- Interview by
- Harrison Stetler
In recent years, France has seen a flurry of measures reinforcing police powers at the expense of civil liberties. Key in this regard have been laws originally designed to confront petty criminality or terrorism, as after the 2015 Bataclan attacks, but then normalized and systematically used to repress protests.
It was in this vein that France’s “sanitary state of emergency,” introduced in March 2020, made policing a cornerstone of public-health policy at the very moment that Emmanuel Macron’s government was introducing authoritarian measures like the “global security law.” While the Constitutional Council has censured some of this legislation’s most controversial elements, it is still squarely aimed at shielding police from scrutiny by protestors, journalists, and civilians.
Raphaël Kempf is a criminal defense attorney in Paris. In his work, he has defended protestors, activists, and individuals charged with “apology for terrorism,” and he is currently representing one of the defendants in the trial surrounding the 2015 Paris attacks. A champion of civil liberties, Kempf is also author of Enemies of the State, a book that turns back to an earlier period of encroaching authoritarianism — the anti-anarchist laws of the 1890s — and points to its connections to the present.
Jacobin’s Harrison Stetler spoke to Kempf about French policing, Emmanuel Macron’s “securitarian” agenda, and their roots in the exceptional security measures of France’s past.
In mainland France, at least, the most restrictive “sanitary state of emergency” measures came to an end in June. How have the prerogatives the state has been granted during the pandemic changed the overall architecture of police powers?
The government introduced the sanitary state of emergency in March 2020, at the start of the pandemic. From the beginning, the choice to implement a state of emergency was highly telling. It reveals a certain government mindset and a certain way of imagining the relationship between the police and the population. In the context of a real crisis, the French Republic did not know how to respond other than through an exceptional legal regime giving more powers to the police.
For me, this reflex in favor of adopting emergency powers is part and parcel of contemporary French history. The state of emergency framework was created in 1955 as the Fourth Republic faced the onset of the Algerian people’s uprising for independence from the French colonists. The government wanted to react to what we prudishly called “The Events” without having to turn to the “state of siege” — an exceptional legal framework that can be traced back to the nineteenth century. In English, you’d call it martial law.
Declaring a state of siege would have amounted to recognizing that we were at war with a foreign power — implicitly recognizing that Algeria might be considered an independent nation. So instead, the French Republic invented the so-called state of emergency, granting exceptional powers to the police and the prefects [delegates of the central state in each département] on the basis of suspicion toward certain individuals, not on the basis of actually committed acts.
The Republic has employed the state of emergency on several occasions — notably in 2005, when the banlieues revolted following the death of two young men caught in a police chase. Then there was the state of emergency declared the night of the Bataclan attacks in November 2015.
In concrete terms, the sanitary state of emergency allowed the police to search and demand the papers of any person in public space, without having to give any reason why. From March 2020, we were in a completely unprecedented situation, when it was outlawed to leave your home except under certain circumstances stipulated by law. To justify doing so, you had to provide a form to explain why you were outside. This meant that anyone in public space was potentially committing an infraction.
Before, this was not possible. However, unfortunately, there were situations in which the police could search people during a specific time frame and geographical space — for instance, allowing excessive police raids against undocumented migrants.
These total police powers were not just unprecedented but entirely arbitrary. The police didn’t have to justify why they decided to search one person and not someone else. For example, they didn’t have to specify why they stopped a young black man in the 18th arrondissement of Paris rather than an elderly white man in the 16th arrondissement.
From the beginning of the lockdown, I think there was a choice to specifically target working-class and ethnically diverse areas of cities like Paris. This responded to the logic that these neighborhoods would be less capable of respecting the lockdown rules. In the governmental imaginary of the French state, there is an implicit racial bias against certain populations.
In your legal practice, did you work with people particularly targeted by these new measures?
Indirectly. The problem is that a lawyer intervenes when someone wants to challenge a fine that they’ve been given because of the lockdown. To contest this fine, you need to hire a lawyer, which will often be much more expensive than the €135 cost of the penalty itself, and the litigation will lead to a long series of proceedings.
