Following the Paris terror attacks in November 2015 that left 130 people dead, France’s National Assembly voted to enter into a state of emergency.
This state of emergency was extended in July 2016 for an additional six months, following the Nice terrorist attacks. Last December, France extended its state of emergency for an additional seven months, bringing the total duration to 20 months. Prime Minister Manuel Valls supports the extension, arguing that France must expect more deadly attacks, but should “learn and live with this menace.”
A state of emergency generally lessens restrictions on government for investigating terrorism. For example, under French law, a search of a premise is typically authorized by judicial authorities. However, under the emergency regime, Prefects, who represent the state at the local level, can authorize a search on vague grounds such as a “reason to believe that the location is frequented by a person whose behavior constitutes a threat to public order and security.” During a state of emergency between November 14, 2015 and January 29, 2016, French authorities conducted 3,242 such searches, with orders Amnesty International argues were short and contained very little information. Also, French authorities can legally impose assigned residence orders on individuals when there are serious or consistent elements to suspect that they have committed a crime. Under the emergency regime, imposing an assigned residence order requires only that “there are serious reasons to believe that a person’s behavior constitutes a threat to security and public order.” France uses this power as a preventive measure, but under the emergency measures authorities need not provide evidence demonstrating effectiveness in preventing further terrorist attacks.
While the state of emergency is intended to improve France’s national security, many argue that its consequences are detrimental to human rights. Amnesty International’s Europe Director argues that the extension “threatens to turn a generalized security threat into grounds for a constant state of emergency.” Nadim Houry, the Director of Human Rights Watch’s terrorism and counterterrorism program, argues that the state of emergency is becoming the new norm, which is dangerous for a democracy based on rule of law, and that authorities should reevaluate their reliance on such measures. France’s own parliamentary commission of inquiry found last July that the emergency regime had a “limited impact” on security, and that the nation’s intelligence agencies should consider overhaul.
France’s state of emergency seems to provide authorities with powers similar to what American law recognizes as exigent circumstances for searches and seizures. The main difference is that France is recognizing such circumstances as constantly existing since the Parisian terrorist attacks. Although initial terrorism investigations typically reveal a lot of information about possible suspects without any need to search an individual’s home, such investigations can only go so far. The state of emergency’s lowered search standard cannot, however, continue relying on vague premises for an extended period. Vague warrant standards already risk discrimination regarding which searches are deemed legal, but the state of emergency’s extension further risks that these standards will continually ignore basic individual rights. Although one could understand a temporary grant of exigent powers, France’s state of emergency simply assumes the constant need to depart from pre-existing legal standards.
In addition to relaxing standards for searches of private homes, assigning prefects to issue warrants instead of judges can raise issues regarding whether a search is justified at all. Extending the authority to write a warrant risks leaving interpretation of existing law to those without enough experience and knowledge of law as a judge. One may argue that France’s civil legal system encourages multiple interpretations of the law, and therefore prefects can issue such warrants without significant legal repercussions. Allowing the prefects to have extended powers could have a lasting effect with unintended and negative consequences such as interpreting the law to further discriminate and target specific groups of France’s population. Furthermore, the recent arrest foiling an imminent terror plot does not justify a continued state of emergency. A judge could have issued a warrant of probable cause upon examining the video of the suspect pledging allegiance to ISIS without needing a prefect’s determination.
If France is to continue its state of emergency, it must improve its transparency on the emergency regime’s measures and provide evidence of its effectiveness. Without such evidence, France’s systemic issuing of unwarranted searches or assigned residence orders remains unjustified. The Parisian terrorist attacks left France with many difficult decisions to make regarding its investigations, but if France prides itself as a bastion of human rights it must lift its state of emergency, or revoke some of the authority police are granted during the state. The state of emergency’s extension risks too much for France’s citizens and reputation for human rights without proof of its effectiveness.