To support the “war on terrorism,” the concept of war has been introduced into the criminal code of all Western countries. This is the first step on the way to a merger between criminal law and the law of war. Massive spying by the secret services of a country on its citizens has today become the norm. The Snowden revelations on the operations of the NSA have only brought to light a widespread surveillance that is already legalized.
Despite the prominence given to the practices of U.S. intelligence agencies and the resulting indignation in France, the French parliament just adopted a military planning law that includes measures allowing practices similar to those of the NSA, specifically massive spying by intelligence agencies on citizens.
The U.S. Precedent
The U.S. surveillance laws were the predecessor to European legislation. Section 215 of the Patriot Act, which was passed on October 26, 2001 to define the legislative framework for the war on terrorism, established that the collection and surveillance of communications could be made for a limited period of time without a warrant or court order.1 These measures were passed under the form of an amendment to the FISA law, which was initially adopted in 1978 to provide a framework for spying on private communications.2 Here also, it is on the basis of a law intended to “supervise intelligence activities” that espionage procedures were extended to all U.S. citizens.
The U.S. government’s viewpoint that the September 11 attacks were an act of war—and not just a crime—is based on a Congressional resolution of September 18, 2001, The Authorization for Use of Military Force, which gives special powers to the executive branch.3 The interpretation of this resolution made by successive U.S. administrations is that the state is at war, not against other nations, but against organizations that are not linked to a foreign government, or against private individuals. This interpretation redefines the concept of war. It takes on an asymmetrical character, a “fight to the death” between the world superpower and persons designated as enemies of the United States. This new concept, however, is not based on the existence of any real threat against the country. It is a pure product of the subjectivity of the government: the state of war exists simply because the United States says so.
These temporary measures in the Patriot Act opened the way to the current wide-scale surveillance of world communications by the United States, including communications inside the country. Surveillance has become unlimited in time due to the adoption of the “Patriot Act Improvement and Reauthorization Act of 2005,” which renewed all of the measures taken after the attacks and made permanent those that were previously temporary.4
A Court Decision that Denies Its Unconstitutionality
These measures, however, conflict with the Fourth Amendment to the U.S. Constitution that protects citizens from unreasonable searches and seizures. In order for the Fourth Amendment protection to be effective, a warrant is required, hence a justification for any data captures. Yet Judge William H. Pauley of the Federal Court of New York denied in his ruling of December 27, 2013, that there was any contradiction with the provisions of the Fourth Amendment, and stipulated that the NSA’s massive collection of telephone data was legal.5 According to the judge, the fight against Al-Qaeda justified this widespread surveillance. Basing himself unconditionally on the testimony of high officials from the Obama Administration, he concluded that if the NSA had had recourse to its current program of electronic surveillance before September 11, 2001, the attacks would not have happened.
Judge Pauley cites approvingly the testimony of Deputy Directory of the FBI Sean Joyce before the House Permanent Select Committee on Intelligence. Joyce said: “Our mission is to stop terrorism, to prevent it. Not after the fact, to prevent it before it happens in the United States…. You ask ‘How can you put the value on an American life?’ And I can tell you, it’s priceless.”6
For the judge, the data collection is legal because of Section 215 of the Patriot Act. The role of the law is thus turned upside down. The Foreign Intelligence Surveillance Act (FISA), which provides an appearance of regulating intelligence agencies, is transformed into a means for providing a blank check for espionage against the U.S. population. This interpretation of Section 215 first shifts the role of intelligence agencies from counterespionage to global surveillance of U.S. citizens, then proceeds to turn the function of the law upside down, from its traditional role of regulating action of the executive branch to legitimating absolute power.7
The ruling amalgamates the population and the government, thus removing any possibility of conflict between the rights of citizens and the interests of the state. To support the thesis that the defense of democratic rights can be left in the hands of the armed forces and intelligence services, the judge cites the 9/11 Commission Report: “The choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil.” Judge Pauley also asserts that each time a person uses a telephone, he or she “voluntarily” relinquishes his or her rights to privacy. He thus enjoins trust in the government without questioning its actions and assert that if the government attacks liberties, it must have good reasons for doing so.