However, I did have the opportunity to deal with certain cases related to “repeated lockdown violators” — i.e., people accused of breaking the rules on at least four separate occasions in one month. That meant that at four separate points, a police officer decided that the individual did not have the right to be out on the street. Again, these decisions were made in an entirely arbitrary way: consulting the document that you had on hand, the police officer would decide if you had the right to be outside at that moment.
We need to remember that a legal rule gives police a margin of maneuver, and the police exploit this margin to act arbitrarily. I think we might even postulate a universal axiom: the police act at the margins of the law, in the gray zone between the legal and the extralegal. It seeks always to push up against the law’s limits.
Take, for example, the lockdown violations. When an individual is reprimanded, how do we know if they have potentially broken the rules on four separate occasions within a month? You need to have some sort of record to keep track of these violations, but there wasn’t yet any specific mechanism for that. Police records are a form of personal data, which implies an infringement of an individual’s private life, so it must be regulated by law. The police don’t have the right to take records of personal information without respecting certain legal conditions.
One such record is exclusively used to keep track of people who violate highway rules. At the beginning of the lockdown, the police decided — with Interior Ministry approval — that all lockdown violations would be tabulated in this record. A group of lawyers realized what was being done and said that this created a problem. And so, the government issued a decree authorizing the police to use this record. This is a textbook example of the axiom: the police take powers that are outside the law, and then ask that the state legalize the powers they already took.
Have we ever seen a comparable inflation of criminalization in France?
To respond, I’d need precise data and statistics, and to set criteria in terms of the number of infractions during a precise period. That said, there have been several moments of punitive inflation in recent French history. For example, just before François Mitterrand arrived in power in the early 1980s, there was the Security and Liberty Law. This law, passed at the behest of [1974–1981 president] Valery Giscard d’Estaing, was widely criticized by the legal corps (lawyers, judges, magistrates, etc.).
This measure legalized searches and controls of identity papers. In the aftermath of 1968, the police had developed a practice of arresting swaths of young people and students who were grouped on the streets before protests, bringing them to police stations before finally releasing them at night. The state did this to limit the amount of people who could go to protests, and it was completely illegal. So again, we see a practice at the margins of legality, then being legitimized by the government through a law.
There are several other crucial episodes as well. A law on “everyday security” was up for debate in 2001 when the New York attacks took place. The then Socialist government decided to add articles pertaining to anti-terrorism, authorizing the police to randomly search citizens’ bags and vehicles. Also extremely worrying, and revealing, is that laws that were intended to last two years and be limited to serious infractions were ultimately made permanent. This is a classic element of “exceptional” laws. These new powers were eventually used by the police in the repression of the gilets jaunes.
In 2010, Nicolas Sarkozy’s government passed a law that specifically penalized the intention to commit violence in a group, which was again used massively in the police response to the gilets jaunes revolt and against the students at the Arago High School in Paris in 2018, a landmark in the police and judicial repression of social movements.
In this long history of penal inflation and of France’s state of emergency legislation, does the sanitary state of emergency mark something new?
There was an inflation in the sense of extra infractions. The penalties are bigger and the conditions in which one might be wrongly convicted more numerous. But I think that the real legal rupture was the night of November 13, 2015, with the declaration of the state of emergency [following the Bataclan attacks]. François Hollande declared the state of emergency and, on this basis, hundreds and then thousands of Muslim households were subjected to searches under the mere suspicion that these individuals were radicalized and represented a danger to public order. But remember, these people didn’t violate a single law.
Since 1789 and the Declaration of the Rights of Man and of the Citizen, in French penal law there has been the principle that nobody can be condemned for behavior not punished by law. It’s also known as the principle of nonretroactivity. But, with the state of emergency, we leave aside criminal law and prioritize administrative law, where we don’t punish the acts that have been committed but intervene to ensure that certain acts don’t take place. So there was a wave of searches and house arrests. Some people who had done nothing illegal were ordered to not leave their residences.
