Notes on Freedom

Month: November, 2015

November 24, 2015

French ‘state of emergency’: the irrationalities of arbitrary power

The thing that separates a gendarme with a tricolour on his shoulder from a militia member with a gun, is that the gendarme is supposed to represent the law.

The thing that separates a modern state like France from pre-modern or retrograde political authorities is that the French state is supposed to embody rational principles: it acts where necessary to preserve the state of liberty.

Now the French state is responding to a terrorist attack – the embodiement of irrational force – by extending the arbitrary powers of state authorities. As with America and Britain before it, the ‘security’ agenda in response to terrorism amounts to the extension of arbitrary powers as an end in itself.

There appears to be a notion that the more latitude given to police authorities – the more latitude to enact surveillance, to put electronic tags on people, to confine them to residences, to ban events – the safer everyone will be.

President Hollande’s declaration of a ‘state of emergency’ was a performance in reassurance, the gesture of asserting state authority. By extending powers he says: I am in charge, things are under control.

Yet all that has actually happened is that the administrative parts of the state have been unleashed to use their force as they please. For the next three months suspects can be confined to their homes by an administrative order, searches and raids can be carried out without legal authorisation, and local prefects have summary powers to restrict the movement of groups or particular individuals, banning local events or declaring curfews.

‘In another context, I would be the first to condemn such a proceedure’, said the socialist president of parliament’s legal commission. There were some murmurs of dissent but a general view that this was not the time for questioning or for argument. The vote on the enactment of the state of emergency was 551 votes for, 6 against, and one abstention. Such majorities achieved without debate indicate the rubber stamping of administrative edicts not the enacting of laws.

An article on the leftist magazine Rue.89 argued that this amounts to ‘legalisation of arbitrariness’, and noted that ‘state of emergency’ powers were used in the Algerian war to arrest thousands of supporters of Algerian independence and inter them in camps.

The Rue.89 article points out that Hollande’s law allows someone to be confined to their home on the basis of ‘serious reasons to think that their conduct constitutes a threat to security and public order’, a condition which is ‘much vaguer’ that the Algerian war version which targeted ‘activities’ rather than conduct. Which radical political protesters could not be targeted under these powers?

Indeed, a Le Monde investigation of some of the 118 people confined to their homes finds that one man’s fault lay mainly in the fact that he had twice driven a radical Islamic preacher to the airport. The man describes how 12 police officers arrived at his house and said: ‘We have something for you to sign.’ The documents seen by Le Monde included a mix of correct and incorrect facts about the person’s ‘connections’, but were mainly based on the simple assertion that the person represents a risk to national security and is intent on joining jihadist forces in Syria.

‘They are taking people randomly to make examples of them’, said one confined man. Another said ‘They didn’t have anything to write, they charged me for the sake of charging me, to be able to tell people, “look, we’re doing something”.’ The lawyers who accepted these unfavourable cases said that the reasons for confining people to residence were ‘often obscure, or indeed unfounded’, and that the ‘rush to punishment plunges us increasingly in a zone of non-droit where we risk conducting ourselves like our aggressors’.

Now there are parts of France where people live under curfew, or where demonstrations are banned (though some are going ahead in spite of the prohibition). Events that have been cancelled on mayoral order include Lyon’s Festival of Light and Nancy’s festivities of Saint Nicholas.

Yet the French state’s inability to prevent the Paris attacks appears to lie in the failed use of existing powers, rather than for want of new ones. Several newspapers have criticised intelligence agencies’ failure to pick up on movements of the key suspects – many of whom were known Islamic extremists, and not because they once drove an iman to the airport – and indeed authorities were tipped off by an Islamist in August that Abaaoud (the Paris ringleader) had asked him to ‘attack a concert hall’.

The pressures of today are not, in fact, those of the time of the Algerian war. There is no civil war or threat of a coup, and the powers of state are not threatened. Dealing with terrorist action falls within the normal domain of police function. Perhaps the police need different skills, or more resources, but their task remains one of normal police function and not dealing with a crisis of state. Therefore they can perform this task with the normal judicial equipment.

The French Declaration of the Rights of Man and of Citizens provides a ringing statement of the proper function of modern criminal law:

‘The law ought to prohibit only actions hurtful to society. What is not prohibited by the law, should not be hindered…No man should be accused, arrested, or held in confinement, except in cases determined by law… All who promote, solicit…or cause to be executed arbitrary orders, ought to be punished’.

Bien dit!

It is worth remembering that these controls upon state power do not only protect public liberty, but also guide state action towards effective ends. That is, legal protections exist not only to protect the public from arbitrary sanctions, but also to guide law enforcement down rational and effective lines. This applies for the pursuit of terrorists as much as for other areas of public service.

