The Bush administration wants to be like France

Marc Perelman has a piece on Foreign Policy's web site comparing and contrasting the American and French approaches to homeland security. One big difference is how the problem was viewed prior to 9/11: In 1988, the FBI invited Alain Marsaud, then France?s top antiterrorist magistrate, to speak about terrorism to the bureau?s new recruits at its academy in Quantico, Virginia. Marsaud, now a conservative lawmaker, told the audience of would-be feds of the deadly threat that radical Islamist terrorist networks posed to Western societies. His talk was an unmitigated flop. ?They thought we were Martians,? recalls Marsaud, who chairs the French Parliament?s domestic security commission. ?They were interested in neo-Nazis and green activists, and that was it.? Then there are the differences in approach now. It turns out the Bush administration wishes the U.S. system was more like the French: In the French system, an investigating judge is the equivalent of an empowered U.S. prosecutor. The judge is in charge of a secret probe, through which he or she can file charges, order wiretaps, and issue warrants and subpoenas. The conclusions of the judge are then transmitted to the prosecutor?s office, which decides whether to send the case to trial. The antiterrorist magistrates have even broader powers than their peers. For instance, they can request the assistance of the police and intelligence services, order the preventive detention of suspects for six days without charge, and justify keeping someone behind bars for several years pending an investigation. In addition, they have an international mandate when a French national is involved in a terrorist act, be it as a perpetrator or as a victim. As a result, France today has a pool of specialized judges and investigators adept at dismantling and prosecuting terrorist networks. By contrast, in the U.S. judicial system, the evidence gathered by prosecutors is laid out during the trial, in what in effect amounts to a make-or-break gamble. A single court, the ?secret? panel of 11 judges, established by the U.S. Foreign Intelligence Surveillance Act (FISA) more than two decades ago, is charged with reviewing wiretap requests by U.S. authorities. If suspects are spied on without permission in the interest of urgency, the authorities have 72 hours to file for retroactive authorization. The Bush administration?s recourse to extrajudicial means?military trials, enemy combatants?partly stems from an assessment that the judicial system is unfit to prosecute the shadowy world of terrorism. The disclosures that the Bush administration skirted the rules to eavesdrop on terrorism suspects at home is apparently the latest instance of the government?s deciding that rules protecting civil liberties are hampering the war on terror. French police and intelligence services, in contrast, operate in a permissive wiretapping system. In addition to judicially ordered taps, there are also ?administrative wiretaps? decided by security agencies under the control of the government. Although the French have had their own cases of abuse?evidence has exposed illegal spying by the Fran?ois Mitterrand government in the 1980s?the intrusive police powers are for the most part well known by the public and thus largely accepted, especially when it comes to national security.... Bush administration officials argue that the FISA law in its current form does not effectively counter the terrorist challenge. Yet, the administration has not made serious efforts to amend the law or push for broader reform of domestic counterterrorism. Doing so would no doubt be difficult politically and may require regular tweaking, as the French experience shows. But such an effort could pay dividends, for both law enforcement and the American people?s trust in their government. In recent years, French authorities claim they have thwarted a number of terrorist plots by using their forward-leaning arsenal, from a series of alleged chemical attacks planned by Chechen operatives against Russian interests in Paris to a recently reported ploy by French Muslims linked to a radical Islamist group in Algeria to target one of the capital?s airports. ?The French have a very aggressive system but one that fits into their traditions,? says Jeremy Shapiro, the director of research at the Center on the United States and Europe at the Brookings Institution in Washington. ?They seem to be doing the best job in Europe.? The problem is that the French system doesn't fit very well with American traditions -- so I don't think grafting this system onto the American Constiution is going to work all that well.