Security at Terrorism Trials

8Since 2015, security at French trials has changed a great deal from the images that were regularly presented of a militarization of justice in terrorism cases, as with the trial of Salah Abdeslam in Belgium in February 2018. This trial prompted "exceptional measures," [15] as the court in Brussels was converted into a high-security area with the presence of military personnel inside and outside the courthouse. As we await the French trials for the 2015 attacks, [16] which will certainly be accompanied by such measures, the daily handling of terrorism cases before the French courts took place following standard security procedures.

9On very rare occasions, this ritual was subject to special measures, like one afternoon in 2017 when Mohamed D., a thin young man, appeared in the dock accompanied by four heavily equipped bodyguards wearing ski masks, sending a shudder through the lawyers and journalists already in the room. The ERIS, [17] known as the "ninjas" in the prison vocabulary, took their positions and secured the dock. Their weaponry, their postures and especially the anonymity produced by their ski masks created an unprecedented atmosphere. Generally, they only appeared from time to time, usually when the defendants in question were being held in high-security detention centers. The comments and impressions of the observers attending these trials also illustrated this apparent normalcy. There was often a group of retirees or high school students who had come to visit the tribunal de grande instance [18] in Paris and who entered the courtroom even as the proceedings were underway. At the mention of terms like "terrorist networks" or "Islamic State," these observers always seemed surprised: "We thought they’d search us more thoroughly. But actually it’s just like when we looked in at the summary trials in the courtroom across the hall! Are those people in the dock terrorists?!" [19]

10As for the judges, maintaining the ritual of everyday justice manifests itself in close contact with the other participants in the proceedings: "We’re used to encountering the defendants and especially their families or friends in the hallways of the courthouse or at the front entrance… But this is different, isn’t it?" [20] As a result, sharing the same space inside the courthouse is regularly described as a problem related to the absence of specific security measures: "You’ve noticed that we have no protection. We’re the only ones without it, by the way. We’ve asked for it. We only get it on special occasions and afterwards it’s always the same old story about money and how much that protection costs. If something happens to us, the government won’t send flowers, I’ve warned my children [laughs]!" [21]

11The question of security measures for the judges dealing with terrorism cases has a long history in French justice. In 1986, during the trial of the members of the Lyon cell of the Action Directe group, one of the defendants, Régis Schleicher, threatened the jury and some journalists present in the room. The next day, nearly all of the jury members decided to use a medical certificate to be excused from taking their seats. The decision to reintroduce a special arrangement for terrorism cases was then expedited, leading to the creation of the cours d’assises spéciales made up exclusively of professional magistrates, without juries of ordinary citizens.

12Although judges are often seen as being less vulnerable to pressure from the defendants, and their circles of friends and family, than juries are, their security nevertheless remains a sensitive issue today. As a result, since 2016 journalists have been asked to keep the identities of judges and the representatives of the prosecution secret, by not revealing their names in any reports on the hearings. Similarly, since the murder of two police officers in Magnanville in 2016, those officers who testify at the cours d’assises have the option of doing so anonymously, through the use of a videoconferencing system. As this has led to a profound transformation of the courtroom ritual, the anonymity of witnesses has been subject to much criticism from defense lawyers denouncing the confidentiality of testimony in the context of cross-examination and the principle of a fair trial.

The Principles of Open Justice [22] in Terrorism Cases

13The rules of a fair trial are an essential prerequisite to justice in a state governed by law. Under the effect of Europeanization, this manifests itself in the affirmation of the principle of open justice enacted by article 6 of the European Convention on Human Rights (ECHR). Among the various rules to respect, public access to adversarial arguments remains an issue, notably because of recent counterterrorist experiences. Although article 6, paragraph 1 of the ECHR guarantees "a public hearing," it subsequently stipulates that "the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society […]." It is therefore necessary to demonstrate the interest in not following the usual rules for public access to judicial proceedings by alluding to particular circumstances. As the supreme example of contemporary justice going against this principle, the trials of the 2000s that took place in the Guantánamo camp in an extrajudicial context are regularly referenced. [23]

