The French Emergency

From Algeria to the Paris attacks, French elites have used state of emergency legislation to consolidate power and repress dissent.

French soldiers guarding the Eiffel Tower. Nick J Stone / Flickr

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Shortly before midnight on November 13, in the aftermath of terrorist attacks that left 130 dead and hundreds more wounded, French President François Hollande declared a national state of emergency. Not long thereafter, the Élysée issued a communiqué detailing its provisions, including the warrantless detention and house arrest of suspects, additional border controls, closure of schools and other public places, and expanded powers of search and seizure.

Days later, the government presented parliament with a law extending the state of emergency for an additional three months, beyond the twelve days allowed under initial decree, and updating the existing legislation. On Thursday the nineteenth, the National Assembly voted its overwhelming approval, 577 to 6, with one abstention. The upper house followed suit the following day, 336 voting for and 12 abstaining. Further developments appear likely, as the government has proposed amending the Constitution to formally enshrine the state of emergency, along with other exceptional measures.

A dramatic rhetorical escalation has accompanied this judicial response. Across the spectrum, politicians and commentators aver that France is now at war. Hollande set the tone, declaring from the outset that the attacks in Paris constituted an “acte de guerre.” Standing outside the Bataclan music hall on Friday night, he promised a “merciless” response. Minister of Defense Jean-Yves Le Drian identified the enemy not as an organization, group, or cell, but rather as a “terrorist army.” “We are at war,” affirmed Prime Minister Manuel Valls the next morning, repeating the word nine times in a ten-minute TV appearance. “We must annihilate the enemies of the Republic.” Opposition leader Nicolas Sarkozy concurred, adding that this war “must be total.”

Le Monde and Le Figaro, respective tribunes of political consensus left and right, agreed, the editor of the former speaking of a “war against totalitarian terrorism.” Bruno Tertrais, a political scientist close to the Socialist Party (PS), defended the use of the expression “war against terrorism,” notwithstanding its unfortunate associations with the presidency of George W. Bush. “Just because Bush says the sun is shining doesn’t mean it’s cloudy,” he observed. Had Jacques Chirac not used the same expression in response to a wave of terrorist violence in the 1980s? The homegrown precedent was heartening.

Amidst this chorus some dissident voices have been heard. Tertrais’s colleague Bertrand Badie disputed whether the so-called Islamic State was really a state at all; lacking a proper army and refusing any prospect for negotiation or compromise, it could scarcely be party to a war as classically defined, between sovereign powers. Dominique de Villepin, former prime minister and rival of Sarkozy, for his part denounced the vocabulary of war as a trap that bestowed unwonted legitimacy on the terrorists and at the same time obscured the real nature of the conflict.

Such dissent notwithstanding, the course has been charted. “France,” the president intoned last Monday before a joint assembly of both houses of parliament, “is at war.” Not, Hollande took care to observe, a “war of civilizations,” but a “war against terrorism,” in the context of “terroristic war.” In short, “a new type of war, against a new enemy.”

If the enemy is new, the techniques of state repression are not. The past two decades have seen a proliferation of measures aimed at fighting terrorism. Reactions to the January 2015 shootings at the offices of Charlie Hebdo and the Hyper Casher supermarket only reinforced this tendency, resulting in a new intelligence bill, written into law this July, which introduced expanded surveillance and wiretapping powers. At the center of the latest mobilization, however, is a piece of legislation sixty years old this past April.

Repressing Algeria

The law governing the état d’urgence dates back to the Algerian war of independence, and it owes its existence to the peculiar nature of that conflict. When a nationalist insurrection broke out in the French territories on November 1, 1954, authorities thought existing emergency legislation to be inadequate. The state of siege, transferring civilian powers to the armed forces, was well established in French jurisprudence; however, the left-leaning governments of Pierre Mendès France and Edgar Faure resisted such recourse on political grounds.

In line with their vision of liberal colonialism, the two Radical Party premiers sought to counteract nationalist sentiment by means of social reforms, if possible, rather than military repression. Just as significantly, imposing a state of siege would have risked acknowledgement of the Algerian revolutionaries as legitimate combatants, not mere criminals, in turn suggesting that the North African demesnes were territory qualitatively distinct from the rest of France.

