The speeded-up Parliamentary procedures imposed by the French government on the passage of its surveillance bill allowed for just one reading in the National Assembly and one in the Senate. After that a joint Parliamentary committee of members from both chambers agreed on the final text, whose adoption was then subject to a formal vote without debate. From a procedural point of view, the bill was forced through Parliament, a practice that is even more questionable given the fact that it dealt with fundamental issues of public and individual freedoms. Still, if there is already a breach in the wall of democracy, why not abuse it?
That is doubtless what the French secret services reasoned; they then relayed the message to their man in place, the socialist MP Jean-Jacques Urvoas, whose job it was to steer the surveillance legislation through the National Assembly. So during the meeting of the joint Parliamentary committee Urvoas slipped in an amendment that had never been introduced in full sessions of the Assembly or the Senate. This tactic was so flagrant that it raised opposition and the amendment was passed by just one vote on the joint committee, with all MPs from Left and Right voting for it, and all senators, from Left and Right, voting against. The only exception was a socialist senator who voted for the amendment and thus ensured it was carried.
But these differences between Parliamentarians passed by with barely a murmur outside the committee. Not a single political group raised the alarm publicly over what amounted to a coup sprung on the unaware. It was as if the politicians were already resigned to the defeat of democracy and the rolling back of freedoms. For by offering the French intelligence services exactly what the American Patriot Act gave to the National Security Agency, this amendment suddenly revealed the truth about this surveillance law imposed on France after the shock of the terror attacks in January 2015, which have become our 9/11.
This amendment was introduced into Section II of the bill, which deals with the procedures that apply when surveillance techniques are used, techniques for which Section I gives practically infinite scope. It demolished at a stroke all of the government's claims about the monitoring of the intelligence services, to whom such great latitude has been given. In fact, the amendment provided for an “exemption” from the paragraph under which “the use of intelligence gathering techniques on sovereign territory mentioned in Section V of the current act is subject to prior authorisation of the Prime Minister, following the advice of the Commission nationale de contrôle des techniques de renseignement” [editor's note, the new monitoring body created by the act] .
This exemption was as follows: “When the use of intelligence techniques on sovereign territory does not involve a French citizen or a person habitually residing on French territory, the authorisation is given by the Prime Minister without the prior advice of the Commission nationale de contrôle des techniques de renseignement.” This amendment thus made a distinction between French nationals and foreigners, and authorised full, unshackled surveillance of any individual who did not have French nationality, at the discretion of the intelligence services. Thus a foreign diplomat, businessman or journalist could have been spied on without any limits or constraints, as the surveillance law authorises the use of all intrusive snooping techniques that are available.
Even worse, the curious imprecision of the wording – the “or” between “French citizens” and “a person habitually residing on French territory” – left open the possibility of yet another contravention against French citizens who did not reside habitually in France, in particular those with dual nationality. It is as if the fact of being a foreigner or living abroad constituted by its very nature, and in some unspecified way, a threat against which the French state had the right to protect itself without the slightest legal or even procedural safeguard. For under this exemption simply the approval of the prime minister was needed, and in practice this means his office. For the intelligence services this form of authorisation is a joke: they just need to come up with a good cover story to go with their request.
It was on Tuesday June 16th that the MP Urvoas and the external intelligence agency the Direction générale de la sécurité extérieure (DGSE) successfully carried out their manoeuvre and the bill was then formally sent to both chambers with this new amendment included. Yet there was zero reaction from the government about this. Neither Matignon, the prime minister’s official residence, nor the ministry of the interior showed their astonishment at the apparent zeal of this Parliamentary initiative. It was as if they were waiting to see what would happen – or what would give way. So it took four days, and the public warning on Saturday June 20th (see Le Monde's story here) from Jean-Marie Delarue, the current president of the current surveillance watchdog Commission nationale de contrôle des interceptions de sécurité (CNCIS), for the government suddenly to make it known that it would table an amendment on Monday June 22nd to annul the changes made by Jean-Jacques Urvoas. And this absence of prior comment was despite the fact that Urvoas is known to be very close to the government in general and to prime minister Manuel Valls in particular. [Editor's note, the bill was then passed by both houses in the French Parliament on June 24th.]
In his comments Jean-Marie Delarue highlighted how the amendment revealed the true intentions of those behind the surveillance law: to do the same as the United States after 2001, even though the Americans themselves are now reviewing the true impact of their security measures and the anti-freedom nature of the Patriot Act. To look at people in France and separate “those who deserve protection from others,” he wrote, “is to precisely follow the American concept ” in which “protection of private life is extended only to American citizens, possibly to foreign residents but not to others ('non-US persons')”.
This episode was no mere anecdote. It illustrates how among those who govern there has been a political drift away from the shores which shelter the most basic forms of democracy. Weak and fragile, they are unable to hold at bay the authoritarian temptations that come from the deep state, that cosy little world of non-commissioned officers and graduates, experts and technicians, who believe that they are the true inheritors of the national interest and whose worse enemy is Parliamentary deliberation, transparent information and a system that is both pluralistic and partisan.
Democracy has become a burden to them...
