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Martial Law Légère, or a State of Light Emergency
In the wake of Friday’s attacks, French President François Hollande declared a state of emergency. Or at least, l’état d’urgence has been widely translated as “state of emergency,” but this misses a few nuances. Let me explain what it means, as best I understand. The state of emergency measures were put in place in 1955, during the Algerian war, and designed for use in “cases of imminent danger resulting from serious breaches of public order, or in case of events threatening, by their nature and gravity, public disaster.” The emergency state we’re in right now isn’t as vigorous a form of martial law as the French constitution, in principle, might allow, so a better translation might be “a state of light emergency.”
The measures give the authorities the right to set curfews, limit the movement of people, forbid mass gatherings, establish secure zones where people can be monitored, and close public spaces such as theaters, bars, and museums. They give more powers to the security services and police, such as the right to conduct house searches at any time without judicial oversight, enforce house arrest, and confiscate certain classes of weapons, even if held legally.
This is France’s third State of Emergency since the 1961 generals’ putsch. The first was declared in 1984 during violence in New Caledonia; the second — extended by Parliament for three months — was introduced by then-president Jacques Chirac during the 2005 riots in the Paris suburbs.
But the last two were local; this one is nationwide. It can’t be extended beyond 12 days without the approval of the Parliament, but addressing the National Assembly and the Senate yesterday, Hollande declared his intention to submit a draft law to the Cabinet to extend it for three more months. He also proposed amending Article 16 of the French Constitution, from which the State of Emergency laws derive.
According to Article 16, the President is entitled to Pouvoirs exceptionnels — exceptional powers — in exceptional cases, leading to a “state of exception.” To wit, in the event of imminent peril resulting from a war or an armed insurrection, the President may evoke Article 36 — the real state of emergency:
Article 36 (état d’urgence)
Martial law shall be decreed in the Council of Ministers.
Its extension beyond twelve days may be authorized only by Parliament.
That’s the whole ball of martial law wax, there. You get all the emergency powers and more. You can ban people from leaving their homes; take “all measures” to control the press and radio; military authorities may assume police powers; the state may arrogate to itself the power to expel people who have been condemned for common law matters or people who do not have the right of residence in the territory, and so forth. It’s never been used (at least, not since the Constitution of the Fifth Republic was drafted.)
So right now we’re under martial-law-light, though the constitution allows for martial-law heavy. But these aren’t quite the powers Hollande wants. These laws are “no longer adapted to the situation we face,” he said. “We are at war,” he said, but “this war, of another type, calls for a constitutional regime that can manage the crisis” — manage it without sending every last civil liberty down the drain, one hopes.
By the way, no matter how many times Hollande says, “We are at war,” according to Article 35 of the French constitution, the right to declare war belongs to the French Parliament. That said, the Charles De Gaulle is en route to the Persian Gulf, and someone, clearly, authorized the strikes on Raqaa. It was not the French Parliament. So we are at undeclared war.
Hollande holds that Sections 16 and 36 of the Constitution do not correspond “to the terrorist threat facing France at 2015.” Thus the Elysée is considering a “civilian crisis regime to implement exceptional measures.” This would update the state-of-emergency law on confining individuals to their homes, on search and seizure, and permitting the president to take exceptional measures without resorting to a state of emergency. Hollande also suggested enacting a law that would revoke French citizenship from anyone linked to terrorist attacks, but offered no elaboration about how this law would be applied.
I’m studying this carefully, as you can see, trying to figure out what he’s suggesting, whether I think it’s wise, and whether I now enjoy — on paper at least — greater or fewer rights than I did during my last experience of living under a civilian government with martial-law features. I think I’ve still got more, but I’d have to study it more closely before concluding.
But this is a preamble; I know French constitutional law is probably not your foremost concern. I just wanted to introduce, in case any of you missed it when he wrote it, David Foster Wallace’s 2007 essay, “Just Asking.”
Are some things still worth dying for? Is the American idea (1) one such thing? Are you up for a thought experiment? What if we chose to regard the 2,973 innocents killed in the atrocities of 9/11 not as victims but as democratic martyrs, “sacrifices on the altar of freedom”? (2) In other words, what if we decided that a certain baseline vulnerability to terrorism is part of the price of the American idea? And, thus, that ours is a generation of Americans called to make great sacrifices in order to preserve our democratic way of life—sacrifices not just of our soldiers and money but of our personal safety and comfort?