As Interior Minister François Mitterrand clarified a little more than a week after the All Saints’ Day eruption, “those who carry out these attacks against people and property cannot under any circumstances be considered to be military in character.”

War figured centrally in parliamentary debates over the proposed law. Critics of the government on the Right argued that euphemisms — “events,” “peacekeeping operations,” “maintenance of order” — had covered for an unwillingness to recognize the seriousness of the conflict and take appropriate measures in response.

“Algeria is in danger,” asserted the right-wing Christian Democrat Pierre de Chevigné. “It is by waging war, not only militarily but also socially, judicially, and administratively, that we will save it.” Resident minister of Algeria Robert Lacoste, a moderate Socialist turned farouche partisan of Algérie française, would disarmingly clarify that this war “is a total war, waged against an entire population; it is a war waged not only by means of military operations, but also by police operations and a campaign of political propaganda.”

On the Left, references to war functioned conversely to condemn the harshness of French repression. Communists accused the government of carrying out a “veritable war against the Algerian people.” An editorial in L’Humanité, published the day before discussion began in the Palais Bourbon, warned that emergency provisions were not likely to remain confined to Algeria, but would soon be employed in mainland France as well. The PCF, with recent memory of illegality and official repression, was especially alert to the possibility.

Dissension aside, the government had its day. Combat in Algeria would not officially be recognized as war until the fin de siècle. Law n°55-385, promulgated on April 3, 1955, was adopted against Socialist and Communist opposition.

Applied at once to Algeria, it first affected only part of the Constantine region, before being extended throughout the east. By summer’s end, the state of emergency was in effect over the entirety of the territory. Although it would fall out of effect two months later, with the dissolution of the National Assembly, it remained on the books.

The first application of the law in mainland France, on May 16, 1958, took shape in a markedly different context. Emergency measures directed against the fighters of the FLN were now aimed at French settlers and their allies in the armed forces.

On May 13, a demonstration in Algiers — commemorating the execution of three soldiers captured by nationalist forces — had taken an insurrectionary turn when a group of civilian activists and military officers seized the central government buildings. That evening, General Jacques Massu, commander of French forces in the region, appeared before assembled crowds to demand that a national “gouvernement de salut public,” committed to preserving French sovereignty in Algeria, be formed under Charles de Gaulle.

Pierre Pflimlin, invested as premier that same night, wavered in response to this ultimatum. Giving post facto legal cover to the fractious generals in Algiers, he also appealed to a traditional repertoire of republican defense and national unity. On the evening of May 15, in response to a further appeal from General Raoul Salan — commander in chief of French forces in Algeria — de Gaulle issued his first statement, declaring himself “ready to assume the powers of the Republic.” That same night, the government resolved to proclaim a state of emergency for a period of three months.

Extraordinarily, in parliamentary debate the next day, Socialist and PCF deputies unanimously supported the measure. While Gaullists and partisans of French Algeria decried the inevitable curtailment of civil liberties, Communist leader Jacques Duclos cited Saint-Just: “No liberty for the enemies of liberty.” “The state of emergency,” he allowed, “restricts everyone’s liberties. Still,” he asked, “when we are obliged, as is the case, to count on the working class and on the people to defend the Republic, is it not illogical, ladies and gentlemen, to deprive these defenders of their democratic liberties and of the right to exercise this defense?”

Communist MPs voted unanimously in support of the government, and the law passed by an overwhelming majority. Reactions from the party base were less sure. The historian Philippe Robrieux, at the time a leader of the PCF student movement, recalled his disbelief on learning that the leadership would rally to a government which had publicly condemned the party, and a prime minister who had refused to count its voices in acceding to the premiership.

Some recalled the uncomfortable precedent of the March 1956 vote of special powers to the Socialist administration of Guy Mollet. This decision, inspired by solidarity with the Republican Front government and the belief that Mollet would bring peace to Algeria, as well as important social gains, had in fact authorized a dramatic escalation of violence in North Africa and provoked intense disagreement within the party. It left lasting consequences, sources of oppositional currents that would irrigate the fertile ground of anticolonial leftism in the first years of the Fifth Republic.