U.S. courts have reached different decisions on the issue of widespread surveillance. The ruling of the New York federal court is a reaction to a decision of December 16, 2013, by Richard Leon, judge of the U.S. District Court for the District of Columbia. In his decision, Judge Leon described as “almost Orwellian” the NSA’s massive spying operations, which involve the collection and storing of practically all the telephone call data, local or international, in the United States. He asserts: “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.”8
Even more significantly, the judge rejected the justification of the war on terrorism invoked by the Obama and Bush administrations to legitimize all attacks against democratic rights. Judge Leon noted that the government did not cite “a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack.”
However, while the ruling stipulates that NSA practices “almost certainly” violate fundamental democratic rights, guaranteed by the Fourth Amendment, the judge has done nothing concretely to prevent the NSA’s unconstitutional spying. Thus, despite his conclusions, and “in light of the significant national security interests at stake in this case,” Judge Leon stayed his order of an injunction against NSA spying operations pending the government’s appeal. The appeals procedure could take years to reach the Supreme Court.
France: The Military Planning Law
The latest French Military Planning Law, enacted on December 19, 2013, follows the trend begun in the United States. It exemplifies the evolution of law in the West that, while concentrating all power in the hands of the executive, puts the absence of law forward as the basis for reconstructing a new legal order.9
This year, the Military Planning Law goes beyond the context of defense to include “the fight against crime.” It includes various measures concerning both defense and national security. Article 20 extends the surveillance powers of French administrative authorities to “the prevention of crime.” Thus, by generalizing the tendency already initiated by the “ anti-terrorist” fight, this article merges the law of war and criminal law. By aiming generically at “the prevention of crime,” this procedure will be applied not only to terrorism, but also to all offenses. By subjecting French citizens to a system of surveillance formerly reserved to agents of a foreign power, the law no longer separates the nation’s internal affairs from its external ones and no longer makes a distinction between criminal offense and management of hostility. This omnipresent process is not only identifiable within the country, but also at the level of international conflicts. France’s involvement in Libya makes no distinction between an act of war and a police function. War is no longer undertaken for defense or conquest, but to “protect a population from a tyrant.” It is the same with Syria. Following a chemical-weapons attack in Damascus attributed to Syrian government troops, President Hollande’s entourage, contemplating a limited intervention, emphasized “France’s great determination to react and not leave these crimes unpunished.”10
Merging the Military and the Penal
In order to carry out this merger of the penal system and the military, the Military Planning Law supplants judicial power and concentrates power in the hands of the executive branch. Not only is the third branch totally circumvented, but the only a posteriori control institution, the National Commission for the Control of Security Interceptions (CNCIS—Commission nationale de contrôle des interceptions de sécurité) belongs to the executive and can only make “recommendations” to the prime minister.
The data collected includes telephone numbers, IP addresses, and the contact lists of callers, as well as data on real-time geolocation. Preliminary authorization from a specified judge or the CNCIS is necessary only in the last case.
Thus, Article 20 gives to the administration the right of real-time collection of information on the users of communication networks without recourse to a judge and without prior authorization from the administrative control body. Individually appointed agents from the ministries of Defense, Interior, the Economy, and the Budget (as well as “special representatives”) can now directly access the data. The law also includes the right to monitor all information and documents stored by the Internet host and not only technical data. Moreover, agencies are going to be able to demand data for a very wide range of reasons, particularly those provided for in Article 241-2 of the Internal Security Code, i.e., national security, prevention of terrorism, crime, and organized crime.
