Friday, August 26, 2005

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Those French intelligence officials....

The Financial Times carries an interview with France’s top anti-terrorist judge, Jean-Louis Bruguière. One piece of information -- which the FT is hyping -- is that Al Qaeda is ostensibly planning an attack on a financial center in the Pacific Rim.

However, the meat of the interview contains an interesting observation about the distinctions between civil law and commonlaw countries in dealing with terrorism:

France since 1986 we have deliberately put the legal system at the center of the struggle. That is how we have developed a pro-active policy, which means giving the arm of the law the ability to apply pressure in a policy of prevention.

This means doing away with the distinctions between repression done by the judiciary and prevention as carried out by the intelligence services. The barrier no longer exists. The advantage of this is that the legal system is more credible and less contested. By working more closely with the secret services the legal system is reinforced.

Our system is much more flexible as it is civil law rather than common law. The source of the law are legal texts, not jurisprudence of previous decisions. We don’t have to bow to legal precedents, as in the UK or US, which prevents their system from evolving. As a result the US and UK have been forced to seek other answers to the new threat, some of which are often outside the law.

All the debate in the common law systems will be about the admissibility of evidence. In the French system all types of evidence are admissible but they do not have the same weight. As a result, sharing intelligence information in the law enforcement area is not an insurmountable obstacle and can be a starting-point for our enquiries....

Our offence of ‘criminal association with a terrorist enterprise’ is much stiffer than the British offence of conspiracy. It includes any activity, whether logistics or financial, that helps a terrorist activity, whether or not the group or its objective has been identified.

In France we can hold a suspect for four days without them being charged or gaining full access to a lawyer. Every year France has disrupted terrorist threats, such as the attempt in 2000 to bomb the Christmas market in Strasbourg. We have not suffered a terrorist attack since 1996. We do not have a system that is as tough as the British for expelling radicals.

Readers are invited to comment on the tradeoffs between the two legal traditions in dealing with national security issues. On economic growth, there are other tradeoffs, btw.

posted by Dan on 08.26.05 at 12:30 PM


Not being an expert on the differences between the Napoleonic code and English Common Law, I'll leave your central question to others more erudite. As I read this article, however, a slightly different question popped into my own head: to what extent have French attempts to mollify Islamic opinion (within and without its own borders) contributed to the lack of terrorist attacks there? That's not to discount their impressive police and counterintelligence work, but to suggest that there's more to the issue of France's successful strategy than meets the eye. It also raises the question of whether, jurisprudential differences aside, the UK and US (and other commonwealth countries) could emulate France, even if our leaders thought such a policy wise.

posted by: Kelli on 08.26.05 at 12:30 PM [permalink]

The common law approach seems to favor individual rights over the rights of society ("innocent until proven guilty'), on the simple premise that the State is always going to be the stronger entity and therefore the greater threat to freedom. The civil law approach seems to favor the rights of the community over the rights of the individual ("guilty until proven innocent"). I agree that an approach that favors the security of the public over the rights of the individual will tend to be more effective in combatting terrorism. But either system has to contain certain restraints so that innocent members of society are protected. So the end result may not be as different as one would think. In any event, I would always be more favorably disposed to a system that puts individual rights before the community's rights as the better guarantor of personal freedom! But, remember, neither system can be allowed to become the proverbial "suicide pact"!

posted by: RAZ on 08.26.05 at 12:30 PM [permalink]

Having gone to school in Louisiana, I can recognize a charicature of the common law when I see one.

The common law is not inherently inflexible; a statute can trump common law, but rights and duties in common law _constitutions_ can be hard to curtail.

The obsession with rules of evidence pertains to common law use of juries. Those rules are relaxed substantially in the absence of lay people.

So, Frenchie is bragging that France doesn't have to worry about constitutional rights and juries. How many people want to emulate that?

posted by: PD Shaw on 08.26.05 at 12:30 PM [permalink]

In the early days of a fascist police state you find policies that seem like a good idea. The devil is in the details which are revealed later.

posted by: Tia on 08.26.05 at 12:30 PM [permalink]

I'm not sure I'd call the paragraphs Dan quotes from the "meat" of this interview, though it may be the best starting point for an argument about legal systems. For my money, the main point of the interview is instead this:

“There is not enough public consciousness of the terrorist risk. This lack of consciousness makes it extremely difficult for governments to pass laws that are pro-active and allow their law enforcement and intelligence services to pre-empt attacks and aggressively anticipate threats. There is more work to be done to sensitise the public to the threat.”