Rallying to the republic served the Left no better in 1958 than it had two years prior. After a couple weeks of feverish maneuvering, during which Paris echoed with rumors and intimations of civil war, Pflimlin was pressured to resign, opening the way to de Gaulle’s return. Accomplished under circumstances of dubious legality, with parachutists in Corsica and the south of France threatening to descend on the Palais Bourbon, the investiture of the government nevertheless went through, and drafting of a new constitution began immediately.

With Pflimlin’s resignation, the state of emergency was abrogated. De Gaulle, who received a bevy of exceptional powers, did not deem it necessary to maintain the legislation in force. Nor was he, however, indifferent to its utility. Over the following year, as the prospect of negotiations for Algerian independence came into view, military discontent grew increasingly vocal. Having brought de Gaulle to power, some in the army wondered aloud whether he was not charting their betrayal.

Following the violent settler uprising of January 1960, in which parachutists had stood by while pied noir activists killed eighteen gendarmes, the new head of state issued an ordonnance modifying the 1955 law to allow the government to declare the state of emergency unilaterally for a period of up to twelve days, after which time parliamentary consultation was required.

When the law itself had first been discussed, Radical Party Prime Minister Maurice Bourgès-Maunoury characterized it as occupying an intermediary zone between normal civilian administration and the state of siege. By the summer of 1955, however, he acknowledged that the state of emergency conferred on the executive identical prerogatives.

The 1960 reform confirmed this alignment with the state of siege — likewise proclaimed by the council of ministers, likewise valid for a twelve-day period — with the crucial difference that the state of emergency empowered civilian prefects, not military commanders.

Emergency on the Mainland

The April 1960 decision proved prescient. Almost exactly a year later, four senior generals executed a putsch in Algiers. In response, the regime declared a state of emergency in mainland France and invoked — for the first and only time in the history of the Fifth Republic — the unequalled emergency powers afforded by Article 16 of the 1958 constitution. Acting under this dispensation, de Gaulle issued a series of executive decisions two days later, including one that prolonged the state of emergency indefinitely.

Before the law finally expired in May 1963, it would be prolonged three times. France lived under a continuous state of emergency for just over two years, well beyond the signing of the Evian Accords and the conclusion of hostilities in Algeria.

This period witnessed a distinctive, two-pronged coordination of state violence directed against both the nationalist insurrection and the mounting threat of praetorianism and right-wing terrorism. Brutality across the Mediterranean — the systematic use of torture by French forces, massive population transfers and internment camps — was accompanied by an “Algerianization” of the metropolitan home front. Functionaries and police formed by their colonial experience re-imported practices of population control and counterinsurgency.

The bloodiest consequences of this transfer appeared over the autumn of 1961, when Parisian police murdered well over 120 Algerians, leaving bodies to float in the Seine. Scores were killed on the single night of October 17, when a peaceful march, forbidden under emergency powers by a racist curfew (targeting French Muslims), elicited a brutal response from forces commanded by chief of police Maurice Papon.

Erstwhile prefect of the Constantine region, Papon shared the belief that France was waging a new form of war; in the words of one of its theorists in the army, this conflict could not be fought “according to the Napoleonic Code.” Months after the October massacre, official violence again shook the capital when police attacked a February 8, 1962 protest against bombings orchestrated by the right-wing terrorist Secret Army Organization (OAS). Although the march was forbidden by Papon, acting on orders from the government, corteges formed at surrounding metro stations to advance to Bastille. They would not get the chance.

At the intersection of Boulevard Voltaire and Rue Charonne, a group of demonstrators was cornered by two companies of police which, after a peremptory order to disperse, charged into the crowd. In the ensuing melee, dozens of protestors were forced into the entry to the Charonne metro, bludgeoned by officers. When it was over, nine — all but one Communists, and all members of the party-affiliated trade union (the CGT) — were dead, either beaten or suffocated.

As with the murder of Algerian demonstrators the preceding October, the violence at Charonne represented not a sudden break with normal policy, but the reasoned outcome of political and strategic decision-making. Of the fourteen police commissioners present for the October 17 demonstration, thirteen were on duty on February 8. Behind the delirious behavior of individual police lay a generative matrix of colonial warfare, anticommunism, and obsessive concern for the security of the state.