Just like the loi Macron – the economic reform bill backed by economy minister Emmanuel Macron – in the domains of economics and society, the surveillance law shows us the gradual shift that has occurred in political culture, aided by the democratic weakness of the institutions of France's Fifth Republic. These institutions were originally conceived by leaders who mistrusted a rebellious public. In the transition period at the start of this century, a time marked by uncertainty, there was a switch to five-year rather than seven-year terms of office for the president, whose election now falls in the same year as the Parliamentary elections, thus linking MPs' fate to that of the president. This has in turn freed up the authoritarian temptations of the presidency which previously had been held in check by mid-term Parliamentary elections, sometimes obliging the president to 'cohabit' with a legislature and government of a different political persuasion.
But it is not just the executive that now reigns supreme, imposing its brutal law on a legislature stripped of its deliberative prerogatives by the use of extraordinary procedures – an accelerated legislative passage in the case of the surveillance law, and a passage cut short without a vote in the case of the loi Macron thanks to the use of article 49-3 of the Constitution. More crucially, it is the state services, whether security (the DGSE and the DGSI) or economic (the hugely powerful audit and supervisory body the Inspection des Finances), who prevail over governments who yield to their demands and their expert reports. These are governments that are incapable of imposing an independent political will because they don't themselves know what they want, other than simply to survive.
Because they have drained politics of all democratic ideals, of all intellectual depth, of all lofty ambition, they are tempted by the functional short-cuts offered by the trappings of state, to the detriment of the slower pace of democracy. Sheltering behind the machinery of state, whose authority they claim for their benefit alone, these governments reach a point where they mistrust all those complications that arise simply from the exercise of a vibrant democracy made up of powers and counter-powers, deliberations and protest: discussion, open exchange, convincing people, evaluation, finding compromises. Such measures take time which, far from being lost, allows one to build trust. But doubtful whether they will get that trust, and doubting themselves too, these leaders instead now prefer to force measures through.
It is as if, for them, democracy has become a burden. The very same week of the amendment manoeuvre by the state security apparatus, the French Republic served up the spectacle of a Parliament that was humiliated – Mediapart even described it as “crushed” - under the pressure of a ministry of finance that has been converted to the most unbridled form of economic liberalism. After freedoms being whittled away, here was work being deregulated. Through an unprecedented use of article 49-3, which did not even allow for any new amendments to be discussed in public session, the loi Macron aims to set limits on the compensation that workers can receive at industrial tribunals for unjustified sackings. In other words, to turn dismissal into a simple variable accounting factor that companies can make provisions for, as they do for risk, with absolutely no consideration for the future employment of staff who, from then on, are doomed to intermittent and interrupted careers. In short, who then face precarious lives.
The proof that no democratic scruple gets in the way of governments whose heads have been turned by the giddiness of authority, is that this other spontaneous coup d’etat came barely a few days after a Socialist Party congress where the votes by activists were shown to have served no purpose, other than to highlight how the ruling party has subjugated itself to the executive's authority. For those who believe they are, fleetingly, the masters of the common good, the advice of an inspector of finances, of a secret agent, of a military leader or a company boss counts for far more than the views of the rank and file, whose commitment is only needed to show their voluntary submission: their abandonment of sovereignty.
One should also note the role of European inertia in this increasing adoption of an approach that is so obviously anti-democratic, an approach now taking place under the Left after a 'hyper-presidency' of the Right. The ongoing Greek crisis illustrates – to the point of parody – the catastrophe that awaits us in a future handed over to technocratic elites and oligarchs who defy the popular will. Just as the intelligence services claim to protect us by watching us, and by doing so put at risk our freedoms of expression, opinion and personal commitments, so, too, do the European Central bank and the International Monetary Fund claim to save economies by bleeding the people, and by doing so put at risk the most basic of social rights without which there is simply no common society and thus no viable nation.
From basic freedoms to Europe, via workplace rights, this headlong rush of governments encourages the dangerous idea that democracy is superfluous, as if it were a luxury that we can no longer allow ourselves. Playing on security threats and economic crises, this shock strategy ruins democracy as a viable hope and as a necessary ideal. If we don't succeed in curbing it by our common efforts, it will inevitably lead to more and open authoritarian tension, to an open brutalisation of a society that is held in mistrust and to the use of fear and hatred as distractions and diversions.
Protected by the apparently solidity of institutions that are already weak democratically, our leaders do not care about such concerns, obsessed as they are by their desire to cling on to their positions. Enclosed in their clientelist bubble, they build themselves a fortress which they hope is unassailable. But the foundations of this citadel, of which the Elysée is the dungeon, increasingly rest on sand: a people who are defiant and who keep their distance, an abandoned and downtrodden populace. It is possible that some chance event, as unforeseen as the recent emergence of popular protest movements in other countries, could see this stronghold abruptly collapse.
But given that France has endured so many missed opportunities – of which the threat of the extreme right is the political manifestation – it is also possible that this sand on which the castle stands will turn into a desert, that it leads to the permanent demise of democracy, this common cause that underpins our happy coexistence. It is high time we worried about that.
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- The French version of this article can be found here.
English version by Michael Streeter