How ISIS Is Shaking Up Transatlantic Views on Surveillance and Counter-Terrorism

France is now nine months into a state of emergency set to last for an unprecedented 14-and-a-half months. The measures involved are supposed to make the country safer. But after a bloody July mourning more than 80 deaths in Nice on Bastille Day, then the killing of a priest in the middle of mass on July 26, the question seems inevitable: Are they working?

The emergency laws enabling heightened army and police presence, warrantless searches, house arrests, and restrictions on freedom of movement and assembly have retained broad political support since first imposed after the November 2015 Paris attacks. But two security analysts and one human rights-advocate I talked to suggested that, whatever the perception, the state of emergency likely won’t do much on its own—in fact, to combat terrorism in France and elsewhere in Europe, coordinating existing procedures might be more effective than these temporary measures suspending elements of due process.

“Essentially all the [terrorist] networks, whether in France, Germany, or wherever, what they do is they take advantage of the soft underbelly of the European legal system—systems, actually,” said Florence Gaub, a senior analyst with the European Union Institute for Security Studies in Paris, in a phone interview. She pointed to two major issues: the 26-country Schengen area’s permeable borders with other member states—criticized and to some extent curtailed in the past year during the migrant crisis—and the general barriers built into most Western legal systems when it comes to targeting people based on a potential threat rather than an actual offense. “The system is geared to people who don’t move around much within the European system, don’t use these multiple exit and entry points, and of course are already convicted of a crime. So if you’re radicalized and haven’t acted yet, then the system will simply not be able to apprehend you because it’s not wired that way.”

France’s emergency laws, she pointed out, in theory help solve this latter problem by removing some of the restraints the legal system places on authorities wishing to monitor and arrest people who haven’t yet, and may never, commit offenses—to the horror of civil rights and due process advocates. But the recent uptick in attackers who seem to acquire Islamic State sympathies suddenly without observable prelude means that tracking people who seem vaguely Islamist isn’t much help. “Someone like the Nice attacker who hasn’t even been very Islamist in rhetoric, he would slip through the net as well.”

There are ways of dealing with this problem without going full-on Minority Report. One possibility involves tackling non-terrorism crimes more aggressively. “If you look at the profiles of these attackers [in Europe in the past few years], they’ve all had a petty criminal past,” said Gaub. “The guys who attacked in November had a bar in Brussels that was closed for selling drugs.” (The Nice attacker’s peppered record included assault, domestic violence, theft, and threats. The gunmen who attacked the offices of the satirical magazine Charlie Hebdo in Paris last January had criminal records, as did the bombers who attacked a Brussels metro station and airport in March 2016, killing more than 30 people. The man suspected of killing three at the Jewish Museum in Brussels in May 2014 also had a criminal record, and so did a shooter who killed seven in the French cities of Tolouse and Montauban in 2012. The suspect tackled in an attempt to attack a train en route to Paris last August had been detained multiple times for drug trafficking.)

“Attacking this criminal dimension would probably be more effective than attacking the ideological aspect,” Gaub continued, whether that means toughening punishments or making sure that the punishment isn’t a step towards a greater crime. The Brussels attackers, for example, met in prison during short sentences. “Little networks formed in a situation with a shared experience, and that fosters the bond even further,” Gaub said, suggesting that authorities could devote more resources to tracking “what happens to people in prison, whom they interact with,” and “criminal career development,” where “suddenly joining the Islamic State becomes the next step in their criminal career.”

“There have been more than 3,600 searches in the period between November and the end of May. There have been more than 400 house arrests in the same period and only six criminal investigations have been opened for terrorism-related facts following these searches,” said Bénédicte Jeannerod, the France director for Human Rights Watch, when I called her up to ask about the state of emergency. The figures she cited were published by Human Rights Watch in a report in late July. “And what is very interesting is that many of the criminal investigations opened not after searches but after other investigations taking place [under] the normal, [non-emergency] laws [and procedures], so it also raises the question of the added value of the state of emergency compared to the normal criminal law.”