Political elites were also shaped by these forces. The same paradoxical logic that presided over the crackdown on the FLN Fédération de France governed reactions to the anti-OAS campaign: if the government repressed the communist-led protests against the OAS so ferociously, this was because it was preoccupied with retaining the support of the armed forces — not least in its struggle to retain their sympathies for mobilization against the OAS itself — for whom anticommunism remained a great unifying force.

At the very moment that terrorist violence employed by colonialist settlers and their supporters was reaching its apogee, then, governmental logic dictated that maximal violence be turned against their left-wing opponents.

Perfectly encapsulating this perverse dynamic, Interior Minister Roger Frey delivered a televised address on February 10 in which he denounced two sources of subversion. “The events [of February 8],” he observed, “prove once more the collusion of extremes against the Republic.” Faced with an existential threat of “political subversion,” any threat to public order could only be seen as itself an additional form of subversive activity.

It would be another forty years before the state of emergency again took force in France. In the interim, its legitimacy was affirmed by the Socialist government of Laurent Fabius, which applied the law in 1984 to the French overseas territory of New Caledonia, with the purpose of facilitating repression of the Kanak independence movement. Contested at the time by the right-wing opposition and the Communists, this episode all the same demonstrated the bipartisan appeal of the legislation.

When Prime Minister Dominique de Villepin announced recourse to the law in 2005, following two weeks of revolt in the Parisian banlieus, its colonial history had not been forgotten. Unrest over discriminatory policing and harassment in the impoverished suburbs had been catalyzed by the deaths of two French teenagers, electrocuted while seeking refuge from police pursuit in an electrical substation.

Belligerent comments by Interior Minister Nicolas Sarkozy, who boasted months earlier of “cleaning up” the area with a pressure washer and now denigrated the rioters as racaille (trash), further aggravated matters. Villepin avoided mentioning the “state of emergency,” referring more obliquely to the “loi de 1955.”

The relevant decree, put before the council of ministers by President Jacques Chirac, limited the scope of exceptional powers to twenty-five départements, including the region surrounding the capital. Exercised to impose curfews, a power already invested in municipal authorities, and to forbid public gatherings in Paris and Lyon, the 2005 state of emergency served little practical purpose. Villepin himself spoke of the desire to create a “shock” effect, and speculation focused on his political rivalry with Sarkozy, styled as a hard-line advocate of law and order.

If the colonial echoes of the law aroused denunciation on the Left, they did not dampen public approval; some three quarters of those surveyed voiced their support for the measure. Challenges to the legality of the November decision maintained that the threat to public order — a condition for the law’s application — had been overstated. These were rejected in December by the Conseil d’État, which nonetheless envisioned a proximate end to the emergency in view of changing circumstances.

Since 1999, the French state has officially recognized that its military operations in Algeria constituted a war. But the ambiguity of that conflict has left an enduring imprint on the state apparatus. The decade spanning the dissolution of the Soviet Union and the New York attacks of September 11, 2001 witnessed a rejuvenation of French thinking about counterinsurgency and counterterrorism.

Persistent unrest in the banlieus, coupled with military intervention in the Middle East and domestic repercussions of the Algerian civil war, inspired fresh reflections on the “enemy within.” No longer the Communist militant or anticolonial revolutionary, this figure took on a distinctively deterritorialized, racially marked form: the immigrant and the Islamic terrorist now loomed as the gravest threats to national security.

Debates over Vigipirate, an anti-terrorist initiative conceived of in the late 1970s and continuously in effect since January 1991, underscored the connection between immigration and terrorism. Amalgamation of the two phenomena similarly appeared in the context of proposed reforms to French nationality law, and controversy surrounding the supposed danger posed by dual nationals.

Enemies Within

Today, reminders of this history are omnipresent. In his November 14 appearance on TF1, Valls did not hesitate to summon the menace of the ennemi intérieur. He likewise refused to rule out the possibility of establishing internment camps to house those suspected of terrorism. This eventuality, although explicitly prohibited under the 1955 law, was realized to barbaric effect in Algeria.