Seizure of Real-Time Data
Article 20, which will enter into force in January 2015, allows the real-time capture of data on the basis of a simple administrative request (a “request to the network”) for information and documents handled by the latter and not just for the connection data of users. The direct collection of information will be made not only from Internet access providers and telecommunications companies, but also from all Internet hosts and providers of online services. No measure limits the volume of data collection. The latter could require the direct installation of signal or data capture devices at telecommunication companies and hosts. The inclusion of the terms “request to the network” means that the authorities hope to provide a legal framework for a direct interconnection. This law also transforms temporary measures into permanent ones.
The executive has always maintained that the new law does not include the content of the intercepted messages, but only the connection data. The French Data Protection Authority (CNIL—Commission nationale informatique et libertés), a control agency set up by the executive branch itself, has refuted this interpretation.
A Digital Military State
Article 22 stipulates that ISPs, Internet hosts, and other operators whose infrastructure is considered of vital importance for the country must set up, at their expense, tools for “detecting events likely to affect the security of their information systems.” Since these tools would be used by certified third parties or by state agencies themselves, the law in fact authorizes the executive branch to install probes that it directly or indirectly controls.
The law does not define a cyberthreat and does not specify the competent authority to determine what constitutes an attack on “the Nation’s military or economic capability, security, or survivability.” With such broad terminology, this legislation would make it possible, for example, to take action against a demonstration organized through social networks.
The policy of the United States is quite illuminating about the possibilities provided by the use of such concepts. The terms cyber-war and cyber-terrorism are central to the discourse of the U.S. government. The launching of the Iraq war already gave rise to an increase in alarmist declarations. Tom Ridge, Secretary of Homeland Security, announced that cyberterrorists are as dangerous as terrorists: “We will make no distinction between virtual and physical in this department,” he stated. Article 21 of the Military Planning Law authorizes such a lack of distinction between the real and the virtual. The threat exists merely because it is named as such.
Posing as a digital martial law in a permanent state of war, Article 22 allows the prime minister to cut off a server, reroute data along specific routes, or even force telecommunication firms to participate in counterattacks.
Article 23b of the law stipulates that agents of the national authority for the security of information systems can obtain from electronic communications operators the identity, postal address, and electronic address of users or holders of vulnerable, threatened, or attacked information systems. Thus, the law gives the Network and Information Security Agency (ANSSI—Agence nationale de sécurité des systèmes d’information) access to the files of subscribers. The agency will be able to obtain the coordinates for any Internet host, publisher, or Internet site subscriber “for the purpose of preventing attacks on automated processing systems.”
France at War Against Its Citizens?
As a result of this law, the French are subject to procedures that formerly were used in surveillance of agents of an enemy power. This latest legislation, however, is only the most recent of a group of measures that began with the Internal Security Guidance and Planning Law (LOPSI—Loi d’orientation et de programmation de la sécurité intérieure), adopted on August 29, 2002.11 This legislation already allowed remote access by the police to data retained by telecommunication companies and Internet service providers. In comparison to the 2001 Law on Everyday Security (LSQ—Loi sur la sécurité quotidienne), LOPSI makes it possible to evade the requirement of making a formal request to a telecommunication company. Formally, such a step requires a judicial authority to verify the legality of the request to the telecommunication operator. This requirement, which calls for a commission, includes an investigation procedure and allows for possible recourse against the ordered measure. By abandoning the necessity of referring the request to a judicial authority, the 2002 law was an important step in moving police investigations in the direction of intelligence work. As for LOPSI 2, adopted on February 8, 2012, it permits a progressive screening of the Internet and legalizes the use of Trojan horses in private computers.12
The latest French law is part of a trend that assimilates a nation’s internal security concerns with its external ones. By merging national defense and “crime prevention,” it establishes general surveillance measures that apply procedures to citizens that were formerly used only for counterespionage. These procedures, in the past directed only at agents of an enemy power, are imposed on the population and the measures validating them are incorporated into the law, thereby obtaining the consent of citizens. The role of the law, then, is reversed. Instead of delimiting the action of public authority, it merely records the absence of limits on the exercise of executive power.