14A less well-known and more recent European case illustrates another form of reappraising the principles of open justice. In October 2013, Erol Incedal and Mounir Rarmoul-Bouhadjar were suspected of planning the assassination of several political figures including the former British Prime Minister Tony Blair. This affair quickly took an unusual turn due to the decision to hold most of the trial in secret. The principal argument put forward to justify such a disruption of the judicial ritual was the possible flight of as yet unidentified accomplices. Faced with this gag order, the British media made different decisions: some boycotted coverage of the trial, but most accepted this situation that went against the customary British principles of open justice. Under these conditions, journalists were only allowed to attend a very small part of the hearings, and had to submit their notebooks to the security agencies, who put them under seal for several years. Even today, the journalists who only saw portions of these trials still do not have access to their notes and are accompanied by lawyers when they discuss this courtroom experience. It is the lawyers’ responsibility to define the limits of their evidence, and what should remain secret. In early 2015 we observed that the French trials of jihadist networks – as far as their organization, their accessibility and the ritualization of the hearings were concerned – were in keeping with the usual rules of public hearings and fair trials, despite their unusual aspects.

Discipline and Prosecute: Anticipating the "Risk of Terrorism"

19In the current context of the fight against terrorism, the intelligence services and their practices are paradoxically both a secret realm and one of the main showcases for action on security. [28] Most of the time, each wave of attacks leads to an extension of their powers and jurisdictions as a repercussion. Despite the numerous controversies during what was known as the "Tarnac affair" [29] or the attacks carried out by Mohammed Merah, the metamorphoses of the French intelligence services are generally in keeping with a joint dynamic of centralization and increasingly proactive action in the sense of anticipating risk: "We now have the means to anticipate risk, since that is our objective, after all. It is essential to intervene before a crime is committed." [30] Under these conditions, the role of surveillance techniques in criminal procedures, and their admissibility, are primary concerns.

20The possibilities for monitoring telephone or electronic communications have expanded greatly, as discussions on social media and the sharing of propaganda videos now represent an important part of the evidence in the trials we observed. "We therefore have, as with most of the cases heard in this court, hundreds of images and videos linked to ISIS, either on your Facebook page, or in the phones and computers that were confiscated during your arrest. How do you explain, for example, this photo with several well-known jihadists where you are smiling and holding a Kalashnikov?" [31] What is at stake in the judicialization of intelligence falls within this complex relationship between freedom, security and technology.

21From a legal perspective, the demarcation of the boundary between the administrative and judicial domains is clearly set by the various laws and decisions of the Constitutional Council. [32] The administrative domain deals with prevention whereas the judicial domain handles the repressive aspects of policing; the intelligence services cannot carry out their activities if a criminal infraction has been committed. And yet, in practice, the boundary remains uncertain between the clues enabling the confirmation of a threat justifying the implementation of administrative surveillance techniques and the elements that could indicate the preparations for a violent criminal act. The Tarnac affair in the 2000s illustrates this issue, as part of the surveillance carried out by the counterterrorist services was deemed to be illegal as far as the criminal procedure was concerned: "For me, the judicialization was clearly botched. They clearly gave too much leeway to the counterterrorist services." [33] In her final decision, the chief judge of the 2018 trial considered that this terrorist group was "a fiction," in particular by virtue of the absence of sufficient judicial evidence. In the court’s opinion, therefore, the secret may prove to be unsubstantiated, and consequently of no judicial value in coming to a verdict. As a result, the question of the boundaries between secrecy and fiction can remain undecidable. The defendants or their lawyers often speak of "fictions constructed by the intelligence services and the prosecution." [34]

22As a product of the interplay between the participants throughout the process of judicialization, the creation and control of secrecy is carried out at different levels of actions through institutional, legal, and operational channels. In this environment, secrecy seems to find part of its legitimacy in the capacity of these participants to simultaneously produce secrets that acquire visibility as judicial evidence.