While these measures existed since 1955, they were never used on the scale that they have been after 2015. This change of scale marked a rupture: all of a sudden, the state — the police, the prefects, and the Interior Ministry — felt authorized, as it legally was, to impose constraints on individuals on the sole basis of suspicion.
Before returning to the history of state of emergency laws, we ought to discuss the divisive subject of the sanitary pass — France’s version of a vaccine mandate. Should we be concerned by the measures in France?
The sanitary pass is a mass experiment of a quasi-permanent and daily control mechanism on the population of an entire country. There is a risk that the population gets used to similar means of technological control. Personally, I am in favor of vaccines but opposed to the sanitary pass. I think it’s essential to keep this distinction. The sanitary pass is a technological and governmental tool that allows a wide swath of people — barmen and restaurant servers, workers at nightclubs, museums and cinemas — to have access to personal information such as my family name, first name, date of birth, and health status. I think it’s unacceptable that private individuals would have access to this personal information.
What I regret is that we needed to turn to such constraints for the French to get vaccinated. I regret that we did not rely on individual choice, conviction, and pedagogy — even if these are terms I don’t personally like.
Can you spell out in more detail how state of emergency measures have been used against activists and social movements?
It was employed starting in 2015, with house arrest orders imposed on environmental activists. On the basis of suspicion, these people were required to stay at home all night, could not leave their hometowns, and were required to present themselves to police stations as many as four times per day. This is a form of control that even people accused of terrorism did not have to endure when they are not in custody.
There were also people preventively forbidden from joining protests, again on the basis of suspicion. The anti-terrorist articles in the 2001 law gave the police the legal authority to search people and their vehicles before protests. If these people were found to be carrying face coverings, swimming goggles, or certain products that can protect against tear gas, they were generally sent to police stations to be held in custody.
In this context, you wrote a book about a series of anti-anarchist laws that were passed in the late nineteenth century. What drew you to this period — to the so-called lois scélérates, or “villainous laws,” and to Dreyfus Affair–era France?
I realized that in my trial work and defenses, I often referenced this period. When we plea before a court, we are, of course, referencing contemporary law, but we can thankfully also make historical, political, and sociological parallels. Among the texts that nourished and inspired my work as a young lawyer, there was this essay written by Léon Blum at the end of the nineteenth century against the anti-anarchist laws. At the time, he was working at the Conseil d’État [France’s highest administrative court] and he was absolutely shocked by the villainous laws against the anarchists.
Generally, we use this term to designate a series of three laws, rapidly adopted in response to terrorist attacks committed by anarchists. One attack took place inside the Bourbon Palace (i.e., the Chamber of Deputies) in December 1893. And very rapidly, over the weekend, lawmakers dusted off a bill that hadn’t been able to gain approval beforehand.
This law did not specifically target the fact of throwing a bomb but freedom of expression. Faced with a concrete act — a terrorist attack — the logic was that we need to limit freedom of expression and target its “intellectual authors.”
Your book includes a selection of essays critical of the villainous laws, published by the Revue Blanche in the 1890s. In your admiration for the authors writing for this review, we also see a reflection on the contemporary political scene, or rather what it lacks. In your telling, the Revue Blanche — with figures like Francis de Pressensé, Léon Blum, Émile Pouget, Félix Féneon — was a political and intellectual laboratory that allowed for a series of unusual convergences, bringing together a centrist liberal like de Pressensé, a figure of the center left like Blum, and a far-left activist like Pouget. This sort of front seems unimaginable today. Why?
One hypothesis is that the liberal bourgeoisie today has decided to ally with the police and to not defend the rights of its adversaries and enemies. What enabled this unprecedented alliance at the end of the nineteenth century was the Dreyfus Affair, which was repulsive for many people, including parts of the liberal bourgeoisie like de Pressensé. Here was someone who would now go to meetings with anarchists who had loathed him just a few years earlier. In my opinion, the liberal bourgeoise was sufficiently sympathetic to the principles of 1789 — the liberal principles of the French Revolution concerning what the state can and cannot do to citizens. They told themselves: “What is being done to this man is too dangerous. We have to say something.”