Laurent Wauquiez, leading figure of the parliamentary right, first revisited the notion, introducing a slight variation to Duclos’s line from Saint-Just. “There is no liberty,” he declared. “for the enemies of France and the Republic.” General Vincent Desportes, former director of the École de guerre, adopted an American idiom popularized by the country and western singer Chris LeDoux: “Freedom isn’t free.” “It must be paid for somehow,” Desportes added, “precisely by restricting liberties. This is the state of emergency.”

So far parliament has agreed. Bellicosity prevailed in the Palais Bourbon Thursday, and a rhetoric of macho hyper-violence took hold even of hitherto doveish Socialist MPs. “We need our Battle of Stalingrad!” exclaimed PS deputy and former president of SOS Racisme Malek Boutih, as Valls spoke again of war and asserted that “security is the first of our freedoms,” parroting a familiar slogan of the far-right National Front.

The modalities of the emergency law, specified by two decrees dated November 14, include heightened security measures, especially in public places, schools, and transport hubs, and limits on the movement of people and vehicles. In the Île-de-France area police have been empowered to conduct warrantless searches, assign suspects to house arrest, and ban public gatherings.

Historical precedent abounds, but so too do elements of novelty. Several modifications mark a departure from the 1955 text. Notably, constraints on the procedures for house arrest have been slackened: whereas Article 6 of the law originally referred to the detainment of those “whose actions pose a danger to security and public order,” the recent legislation instead concerns anyone “with respect to whom there exist serious reasons to think that his or her behavior constitutes a threat to security and public order.”

Those detained may also be tagged with electronic monitoring devices, a longstanding demand of the right, endorsed in parliament Wednesday evening by a number of Socialists. Philippe Gosselin, right-wing stalwart of Sarkozy’s Les Républicains (LR), saluted a sign of “intelligent progress” in this bipartisan initiative. “We have won the culture war!” he exulted.

A corollary decision, favored in the same quarters, has granted police officers and gendarmes the right to carry their weapons even when off duty. Searches are no longer limited to the homes of suspects, but extend to any locale they are known to frequent — restaurants, cafes, places of worship.

Additional refinements have updated the law for a digital age, including a wide remit to scour data accessible from personal computing devices. Punishment for violations has also been dramatically reinforced, from a penalty of up to two months in prison and a €3,750 fine to up to three years imprisonment and a fine of €45,000.

Other amendments to the law attenuate some of its repressive features. Censorship of radio and the press, which played an important role during the war in Algeria, has been ruled out, seemingly on grounds of practicability — given the proliferation of new media — rather than principle. The offices of MPs, lawyers, judges, and journalists are excluded from police searches, although a proposal that would have afforded similar protection to their private residences was rejected.

Increased judicial oversight has also been introduced, and the procedures allowing citizens to contest their treatment under the law simplified and strengthened. What significance these decisions will have remains to be seen.

In addition to amending the 1955 law, the government has expressed its intention to seek a constitutional revision to formally consecrate the state of emergency, including it alongside the state of siege under Article 36. Proposed among a slew of other reforms in the 2007 report of the Balladur Committee, this alteration is essentially technical in character.

More controversial is talk of revising French law to allow dual-nationals born in France to be stripped of their citizenship, in contravention of Article 25 of the civil code. When Sarkozy reopened this longstanding fixation of the Right in the wake of the January attacks, Interior Minister Bernard Cazeneuve objected that it would constitute a violation of the European Convention on Human Rights. Concerns are now brushed aside.

Meanwhile, the forces of order have already undertaken hundreds of raids and administrative detentions, and strikes planned by Air France employees and Paris hospital workers called off. The assault Tuesday on a squat in Lille, conducted by the elite counterterrorism unit of the national police (RAID), encouraged fears that expanded powers will affect targets unconnected to the putative terrorist threat, a prospect confirmed days later by a wave of repression in the Nord Pas-de-Calais targeting drug dealers and petty criminals.

Operation Sentinelle, put into effect following the January attacks of this year, mobilized some seven thousand soldiers, the equivalent of two army brigades, mainly tasked with guarding public places in and around the capital. For this campaign, as the journalist Jean-Dominique Merchet has observed, “Bataclan was another Sedan.”