In still other words, what if we chose to accept the fact that every few years, despite all reasonable precautions, some hundreds or thousands of us may die in the sort of ghastly terrorist attack that a democratic republic cannot 100-percent protect itself from without subverting the very principles that make it worth protecting?
Is this thought experiment monstrous? Would it be monstrous to refer to the 40,000-plus domestic highway deaths we accept each year because the mobility and autonomy of the car are evidently worth that high price? Is monstrousness why no serious public figure now will speak of the delusory trade-off of liberty for safety that Ben Franklin warned about more than 200 years ago? What exactly has changed between Franklin’s time and ours? Why now can we not have a serious national conversation about sacrifice, the inevitability of sacrifice—either of (a) some portion of safety or (b) some portion of the rights and protections that make the American idea so incalculably precious?
In the absence of such a conversation, can we trust our elected leaders to value and protect the American idea as they act to secure the homeland? What are the effects on the American idea of Guantánamo, Abu Ghraib, PATRIOT Acts I and II, warrantless surveillance, Executive Order 13233, corporate contractors performing military functions, the Military Commissions Act, NSPD 51, etc., etc.? Assume for a moment that some of these measures really have helped make our persons and property safer—are they worth it? Where and when was the public debate on whether they’re worth it? Was there no such debate because we’re not capable of having or demanding one? Why not? Have we actually become so selfish and scared that we don’t even want to consider whether some things trump safety? What kind of future does that augur?
FOOTNOTES:
1. Given the strict Gramm-Rudmanesque space limit here, let’s just please all agree that we generally know what this term connotes—an open society, consent of the governed, enumerated powers, Federalist 10, pluralism, due process, transparency … the whole democratic roil.2. (This phrase is Lincoln’s, more or less)
What do you think?
Published in Foreign Policy, General
I won’t die for an idea, but I will die for my home.
Then again, as Patton said, the object of war is not to die for your country, but to make the other bastard die for his.
This is a slippery slope and should be resisted. If you look at history, too-powerful governments have been just as deadly (more deadly in many cases) to their people as foreign enemies. Freedom lost may be gone for a lot longer than initially thought.
I love David Foster Wallace’s books, Infinite Jest being particular favorite. But a couple of points:
And, sadly, Wallace took his own life a year later. So with all due respect to his writing, which I love, this tired re-hash of Things We Might Sacrifice isn’t up to snuff. It is a discussion worth having, but sell that one, now, to the people of Paris. See what kind of response you get from grieving family members.
“Undeclared war” is a very nebulous term. An American President has always had the authority to respond to an emergency with armed force, and he’s often been, through our history, the one to define the emergency. The War Powers Act explicitly authorizes the President to go fight for a period of time, by the end of which he’s required (in theory…) to ask Congress’ permission to continue–but that’s not a requirement to ask Congress for a declaration of war. Does not a French President have similar authorities?
As I understand it, too, France’s borders have not and were not closed as was widely reported (even hysterically so by that luminary Geraldo Rivera) at the time. Schengen was suspended, border checks and a requirement for passports were implemented.
To your question: it’s the nature of social compacts that some fraction of inalienable rights are ceded to a government in order to have a mechanism for preserving those rights (and duties…) in the individuals in whom they’re endowed. Our government has screwed that up on occasion, corrected the matter on occasion, even explicitly withdrew one such right–as authorized by our social compact–habeus corpus–in limited form, and then restored that when the emergency had passed.
Those, even today, tend to be exceptions, though, especially in contrast to societies for whom rights are what government, however benevolent, says they are from time to time: such governments routinely get all of that wrong.
We started down the slippery slope with Herb Croly, Teddy Roosevelt, and Woodrow Wilson, and accelerated with FDR, and got even worse with Barack Obama and Hillary Clinton.
Have we actually become so selfish and scared that we don’t even want to consider whether some things trump safety?
That’s a risk of all societies. It was a risk at our founding, too, when roughly a third of the colonists didn’t pick a side: either out of not knowing who was right, or out of venal wait-and-see who’s winning and profit from that, or out of rank cowardice, or….