Mr. Bruguière was speaking about Asia and Australia, but he may as well have been speaking, in the past tense, about England before the July 7 bombings. A legal system based on common law is plenty capable of not being a roadblock to preventive action against terrorism, provided terrorism is seen as a threat to be guarded against. There was complacency on this point in Britain before July 7, as there was in the United States before 9/11 and in some respects is still today. The French have for some time taken a much more aggressive posture toward what they have no doubt is a serious potential threat, and their awareness of the threat rather than the structure of their legal system is what has given them their greatest advantage in preventing terrorism on French soil.

posted by: Zathras on 08.26.05 at 12:30 PM [permalink]

In France we can hold a suspect for four days without them being charged or gaining full access to a lawyer.

That's nothing. In Iraq, the US military can hold US citizens without charge for 55 days and and then make this comment:

"This case highlights the effectiveness of our detainee review process," Brig. Gen. Don Alston, a Coalition Forces spokesman, said in a statement. "We followed well-established procedures and Mr. Kar has now been properly released."
posted by: Randy Paul on 08.26.05 at 12:30 PM [permalink]

Most people forget that no matter what the law is
called, Law's are just guide lines in achieving fairness
between individual humans.

Oddly enough, The human race has never been able
to build a legal system where fairness is achieved in
a consistance manner.

Obtaining Justice does not mean Fairness obtained.

Obtaining Fairness always obtains Justice.

And Fairness is always more important than Justice.

Never cry that you want Justice; Always cry that
you demand Fairness.

posted by: James on 08.26.05 at 12:30 PM [permalink]

Internally, France has had a very aggressive policy of deporting Islamists for several years. If you aren't a French citizen and they think that your words are dangerous, they round you up and back to Turkey or Morocco you go. Islamists don't have to specifically call for violence to get removed.

I don't think France's internal policy toward Muslims is molification (as suggested by another commenter) so much as Francophonization. France supports an official body of imams which seek to create a "French Islam" which will be France-friendly. This is very similar to what Arab countries have done in funding mosques and making sure that imams are saying the right things. This would certainly violate the First Amendment if a U.S. administration tried this. Imagine the Bush Administration funding the Methodist Church and then telling it what doctrines to hold to.

Externally, France has taken a mollification/appeasement approach and while this has helped them, it has hurt others. In the case of the Palestinians, France's support for Yasser Arafat and tolerance for Hamas' activity in Europe has done great harm to both the Palestinian people and Israeli security. Hamas will not attack France, but it will keep blowing up Israeli restuarants.

posted by: Kirk H. Sowell on 08.26.05 at 12:30 PM [permalink]

Randy Paul:

In a war zone, yes, and by the military. Our tradition makes a very strong distinction between actions of the military, in war time, where there have certainly been abuses that would be miscarriages of justice domestically, in peace time, or by the civil authority. That's part of why we have the Posse Comitatus Act, and the separation of civilian police force and military organizations. The French judge claims that France makes less of a distinction, allowing its intelligence services to work with the judicial system in a way that the Church committee reforms don't allow-- indeed, FBI and other attempts to allow such cooperations have been strongly resisted by civil libertarians.

It's not really a fair comparison you're making, since the French military can and does go beyond four days of confinement in war zones. (And US police cannot violate habeus corpus domestically the way the French legal system does.) The US also doesn't bomb Greenpeace ships the way the Mitterand had the French secret service do to the original Rainbow Warrior. What's your point? The French have also gladly accepted all their nationals from Gitmo and locked them up without trials.

I think that the separation of military from the police is absolutely critical. The precise separation between intelligence and police is a very difficult matter. I think that the French go too far.

posted by: John Thacker on 08.26.05 at 12:30 PM [permalink]

John Thacker,

To begin with I was being sarcastic. However, Cyrus Kar had a permit to film, he repeatedly asked for an attorney and was consistently ignored.

I'm hardly praising the French here. On the other hand, to hold one of your own citizens who's legtimately there for 55 days, then to claim that the matter highlights the "effectiveness of [y]our detainee review process" is risible IMHO.

posted by: Randy Paul on 08.26.05 at 12:30 PM [permalink]

I think the key advantage of common over civic law is in its very inflexibility. Too often do new crises and events create an impetus for change, that lead to disastrous consequences. A foundation based on common law requires that any changes are made slowly over time and weighed against the force of precedent; and in American and Great Britain, the precedent is one of individual rights and due process. For anyone concerned about personal rights and containing governmental power, common law is absolutely essential. This is but one of the many factors that has made British/American political traditions so unique.

The real question then is what happens when your common law is based not on the Anglo-American model but on a Wahhabist philosophy that preaches violence against nonbelievers. I would think that common law is only as good for individuals as its tradition.

posted by: Connor W on 08.26.05 at 12:30 PM [permalink]

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