Admittedly, normal criminal law doesn’t always help with catching returned fighters from Syria and Iraq—and even prosecution based on new laws criminalizing terrorist activities abroad (the United Kingdom and Germany even have laws criminalizing travel abroad with intent to receive terrorist training) tend to stumble over standard burdens of proof. “It’s very difficult for the prosecution to prove that someone has been on the ground with the intent to fight,” said Gaub. What that leaves, perhaps, is what Gaub referred to as legal creativity “in the Al Capone sense”—the Prohibition-era gangster was ultimately convicted not for the gambling, bootlegging, and murders he was famous for, but for tax fraud. “It may be that you can’t prove cutting off heads in Syria, so instead you have to prove that [an individual] called for cyber-jihad on Facebook. We don’t need to hollow out our civil liberties, but maybe think of civil liberties more in a European sense than an American,” she said, referring to greater restrictions on hate speech in Germany and France, for example, in contrast to the fairly robust protection for free speech offered by the American constitution.

Even when it came to the open-border problem, both security analysts I spoke to pointed to improvements in existing structures that might be more helpful than, say, re-establishing internal European borders, or closing the external borders to migrants.

“There’s this trend recently to try to find causal links between things that don’t exist,” said Giacomo Perso Paoli, a senior analyst with the Rand Corporation in the United Kingdom. In the wake of the attacks in Paris in November, several EU member states called for closing borders. “The fact that two of the attackers in Paris used [Syrian] passports, or came to Europe as asylum seekers was used as a kind of tool to hide the fact that the remaining eight or nine were local residents. ... You have a problem of radicalized citizens and you close the border. How is that going to help you solve the problem of radicalized citizens?”

Instead, he pointed to existing European Union structures and institutions that “on paper” could mitigate the problem, but “are only as good as the willingness of member states to implement them and contribute to them.”

One example is the Schengen area’s information-sharing system. In theory, said Gaub, “individual member states can add people they’re looking for or want to be notified about, or stolen cars, or whatever.” But she pointed to three problems. First, “it doesn’t tell you why the state is looking for that person.” In the case of Mehdi Nemmouche, who is suspected of the 2014 Jewish museum attack in Brussels, “he had a notification—France had put in a marker that whoever sees him should alert the French that they have seen him, but no further information was available. The Germans later said, had we known that he was wanted for potential terrorism crimes we would have at least put a tail on him.”

Second, neither Europol, the EU’s law-enforcement agency, nor Frontex, the EU’s border-management agency—has access to this database. (The United Kingdom, not being a Schengen member, only got access last year.) And third, participation in such information-sharing schemes is uneven. In Europol's own separate database on suspicious individuals, for example, “80 percent of the content is given by four member states. Not all the member states are very active in contributing information. And of course not all border posts are equipped to access it at any given time.”

Updating databases and increasing cooperation doesn’t sound as dramatic as “state of emergency.” And it does nothing to address instability in the Middle East or radicalization at home. “The system ... will never be perfect,” said Gaub. “But right now there are really quite a few holes, and if you are an average intelligent Islamic terrorist you can take advantage of it.”

As with many problems in the European Union, the difficulty isn’t so much a lack of solutions as a dearth of will to implement them. Some of the very same issues Gaub, Paoli, and Jeannerod raised were discussed in detail in a 150-plus-page report by a French parliamentary inquiry commission at the beginning of July. Six of the 40 proposals the commission offered dealt solely with increasing intra-European cooperation, in particular with regard to the Schengen Information System and Europol. Another nine involved increasing French first-responder readiness, with 19 dealing with France’s internal intra-agency cooperation and institutional improvement. The commission’s support for the state of emergency, by contrast, was tepid; the report observed that expert witnesses did not mention such measures as “playing a particular role” in the fight against terrorism.

So why is the state of emergency still in place? Why did French lawmakers extend it after Nice? Politics, suggested Jeanneod. Before any “counterproductive effects” of the state of emergency are likely to be felt—she pointed to the possibility of alienating populations already at risk of radicalization—France’s security situation “will be a very political issue for the presidential election” coming up in spring of 2017. And while 53 percent of respondents in a June poll didn’t believe the state of emergency was effective, only 14 percent wanted it removed.

This result hints at what the state of emergency does do effectively. Paoli pointed out that the sheer display of armed security forces in public places in theory acts as a deterrent for certain types of attacks, and also could increase responsiveness when they occur—although this was hardly the case in Nice. But additionally, “there’s a major role played by public perception,” he said. “That is certainly something that might be difficult to quantify, but in a moment where here in Europe people feel insecure, showing the presence of the state is very important.”

Confidence in France’s security forces remains remarkably high, according to a poll conducted immediately after the recent church attack. But the 80 percent confidence rate is also 4 percent lower since July, and 8 percent since January. With each attack, the limited effect of the state of emergency on confidence alone grows a little weaker.