From the Judicialization of Intelligence to the Processing of Judicial Evidence

23Although the balance between administrative and judicial investigations has undergone profound transformations since the early 2000s, the attacks in 2012 and 2015 have noticeably hastened the movement toward proactive justice. In other words, over time the process of judicialization has been taking place at an increasingly earlier stage, in order to track people suspected of involvement in terrorist activity. In Belgium, as the federal prosecutor there admitted, a tendency of this nature led to "an overwhelming of the judicial apparatus. The prosecutors open a criminal inquiry at the first sign of trouble, so we’re dealing with judicialization on a gigantic scale." [35]

24In the French case, grasping such matters requires an understanding of the cooperation between the intelligence services and the counterterrorism prosecutor’s office. Several difficulties stand in the way of these interactions: the intelligence services’ culture of secrecy, the need to protect sources (whether human or technical), or the third-party rule, which stipulates that information received from one service must never be disclosed to another service without the consent of the source. These complex ties are embodied in the "judicialization reports": "These are reports drawn up by the judicial police service, on the basis of classified elements collected by the intelligence service. A judicialization report’launders the intelligence,’ i.e. it declassifies it. It may sometimes be elliptical; however, it must be detailed enough to lead to the opening of an investigation." [36] As a consequence, the judicialization report constitutes a framework allowing for the institutionalized, legal creation of controlled zones of secrecy within the public sphere. The elements gathered by the intelligence services, such as intercepted telephone or electronic communications, are sorted and classified. Some information will become evidence, while other elements are rejected or kept secret in the context of investigations that are still underway.

25Developments in the doctrines of the intelligence services and in criminal policy are key to understanding the operational and legal dynamics of the implementation of this tool. The ever-earlier anticipation of the terrorist threat leads to the establishment of risk as the main element, to the detriment of the criminal act: "Certainly, today the will is there to judicialize upon receiving the very first elements… even if there is no clear threat. Everyone is on their guard, for fear of missing something and seeing someone commit a crime." [37] In becoming one of the main incriminating facts, the role of the intentionality of the act shakes the doctrine of criminal law, its system of evidence and the rights of the defense to their foundations. [38] In concrete terms, many cases in the French courts today are being brought against people with a vague plan of going to Syria or of preparing a violent act. These people are therefore being tried for what they might do and the presumed threat they pose. But an indictment in a counterterrorism investigation has consequences for those concerned by virtue of the specifics of being charged with a terrorist crime or infraction, which go from longer periods spent in custody to a greater number of investigative procedures used against them.

26Such an action, which is considered by some judges as meaning less time allotted to the intelligence services to the benefit of the judiciary, is seen as a guarantee for the rights of the accused, unlike the secrecy that structures decisions by the administrative police: "It’s better to have a judicial investigation than one by the intelligence services, it offers more guarantees." [39] Nevertheless, this approach based on preventive neutralization can also be analyzed as an assertion of the secrecy of intelligence within the judicial domain. This dissemination of secrets can be seen in the use of particular administrative notes during trials: reports from the prison intelligence services, for example, that end up "surprising" [40] the defense lawyers when they are presented by the prosecution after the trial has begun, or simply mentioned obliquely. Finally, the intelligence services’ administrative authority has pride of place in how sentencing is handled, as nearly all of those convicted in trials since 2015 are registered in the national database for terrorist offenders, [41] which imposes extremely strict measures of administrative surveillance during sentences and long after them.

Judges and the Sentencing Process

28Following the example of ordinary sentencing, judgments in terrorism cases are also the subject of much debate beyond the courtroom. And yet the statistics produced by the ministry of justice clearly show an unprecedented increase in the length of sentences: "Things have changed a lot between the sentences in the 2000s, when those who went to Iraq were sentenced to terms of five to six years, and today. In the magistrates’ court (correctionnelle), the sentences are usually from eight to ten years now." [44] In the face of the prevailing discourse of the "war on terror," and the will of some to conduct extrajudicial repression, the judgments seem inexorably marked by leniency. Actually, a discrepancy of this nature illustrates the clash between the belligerent objective of eliminating "enemies" and the rationality of criminal sentencing, torn between its functions as retribution for the crime being judged and as readjustment for the future convicted criminal. This confrontation leads to a real questioning of the meaning of sentencing in terrorism cases. [45]

29It is important to stress another aspect to get a better understanding of these controversies: the many varieties of indictments lumped under the same label, "criminal conspiracy in connection with a terrorist enterprise." [46] In practical terms, it is hard to perform an objective comparison between the sentence handed down to someone who mainly visited propaganda websites, and that of a defendant who had lived in Syria for several months while participating in combat. From our standpoint, the peculiar nature of deeds that are committed and yet brought together under the same criminal category leads to an obstacle in producing an overall, objective vision of the length of convictions for "criminal conspiracy in connection with a terrorist enterprise" since 2015. Nevertheless, when we are present at the solemn moments of the verdicts, one conclusion is obvious: nearly all of the defendants are found guilty and imprisonment is the norm. The increase in the number of those imprisoned for terrorism-related offenses underscores this tendency.