But if we compare this with today, the French intelligentsia haven’t criticized, or not with sufficient vigor, the treatment inflicted on Muslims and some environmental and far-left activists after 2015. They did not see this as posing a problem — a problem of the law, of respect for the rule of law.
For many elements of the French elite, the idea of the “rule of law” means exactly the opposite of its actual definition. They talk about rule of law as if it means a citizen’s respect for the law. “There’s no rule of law because kids are driving around housing projects on scooters,” they say. “There’s no more rule of law because there are people smoking hash at the entry of the apartment block.”
That has nothing to do with it. That’s perhaps a citizen violating an element of the penal code. But the rule of law is first and foremost the principle that the state must respect the law.
What the French call the état de droit [literally, “state of law”] seems to be reverting to the law of the state . . .
That’s exactly it. We need to be able to defend the rights of those we consider to be our adversaries or enemies. Because if we strike down our adversaries today, the same can happen to us tomorrow. I think that the exceptional measures can potentially be used against everyone and anyone. To defend the law, we need to fight for the rights of terrorists, or those accused of terrorism. If we start accepting that we mistreat those who we qualify as terrorists, we are getting ourselves used to everyone being treated in the same way.
Take, for example, the trial of the accused terrorists of the 2015 attacks, which I’m currently involved in. You have in the United States an amendment of the constitution that grants the right to a trial by jury — even though this right is habitually abused by plea bargaining. In France, we do not have this right in the constitutional sense of the term. There is a tradition of citizen juries from the French Revolution. In 1986, however, we decided that cases concerning terrorism would not be judged by juries, but by professional magistrates — just like the last villainous law of July 1894, which also took away the right to a trial by jury for certain infractions.
Why did we do this? The logic was that professional judges would be more severe, so we do away with the right for the people to judge terrorists. We can’t deny that in France today, people accused of terrorism are subject to a legal state of exception, notably because they are not judged by a jury composed of randomly selected citizens, as with violations of normal criminal law.
We need to be able to defend the rights of the most detested figures in our society, such as the terrorist. This is what Francis de Pressensé did when he took a stand to defend Dreyfus, who as a Jew was detested, or for the anarchists, who were despised by a large share of the French population.
It seems like the list of those considered enemies of the Republic just won’t stop growing. Supposedly the “intellectual author” behind terrorist acts, the so-called Islamo-leftist, has become public enemy number two, just after the terrorist himself. The 2021 “separatism law” has established sanctions against associations designated as being against the Republic — for instance, by not signing “contracts” pledging allegiance to the Republic. Are these the new villainous laws?
In publishing this book, it was also my intention to invite the social movement to use this adjective as a political stigma. I know that an adjective is insufficient for the objective of destroying a law, but there comes a point when we have to call things for what they are, when we need to say “this is a villainous law and you should be ashamed of making it.”
Independently of the separatism law, there was the scandal surrounding the Collective Against Islamophobia in France (CCIF), which was an organization that fought for the rights of individuals in France discriminated against because they practiced Islam. This was something that the government did not want to tolerate. This association had come out in opposition to anti-terrorism measures, arguing that certain elements of these laws were Islamophobic.
Gérald Darmanin, the minister of the interior, used this as a justification to dissolve the CCIF. The government argued, “You are criticizing the anti-terrorism law, so you are in favor of terrorism.” This suggests nothing less than the outlawing of any discourse critical of the anti-terrorism laws. I find that unacceptable in terms of the right of freedom of expression.
The CCIF is the archetype of an organization that many saw as adversarial, with which many might disagree, and that essentially nobody defended. The major intellectuals who claim to defend freedom of expression and the values of the Republic did not take a stand, did not raise a finger, when the CCIF was dissolved. They should be ashamed. This defeat only authorizes the government to continue in this logic of clamping down on people because they say things it doesn’t like.