terrorist threat seriously (a deluge of administrative search warrants, for instance); discriminating against and stigmatizing a part of the population (Muslims); and annihilating political opposition. One needs only to remember the house arrests of environmental activists during COP 21 or the hundreds of travel restrictions during period of the El Khomri labor law (2016), effectively preventing demonstrations.
But this is not the most disturbing aspect of this securitarian electoral posturing, whose aim is above all to distinguish oneself from political adversaries. By insinuating that all has not been done to prevent attacks, this stance attributes deaths to the laxity of the executive and police/legal institutions (an old refrain of the right and far-right). This may excite conspiracy theories, as well as maintain a distorted image of the security situation. The next step is to govern by fear and feed an ever-increased sense of insecurity in part of the population ready to accept any measure presented as capable of preventing attacks. This is indeed what the right and far-right constantly repeat, and what certain media outlets amplify: if dispositions are taken that are hostile to freedom, discriminatory, and contrary to fundamental rights—such as loss of nationality, expulsion of foreigners, or detention of suspects—there will be no more attacks. Of course, it’s not very politically profitable to say that there is no such thing as zero risk, that French antiterrorism is the strongest and most comprehensive in Europe, that it is already extremely coercive, intrusive, and hostile to freedom, or that it is possible to foil attacks without these measures. That is why this narrative, and the political courage that goes with it, are rare among those who make constant political use of terrorist attacks.