30Our interest in fully grasping the sentencing process requires us to look elsewhere, providing an opportunity to mention a third aspect of the secret in hearings: the deliberation room where judgments are reached. As an inaccessible place by definition, the deliberation room has been the subject of many portrayals. From published personal accounts to documentaries and feature films, this secret space appears as the symbol of an ostensibly democratic form of justice, as in Sidney Lumet’s film 12 Angry Men. The social sciences have also examined these moments, notably through the figure of the jury of ordinary citizens as a political or social agency. [47] In terrorism trials in France, juries comprising citizens were eliminated in 1986. Whether in the tribunaux correctionnels or the cours d’assises, counterterrorism law only involves professional judges, and so the issue of the French exception regarding the principle of a lay jury hangs in the background. [48]

31The objective behind the work on sentencing [49] that became so successful in the 1970s was to reveal this secret of judgments by attempting to explain the disparities between the decisions rendered. The results have led to an increasingly vast body of publications throughout the world, a slew of results that vary according to the approaches that are chosen: from focusing on the explanatory factors of the output [50] to analyses that emphasize the study of the interpretive processes of the decision-makers within a specific context. [51] This second path leads to privileging ethnographic analysis in order to get a better idea of the context in which the gravity of the act is judged.

Sentencing as Seen in the Social, Legal and Political Contexts

32From this perspective, the will to penetrate the secret of the sentencing process requires the recourse to contextual elements beyond the mere analysis of the judges and their individual actions. In moving beyond a vision exclusively focused on the judge as a person, we need to analyze the social, legal and political contexts of the judgments. The ethnographic experience ultimately confirms this necessity: during our years of observation, through the "faith of the courthouse," [52] we came to understand that some decisions were the result of a split vote by the tribunal or the cour. It is hard, then, to systematically attribute a decision to the chief judge, who may have been on the losing side: "Clearly, when drafting a judgment when only professional magistrates are involved, the role of the chief judge is perhaps less important than when one is dealing with a lay jury, where the chief judge plays a fundamental role." [53]

33This dimension is all the more important given that something else stands out with the terrorism trials currently underway: the specialization of the judges. This tendency, which has consequences for the sentencing process, is a result of the increasing number of trials – first in courtroom sixteen of the tribunal correctionnel, then in the cours d’assises spéciales beginning in 2019 – to the point where they take place almost daily. [54] "We have progressively refined our methods of judging and sentencing. If we sentence one jihadist group to seven years for organizing trips to Syria, the next group we judge, who fought in Syria, will be handled in the light of that decision." [55] The lag time that the tribunal correctionnel has experienced in its level of specialization compared with the cours d’assises is, in our view, one explanation for the differences we find in the severity of the first sentences that were handed down. Since September 2019, the specialization of the judges in the cours d’assises has become the general rule, as a result of both the increasing number of trials and the decision to limit the number of magistrates in the group dealing with terrorism cases within the Paris court of appeals.

34Finally, jurisprudence and criminal policy are a third major factor in this context. The trials in courtroom sixteen or the cours d’assises are judgments from courts of first instance that may lead to a second trial. Since 2016, the public prosecutor’s office has decided to systematically appeal every judgment that fell short of its recommendations, a position motivated by the "threat" posed by those convicted. "We understood perfectly that the prosecutor’s office had decided to appeal our decisions as soon as we diverged from their’jurisprudence.’ That’s the way things have always worked, but that pressure is something we feel all the time with terrorism cases." [56]

35Therefore, beyond the secrecy of deliberation, the convictions handed down in terrorism trials are a result of overarching processes that transcend the characteristics of the case in question or of the judges tasked with ruling on it. Moreover, the omnipresence of these contextual factors of specialization, jurisprudence and criminal policy lead to the conclusion that the principle of individualized sentences has been heavily undermined, in favor of an overall action whose goal is to convict those who have been labeled "terrorist enemies of France." [57]