France’s Perpetual State of Emergency

On Thursday night, France had seemed to dodge the bullet everyone feared. The Euro 2016 soccer tournament had come to a peaceful, though disappointing end, while the festivities for Bastille Day were well underway. But everything changed near 11 p.m. when a large white truck sped and swerved for more than a mile down Nice’s famous Promenade des Anglais. By the time a salvo of police gunfire killed the truck’s driver, the Tunisian-born Mohamed Lahouaiej Bouhlel, more than 200 pedestrians, who had filled the seaside boulevard to celebrate the holiday, were either dead or wounded.

Less than 24 hours later, French President François Hollande made clear that the country’s state of emergency, which was first introduced in the wake of last November’s terrorist attacks in Paris, and was scheduled to lapse in two weeks, wouldn’t be going anywhere. It may well prove that this extraordinary state will become France’s new ordinary.

The emergency laws that Hollande applied last year date to around the start of the Algerian war of independence in 1955. The government at that time claimed it required additional powers to safeguard the nation, including the power, as it turned out, to sanction torture by the military. The government did not mention that the ramped-up war in Algeria, and the string of outrages it produced, might eventually lead to the collapse of the existing constitutional order, as it did in 1958, when Charles de Gaulle assumed power with the military’s consent.

Two hundred and fifty-five parliamentary deputies had the foresight to vote against the 1955 legislation. Chances are slim that as many officials could be found today to defend the country’s constitutional safeguards. This is not to suggest Hollande intends on violating such safeguards to the extent his predecessors in the 1950s did. But the potential for such violations is nonetheless high. The present state of emergency grants the government powers to shut down demonstrations, impose curfews, confiscate weapons, and put people under house arrest. Civil libertarians have focused their ire at measures that allow the government to conduct “administrative searches” — an anodyne term that obscures the often violent and terrifying character of these raids — without a court-issued warrant. One critic has said the law could allow the government to turn France “into a dictatorship within a week’s time.”

And today’s escalatory dynamic is eerily reminiscent of that earlier decade. The present state of emergency, originally declared in November, was prolonged for three months beginning in February. Come May, the government, determined to guarantee the security of both Euro 2016 and the Tour de France, pushed for another extension. The Nice attack has ensured they will be in place for at least another three months. It’s easy to imagine a further extension in the fall, if not yet the specific circumstance that would motivate it.

Indeed, each of France’s recent tragedies has only produced demands for harsher security measures. After last November’s attacks, certain prominent figures on the right, like Laurent Wauquiez, even called for the creation of concentration camps for terrorism suspects, an idea that was explicitly rejected in 1955.

It’s fair to wonder if the French government has become addicted to its emergency powers. What’s clear is that the warrantless searches permitted by the legislation have proved both invasive and ineffective: Of the nearly 4,000 administrative searches that have been undertaken since November, only 7 percent have led to court proceedings. No less alarming have been the government’s efforts to use its enhanced powers not only against suspected terrorist cells, but also against individuals and groups protesting various environmental and political measures. (The most recent example was the ill-fated effort last month to force the cancellation of a protest against proposed legislation to give employers greater freedom to fire and hire workers.) As the prominent Socialist politician Dominique Raimbourg said in May during the previous parliamentary debate about extending the legislation, France has been “evolving from a state of emergency aimed at fighting terrorism to a state of emergency aimed at maintaining public order.”

But even as the Promenade des Anglais remains a crime scene, the conversation has shifted dramatically: The government is now under fire for failing to take the full measure of the emergency confronting the nation. Christian Estrosi, the president of the region that encompasses Nice and the leader of the “law and order” faction in the conservative Les Républicains party, quickly denounced the Socialist government’s failure to heed the pleas he had sent days before for a beefed-up security presence. Friday morning, he ratcheted up his criticism: “It’s my impression,” he declared ominously, “that the state met the threat lying down.” He continued, “Has the government forgotten,” that France, “is at war?”

Not surprisingly, Nicolas Sarkozy, the once (and, he desperately hopes, future) president, doubled down on Estrosi’s grim denunciation. “Nothing will ever again be like it was before,” he declared, calling not just for the extension of the state of emergency, but the “adaptation and reinforcement” of the state’s counterterrorism tools. No doubt fearful of appearing too weak, Sarkozy’s rival for the Les Républicains presidential nomination, the usually cautious Alain Juppé, called for re-examining the “balance between protecting the French and the limits of individual liberties” — in favor of tipping further away from liberté. The state’s first priority, he intoned, was to “protect the French and give itself every means to do so.”

The French, it appears, share Juppé’s view. In the aftermath of last November’s terrorist attacks, a poll taken by the French Institute of Public Opinion (IFOP) revealed that 84 percent of respondents were willing to sacrifice personal liberties on the altar of public safety. Two months later, in January, these numbers remained almost unchanged: Another IFOP poll showed that nearly 80 percent of respondents declared their support for the extension of the state of emergency.

And yet, it isn’t at all clear what perpetuating this state of alert can achieve. The shape-shifting character of terrorism will always test the nation’s ability to defend its citizens. French authorities have known since at least 2014 that the Islamic State has urged its followers to use heavy trucks as weapons of mass destruction. While the police and intelligence services have nipped at least 10 planned terrorist attacks in the bud since 2013 — two of which occurred since the state of emergency was declared — they cannot stop each and every one. Even at their most invasive or inventive, these services cannot prevent an individual without a history of possible terrorist associations — as was the case with Bouhlel — from acquiring a truck with ulterior (and sinister) motives. Or a speedboat or, for that matter, a ticket for a seat on a bateau-mouche as it plies down the Seine. In the ineluctable logic of terrorism, one ticket is all it takes.

At the same time, the government has also opted for a cosmetic approach to counterterrorism with Operation Sentinel, which has deployed more than 7,000 soldiers — 10,000 during Euro 2016 — to sites around France, but which all parties involved understand has less to do with securing sensitive areas of the country than with reassuring both the French and tourists. “Given the diffuse and opportunistic nature of the terrorist threat,” said Elie Tenenbaum, a researcher at the respected French Institute of International Relations, earlier this year, “the protection of these sites by armed soldiers is fated to fail.” In an interview with Le Monde, a French military officer described the operation more bluntly: “It’s a sieve.” The critical appraisal of the army’s effectiveness as a counterterrorism force will not change after the Nice attack: Groups of soldiers garbed in fatigues and armed with assault rifles patrolling in Nice neither prevented Bouhlel from entering the promenade nor brought his murderous foray to an end. (According to reports, Bouhlel was stopped by a civilian who leapt onto the truck’s cabin and a handful of policemen who, running after the truck, caught up with their guns blazing.)

In January, Hollande reassured the French people that it was not in the “vocation” of the state of emergency to “endure.” Yet, just days later, his prime minister, Manuel Valls, declared that France was facing a “global and enduring threat.” This contradiction lies at the heart of the country’s current predicament. Since the ancient Roman Republic, jurists have recognized the legitimacy of the state of emergency. In Roman law, legitimacy was based not just on the nature of the threat posed to the republic, but also on the recognition that the state of emergency was, by definition, limited in time. A different logic, though, now seems to be unfolding in France: a democratic state that promulgates and preserves exceptional and undemocratic practices.

Photo credit: AFP/Getty Images