The American idea is unchanged, and it’s still worth dying for, still worth heeding Franklin’s warning over. And we’re starting to: the successes in the last three elections, the potential next year, the discussions that are rampant, of which Ricochet’s are only a subset, are clear indications of that.
It’s always going to be a struggle. We haven’t lost until we’re dead. Or we surrender.
Eric Hines
Claire,
This will be interesting to watch. France already has the power to revoke citizenship under Article 25 of the Code civil: Article 25, but my reading of it is that it applies only to those who have acquired French citizenship through naturalization, i.e. dual nationals.. It also seems pretty broad in scope, again my imperfect French interpretation reads it as meaning a person convicted of a crime “contrary to the fundamental interests of the nation” at home or abroad can face revocation. Do you suspect Holland might be positioning to extend these provisions to non dual citizen French nationals? If so that raises a number of interesting questions as to what happens to them with no easy answers. When I worked for a Member of Parliament during the Conservative Government in Canada I worked on legislation to revoke citizenship from those convicted of terrorism and espionage, it became law, but with the UN Convention on the reduction of stateless persons in mind, it could only apply to dual citizens. Do you think Holland would consider withdrawing France from the UN convention? If he did, I think it might be precedent setting. As for martial law light, I suppose it’s all in the application, and the nature of the government that uses it is crucial. If you don’t trust the intentions of any leader you may elect managing such a law, don’t elect them in the first place, or get that law off the books stat.
Yes.
I don’t know; so far it is very vague.
I would be quite surprised.
To some extent, yes. But I’ve increasingly come to believe that however civilized the people, laws that allow uncivilized behavior will, inevitably, be abused. It won’t be as bad as Turkey, I don’t think, for cultural reasons; but the laws on paper do matter — especially in a country that takes “rule of law” as seriously as France does.
Right now, French trust in their political class is exceptionally low. According to a Guardian/ICM survey, which was probably concluded with reasonably up-to-date polling methods, the lack of trust in government in Europe is greatest in Poland and France, where distrust outweighs trust by a net 82 percentage points. In France, the net negative score is 78 points and in Germany 80 points. This is dangerously unhealthy, under the circumstances. I’ve yet to meet a French person who feels enthusiastic confidence in the government’s competence, honesty, or good faith.
One big question is whether the French government will try to apply the provision about complete state control of the press and radio to the Internet.
A government exercising “complete control” over the Internet sounds an awful lot like North Korea or China.
Agreed strongly. We’ve been assured that they will not, but this is quite different from knowing that they cannot.
I suspect that should it happen it will be more subtle — sites will disappear, or redirect to police sites warning what happens to people who look at the wrong kind of site, but the chilling effect is such that even I, as a journalist, am afraid of looking up obvious things — such as what’s happening on jihadi sites in France — for fear of attracting attention. I can’t be the only one.
Miss Berlinski, my concern is that M. Hollande was not elected to deal with the problem of terrorism; I am unsure as to public expectations of his foreign policy intentions. I suspect, the public did not care much about Mali either way–you perhaps can say something more about how the French public thought about that & whether it has changed public sentiment at all; so also regarding Libya; I would have liked to see the political class & public responses to a serious war effort in Syria when he said, in effect, he wanted war in Syria.
So that the political awareness is that there should not be a political answer. The security concern & the modern state conspire to turn everything into a question of administration & have lawyers figure out how to appease whoever can be appeased, whether the public, the magistrates or the politicians. That is leadership; that is realism; it is the wisdom of temporizing.
Exercising emergency powers depends on understanding the emergency–whether the president has decided what it is prudent to do most urgently & whether he believes he can persuade the people to follow his lead. I assume M. Hollande wants to avoid change.
I assume the people are passive–I expect all of humanity to be on display in this terrible situation–so many dead & wounded, such shock–but I do not expect either the parties or anyone claiming to represent the people to declare for or against a specific policy–that is, going to war.
I really wish we would go back to that quaint old custom of Legislatures declaring war. That seemed to work so much better at least in the US.
It probably won’t take many successful attacks like this one to change enough peoples’ attitudes, resulting in more public acceptance of NSA-style monitoring.
