Wednesday, January 18, 2006

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The Bush administration wants to be like France

Marc Perelman has a piece on Foreign Policy's web site comparing and contrasting the American and French approaches to homeland security. One big difference is how the problem was viewed prior to 9/11:

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.”

Then there are the differences in approach now. It turns out the Bush administration wishes the U.S. system was more like the French:
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....

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.”

The problem is that the French system doesn't fit very well with American traditions -- so I don't think grafting this system onto the American Constiution is going to work all that well.

posted by Dan on 01.18.06 at 12:15 PM


Have you studied FDR during WWII and Lincoln during the civil war?

posted by: j on 01.18.06 at 12:15 PM [permalink]

I guess in your mind it's better for France to be better at protecting their homeland. I think it's an embarrasment.

posted by: John B on 01.18.06 at 12:15 PM [permalink]

Is this intent or coincidence?

The classification of terrorists seized in Afghanistan and elsewhere as enemy combatants was originally an alternative to calling the prisoners of war, not to designating them criminal defendants. Military tribunals were authorized in a half-hearted attempt to show that terrorists who had already committed some egregious crime got some kind of trial, but years went by without their being used, and this was before Rasul. Finally the surveillance conducted by the Bush administration evidently involves data mining from amongst many thousands of phone calls and other communications rather than listening in on specific communications -- in other words, it uses newer technology in a legally problematic way. It is unlikely that this was intended as an imitation of the French practice.

This is one area in which I take Bush administration officials at their word. While the French use all the resources given to the state by their judicial system to deal with terrorism as a particularly dangerous sort of crime, the Bush administration sees terrorism fundamentally as a special kind of war. To the French approach, military force is mostly irrelevant; to the American, judicial processes are essentially beside the point.

posted by: Zathras on 01.18.06 at 12:15 PM [permalink]

The significant advantage the Frogs have is that they are not incumbered with people who don't see terrorism as a national threat. They (the citizens) have concluded that, to maintain a certain lifestyle of freedom, some secret conversations with "lovers" may be heard by the government. Whoopie! The question remains, what are Liberals so affraid of being exposed? THe phrase "its only illegal if you get caught" may now have new meaning to them.

posted by: gawfer on 01.18.06 at 12:15 PM [permalink]

Peter Chalk and Bill Rosenau at RAND did an interesting report on this very subject last year, comparing the domestic security services in UK, France, Canada, and Australia. Worth reading when thinking about this subject and a bit deeper and more methodologically sophisticated than the Perelman article.

Here is the link:

posted by: Patrick on 01.18.06 at 12:15 PM [permalink]

Gawfer, I'm quite willing to believe that there's nothing you could be blackmailed over. Very likely you're somebody who spends a lot of time on the internet (and away from embarrassing porn sites), and you likely don't have much of a life. No personal insult intended, I'm just going by probabilities.

But I'm pretty sure there are lots of Republicans who have things they could be blackmailed over. Particularly lots of Republican legislators. J Edgar Hoover had the reputation for doing that, a long time ago.

Don't be sure when a Republican says "Hey, I'm not scared, I'm clean, there's nothing wrong with searching everybody" he might lying. Don't be sure he isn't getting blackmailed into saying that.

posted by: J Thomas on 01.18.06 at 12:15 PM [permalink]

The FISA court is a rubber stamp. If they "need" to do things for which they can't get warrants from it- even retroactively!- it can only be because they're up to no good. End of story. I guess it's time once again to call the wingers' attention to that dangerous radical Ben Franklin's dictum: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."

posted by: Steve LaBonne on 01.18.06 at 12:15 PM [permalink]

Interesting, I want to read the whole article. I paper comparing French and U.S. counterterrorism law this fall for a future colleague of yours at Fletcher. The French have a much longer history of dealing with terrorism going back to the 1950's in the Algerian War.

What I really think distinguishes the French approach from the U.S. post-9/11 approach is its law enforcement approach (as opposed to a 'national security' CIA/DoD approach). That wasn't always the case and the French have gone through a number of different systems, including courts not unlike our military tribunals. They've also done some stupid things, like a long period of 'sanctuary' where they allowed terrorists to operate freely on their soil (so long as they didn't attack French interests).

I believe there is, perhaps, more to learn from the French mistakes over the years and their trial and error in a context which is not unsimilar to ours.

posted by: Matt on 01.18.06 at 12:15 PM [permalink]

Since I've been "haunted" by the thought for a couple years now and kept an eye out for someone else to confirm and formulate it incisively, to no avail, here's an all-points call for response: Beyond the 'protectionism' of their foreign economic policies, hasn't the Bush administration followed or created its own version of the 30's criminal 'protection racket' as exemplified by Louis "Lepke" Buchalter and other underworld worthies who terrorized storekeepers into paying so as not to get attacked? Isn't there a parallel between nurturing a war on terror and then intimidating the American people into acceptance of suspension of constitutional rights by litanizing "to protect the American people" whenever questioned? Whether all the evidence pointing to 9/11 as avoidable suggests a quasi-Reichstag-burning welcoming of that disaster has any truth to it, scrutiny of Cheney's non-convening of his committee to alert us before the fact of 9/11, in concert with Rice's ignoring of denotative intelligence pointing in that direction gives the seemingly incredible a certain credibility. The Reichstag analogy is speculative; the protection racket parallel is explicit.

posted by: Don Skoller on 01.18.06 at 12:15 PM [permalink]

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