When 12 police officers are employed to deliver unsubstantiated accusations to an innocent person – who then has to report to the police station four times a day, taking their own and officers’ time – this represents the use of state force for a gesture, for the sake of it, which in fact distracts from the apprehension of terrorists or the routing of future attacks.

November 19, 2015

After Paris: the ultimate value of the free life

There is a single response to the Paris attacks which alone is positive and worthy of defence: the affirmation of the value of the free life.

The day after the attacks, people instinctively started to gather in Paris and in towns and cities across France. When asked why, they said ‘to do something, to be with other people’ but most of all, ‘to show them that we’re not afraid’. These demonstrations formed in spite of the prohibition on demonstrations: police asked people to disperse but many refused to go. In Toulouse, thousands of people gathered in the main square in open violation of this order.

People responded to the attack on a city crowd by forming as a city crowd. They responded to the terrorists’ attack on the ‘abominations and perversions’ of modern life, on music, drinking and football, by affirming and seeking out these pursuits.

These ordinary aspects of the free modern life took on a kind of glow and heroism. Parisians posted pictures of themselves drinking outside in cafes and bars under the hashtag ‘JeSuisEnTerrasse’. They sought out the bars of attacked areas as a matter of principle, ignoring the government’s request to only go out ‘if absolutely necessary’. People posted their memories of the Bataclan (MonPlusBeauSouvenirDuBataclan), affirming the glory of music and lights and crowds, while a Charlie Hebdo cartoonist did a series celebrating the Paris of ‘music! kisses! life! champagne and joy!.

Before the England-France football match, the French manager said that after the attacks it might seem that football is an inconsequential thing, unimportant, but that actually it has become vital. The Radio France commentator said that football is the pursuit of a passion, the development of a skill, and the public enjoyment of this: ‘We will continue to go out – to live – to play football’.

This assertion of the value of these things in defiance of the terrorists was also a rediscovering of their value, in a culture that is so often cynical about ‘freedom, modernity, etcetera’. Forms of free culture and association are so often seen as shallow, consumerist, anti-social, polluting: every well-formed political ideology of our age appears to be set against those people drinking in bars or dancing to music. The extreme attacks of the terrorists, their absolute distain, develops out of a thread of culture within the West itself.

The public response shows that the elements of a free life have a universal value which people are willing to fight for. They will go out to bars, concerts and football matches, even if this means to put themselves at risk. They state the value of these things and defend them. Charlie Hebdo will continue to critique and satirise, mocking Islamic extremists (‘fuck them, we have champagne’) along with everyone else, though they are under daily threat.

Most incredibly, such affirmation was found even among some of those directly affected by the attacks, as with the Radio France journalist whose wife was killed in the Bataclan. He wrote a much-shared Facebook post addressed to the terrorists: ‘You would like me to be scared, for me to look at my fellow citizens with a suspicious eye, for me to sacrifice my liberty for my security. Perdu’, he wrote, saying of his 17-month old son ‘all his life this little boy will – in affront to you – be happy and free’. He told Radio France that his wife had had ‘enormous eyes’ and their son was born ‘with both eyes wide open’: the value was in pursuing ‘the difficult path of reflection, of reason’, of living with one’s eyes open, choosing and thinking for oneself.

There is a scene in The Narrow Road to the Deep North where an Australian camp prisoner faces up to ‘the grim strength, the righteous obedience to codes of honour that showed no doubt’ of the camp guard, and ‘could find in himself no equivalent life force that might challenge it’.

People are finding an equivalent life force in free life. However, this public response was notably different in tenor to that of the French government. The French state – as well as being preoccupied with those highly necessary tasks of investigating the attacks, pursuing fugitives, arresting suspects – has also struck another line: the assertion of executive power almost as a point of principle. The immediate response to events was a series of restrictions, which included not only bans on demonstrations, orders to not go out, but also declaring a state of emergency which gives prefects (local representatives of the executive) powers to declare curfews and to ban any event. All school trips have been cancelled as an order of the ministry of education.

At a local level, mayors and prefectures have been imposing restrictions upon daily life. At my son’s school in South-West France there is now a large orange sign on the door, announcing that parents are no longer allowed to enter the school and children must be deposited at the external door. Many of these assertions of executive authority appear pointless, a gesture: a terrorist could push his way past the middle-aged classroom assistant, or indeed merely attack the class of 3-year olds lined up by the external door because their parents have not been allowed to take them to their classroom. In practice, the restrictions imposed ‘against the terrorists’ are being imposed against people trying to gather in the streets or parents trying to enter a school. They are blocking everyday associations and free ways of relating to one another.

Therefore, after Paris we should be for freedom and for the free life – staked against the terrorists, the anti-modern cynics, and pointless assertions of executive power.