If President Obama had those powers, we know who he would use them against.
France suffers from the same malady as America, in that they have had it too good for too long. The population that lived under the repression of occupation is too small and too old to be politically effective. It’s too easy to say, “These are dangerous times.”
One place where we differ is the domestic use of the military. Soldiers in our streets are rare events, reserved for disaster relief and always the state National Guard. (And after Kent State there’s still trepidation in using them as a police agent. That and Posse Comitatus Act.) And it’s not just the Black Lives Matter movement that has a problem with modern militarized police forces.
I resist the temptation, however, to say “If we do ‘X’ then the terrorists have won.” No, that’s infantile. If you’re living under Sharia, paying dhimmitude and adhering to local Imam… THEN the terrorists have won. Because that’s their one and only goal.
The occasional suspension of civil rights, which probably won’t be frequent, is the small cost we gladly pay in order to be a welcome haven for the pitiful refugee.
Claire,
As I was just saying on another post.
This is why the President is so wrong about not naming the enemy. If radical Jihadism is recognized as the disease then we can preempt it without destroying the civil rights of the entire society.
The powers of your French Martial Law Light seem more than adequate to the situation as Martial Law Heavy is really for a full-scale invasion. The question is how long do the authorities wait when a confirmed radical violent Jihadist is identified. I think you could make up a differential diagnosis for this type of Jihadist that would be more statistically compelling than most disease diagnoses.
Drone strike v. Carpet Bombing. I thought that’s what the smart diplomacy guys liked.
Regards,
Jim
And we already saw who President Bush used his new powers against. (It was us, not the perps.)
Ah, but there’s another question: Where will you die for your home?
The Jihadists are willing to leave their homes in order to die for their homes. They take the battle to the enemy.
Very few Westerners are willing to do the same. They’ll send other people’s kids abroad to die, but aren’t willing to go abroad themselves.
Of course, and at the risk of once again harping on about demographics, this makes a heck of lot of sense when one considers that the West has an aging population with a dwindling supply of military-aged men.
I have to recognize my own hypocrisy on this point. It’s not like I’ve made any appointments at the local armed forces recruiting office.
On the other hand, if my country’s leader went on tv and said, “our plan is to take expel ISIS from Iraq, Syria, and Turkey, and we need every able-bodied person to sign up for military service in order to make it happen,” I probably could be convinced. That call has not gone out, and I ain’t willing to risk my life for a weak, milquetoast bunch of leaders.
Sarcasm is a dangerous art on the interwebs….
You could call it State of Light War, too. Does Israel have to declare war every time it responds to rocket launches and stabbings? Dealing with terrorists in our midst and their sponsors is a very different proposition than the concept of war powers with traditionally envisioned state actors — not the least of which is the difficulty of determining how and when such a war comes to an official conclusion, even if the precipitating event is clear. In this regard, one of the unique things about ISIS, in comparison to other terrorist networks, may be that it actually lays claim to statehood, which has interesting implications.
As for:
Better find another metric, because that conversation ain’t happening. If there’s one thing Americans don’t talk about in public, it’s triage. And even if we approach it in the abstract, no politician is ever going to put a number on how many/whose lives constitute an acceptable risk/sacrifice. Indeed, is it even possible to answer this question reliably in the abstract? I can certainly tell you what I hope my own tipping point might be, but I’m as likely to be tested in ways I can’t envision as those I can. Will I be one of those who proves to have the physical courage of my ideological convictions? At what point would I take up arms against my own government? There’s no “just asking” such questions.
I am picking a nit here, but “common law” is a term of art in the English speaking nations. I am given to understand the the concept does not apply to what we call “civil law” jurisdictions. “Common law” derives from the unductive reasoning used by judges. “Civil law,” tends to reason deductively.
Sure there is. We ask those questions when we talk about what sort of safety net we need, and how much safety regulation we need. Some people will say that even if it saves one child, it is worth instituting a totalitarian government and spending ourselves into oblivion. Others will beg to differ, and will be denounced for it.
I disagree. “Just asking” is associated with non-serious questions or with attempts to minimize backlash from asking unpopular questions.
Serious questions are just that, and they need no modifier.
Eric Hines