Hollande now declares it is his intention to recruit five thousand more police and gendarmes in the coming two years, an unlikely target given the limits of available resources and training facilities. Plans for reducing army troop strength have been put on hold until 2019; in the last week, demands to enlist are reported to have tripled.

Rhetorical intensification notwithstanding, France in fact has been continuously at war for some time. Four overseas military operations (Opex) have been launched in as many years: Libya, Mali, Central Africa, Iraq. Beset by personal humiliation and catastrophically low approval ratings, Hollande has embraced his role as commander in chief, relaying the baton of his predecessor.

Against a backdrop of crisis and diminished economic power, France more and more looks to its armed forces as warrant of international prestige. In reaction to recent events, the Socialist government has dared for the first time to declare its willingness to violate the European austerity regime, with the president proclaiming that security must take precedence over stability. The UN Security Council and the EU have rapidly acceded to French requests for support in its campaign against ISIS.

The conjunction of anti-terrorism measures at home and open-ended warfare abroad has invited comparisons with the US response to the September 2001 attacks. An unpopular president surrounded by a powerful, ideologically motivated retinue of advisers, opting for domestic repression and foreign adventurism, in each case animated by the exigencies of a “war against terrorism.”

Hitherto France has been relatively reticent on both counts. In the above-mentioned instances, “invitation” to intervene militarily was secured from local authorities. Syria, where France began conducting airstrikes two months ago, is an exception: juridically, ISIS is recognized as a territorial state, with borders encompassing parts of Iraq and Syria. Fighters who return to France are in principle subject to domestic law; unlike in the US, there has so far been no full-scale elaboration of an alternative legal regime for those accused of crimes relating to terrorism.

As the country enters its second week of emergency, public support for the government remains high. Preliminary polls suggest that Hollande’s Socialist Party may well capitalize on disaster, and the gelatinous president, his popularity reaching historic lows in the months before November 13, could emerge rejuvenated.

But contraindications have also appeared. A rally on Sunday in support of immigrant rights, planned well in advance of the attacks, went forward despite official prohibition on gatherings in the capital (prolonged through the end of the month). Some five hundred demonstrators, marching from Bastille to République, transformed their act into a protest against the state of emergency itself, and chants echoed of “état d’urgence, état policier!” Reports indicate that fifty-eight of the participants, identified by the police, are now facing prosecution.

Paris has announced that protests scheduled to coincide with the COP21 international climate talks, held the weekend of November 29, will also be banned. How authorities react to flouting of this decision will furnish an index of future repression.

The Means of War

For the time being, a spirit of militarist nationalism promises to abide. Retaliatory airstrikes on Raqqa, the Syrian city ISIS claims as its capital, swiftly followed the massacre in Paris. Rafale and Mirage jets flying out of bases in Jordan and the UAE have been joined by those based on the Charles-de-Gaulle aircraft carrier. Now deployed to the eastern Mediterranean, the vessel was previously a centerpiece of the French contribution to NATO’s war in Afghanistan, staging Dassault Super-Étendards and Mirage 2000s in the service of Operation Enduring Freedom.

Sixty years ago, the French state of emergency was devised to wage a guerre sans nom. For those who superintended it, war was unavowable. Today the nation’s political class speaks of little else. The doomed, bloody counterinsurgency in Algeria nonetheless possessed a clearly articulated aim and even a vision of history: to defend French sovereignty in Africa, reconfigured so as to secure a national role in a post-imperial world.

At the time, French theorists of modern warfare favored an inversion of Carl von Clausewitz’s famous dictum, attributed to Lenin: politics as the continuation of war by other means. By comparison, France’s wars of the twenty-first century are remarkable for their strategic incoherence, amply on display in the Middle East: alliances with reactionary monarchies in the Gulf, enablement of a revanchist right in Israel, opportunistic support for authoritarian regimes in Iraq and Syria, collaboration — admitted or implicit — with disastrous American offensives in the region.

Under the sign of emergency, France’s present war invites another variation on Clausewitz, coined as French divisions crossed into Iraq in 1991: not war as politics or politics as war, but war “as the continuation of the absence of politics by other means.”

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