Citizen-Enemy of the State: Foundation of a New Legal Order
In France, the concept of enemy is not yet, as in the United States, explicitly introduced into criminal law. However, it already functions as such in practice through legislation like LOPSI 1 and 2 and the military planning law.
In the United States, numerous surveillance measures established by the Patriot Act were at first provisional. Justified in the name of the existence of a state of war, they were passed with the intent of being applied for a limited period of time. It was only later, during their renewal, that they were adopted as measures with no temporal limit.
In France, the measures taken no longer refer to a state of emergency, but directly to a permanent state of war—although, unlike the United States, the concept of hostility is not yet formally part of criminal law.
In the United States, the inclusion of hostility into the internal legal order was first implemented through administrative acts justified in the name of a state of emergency. However, the Military Commissions Act of 2006 incorporates the concept of war into criminal law permanently.13 It transforms this concept by allowing the president to designate U.S. citizens—as well as any citizen of a country which the United States is not at war with—as “enemy combatants.”14 This purely subjective law gives judicial prerogatives to the executive branch.
On October 28, 2009, President Obama signed the Military Commissions Act of 2009. The new law no longer speaks of “unlawful enemy combatant,” but of “unprivileged enemy belligerent.” This expands the field of incrimination because it no longer focuses solely on combatants, but on “persons who are engaged in hostilities against the United States.”15 The new definition makes it possible to go directly after not only persons captured in an armed engagement, but individuals who commit acts or voice words of solidarity towards those who oppose the United States armed forces or simply the war policies of the U.S. government.
- ↩See 50 U.S.C. § 1861.
- ↩The 1978 Foreign Intelligence Surveillance Act establishes a special court charged with authorizing operations for surveillance of “agents of a foreign power.” This is a secret court composed of eleven judges designated by the Attorney General. See Electronic Privacy Information Center, “Foreign Intelligence Surveillance Act (FISA),” http://epic.org.
- ↩US Congress joint resolution of September 18, 2001, Authorization for Use of Military Force (AUMF), public law 107-40, 115 Stat. 224–5, http://gpo.gov.
- ↩H.R. 3199 (109th), http://gpo.gov.
- ↩Sari Horwitz, “NSA Collection of Phone Data is Lawful, Federal Judge Rules,” Washington Post, December 27, 2013, http://washingtonpost.com.
- ↩ACLU vs James R. Clapper 959 F.Supp.2d 724 (S.D.N.Y. 2013).
- ↩See, American Civil Liberties Union, “Reform the Patriot Act: Section 215,” https://aclu.org.
- ↩Ellen Nakashima and Ann E. Marimow, “Judge: NSA’s Collecting of Phone Records is Probably Unconstitutional,” Washington Post, December 16, 2013, http://washingtonpost.com.
- ↩LOI no. 2013-1168 du 18 décembre 2013 relative à la programmation militaire pour les années 2014 à 2019 et portant diverses dispositions concernant la défense et la sécurité nationale, http://legifrance.gouv.fr.
- ↩“Réforme pénale, Syrie, pression fiscal…Hollande s’ explique dans ‘Le Monde’”, LeMonde, August 30, 2013, http:// lemonde.fr.
- ↩Law no. 2002-1094 of August 29, 2002 on Internal Security Guidance and Planning, http://legifrance.gouv.fr.
- ↩Law no. 2001-1062 of November 15, 2001 on Everyday Security, http://legifrance.gouv.fr. The so-called LOPSI 2 law, the Law on Guidance and Planning for Achieving Internal Security (Loi d’orientation et de programmation pour la performance de la sécurité intérieure), follows up on LOPSI 1, http://legifrance.gouv.fr.
- ↩S. 3930 (109th), http://govtrack.us.
- ↩Jean-Claude Paye, “‘Enemy Combatant’ or Enemy of the Government?,” Monthly Review 59, no.4 (September 2007): 1–10.
- ↩Title XVIII of the “National Defense Authorization Act for Fiscal Year 2010,” http://defense.gov.