No, We Don’t Have a Patriot Act

Two more! Drop by drop, the Guantanamo detention camp empties. On Jan. 6, two Yemeni prisoners were transferred to Ghana, where they regained their freedom. The two men, arrested in 2001 in Afghanistan, were deemed releasable in 2010 due to the “minimal risk” they posed to U.S. security. The problem was finding them a host country because it was out of the question to return them to Yemen.

And with these two gone, there are now only … 105 detainees in that nearly 15-year-old prison that, despite his 2008 campaign promises, Barack Obama has not closed. There are certainly many fewer prisoners than the peak number of 677 in 2003. But the camp is a relic of the George W. Bush-led war on terror that his successor in the White House would happily be rid of.

Mr. Obama has, however, been more ambiguous about another relic from this era: the Patriot Act. It was not until the revelations regarding the massive surveillance exercised by the U.S. from the 2013 Snowden affair on Oct. 26, 2001 that the Democratic president called for the reform of this vast security legislation adopted in the wake of the 9/11 attacks.

Heavy Artillery vs. Carbine Fire

For several months, and especially since the Nov. 13, 2015 attacks, the idea has taken root, both here and across the Atlantic, that France is flirting with its turn at a Patriot Act, a “Gallic Patriot Act.” France has its own George W. Bush, a provincial president-turned-warmonger and “first cop of France.” That, [along with the fact that the country is] faced with the threat of terrorism, [means] Paris would inevitably jump feet first into the trap of sacrificing civil liberties on the altar of security. We have become the France of “diminished liberties,” declares The New York Times in an editorial calling on parliament to reject the proposed constitutional amendment.

Really? The extraordinary political and media frenzy over the issue of deprivation of nationality serves as both a catalyst and a screening mechanism. By concentrating on this initiative — which has been disserved by catastrophic management from the executive — critics are making the mistake of looking through the small end of the telescope. Because compared to the heavy artillery of the security system the U.S. put in place after 9/11, the citizenship revocation measure for binationals is just carbine shooting.

In shock from the dual attacks on the World Trade Center and the Pentagon, American power adopted — by near-unanimity and in the space of six weeks — a 132-page law, the famous Patriot Act, which granted federal agencies virtually unlimited surveillance powers, prolonged the period of police custody from two to seven days, considerably reinforced immigration controls and modified the abilities of certain courts. The collective set of measures France has adopted since the January 2015 attacks doesn’t go nearly as far.

More impressive still was Bush’s excessive use of presidential powers after 9/11. This executive intoxication, which other powers fell prey to for at least a year while opposing voices stayed silent or inaudible, is the most striking sign of the drift that occurred during this troubling period. There were executive decrees that gave birth to Guantanamo and to military tribunals, which tried suspects under statutes that came out of nowhere, and “illegal enemy combatants,” a legal invention designed to skirt the Geneva Conventions for prisoners of war. There were sometimes secret executive decrees, which extended the NSA’s surveillance powers, authorized indefinite detentions, sanctioned the CIA’s abduction of suspects abroad and legalized the use of torture in interrogations. In a 2007 book, “Unchecked and Unbalanced,” two American lawyers, Frederick Schwartz and Aziz Huq, describe “monarchist claims of executive power,” in which zealous action seemed to face no resistance.

Bulwark against Abuse

This uncontrolled use of special presidential powers was actively supported by the Department of Justice and its lawyers. Because beyond the fight against terrorism, the neoconservative ambition of re-establishing a strong presidential power that could wash away the humiliation of Watergate was at work. George W. Bush had been a rather harmless governor of Texas. Once in Washington, he was simply an executor of this larger neoconservative vision.

We in France are far from this American tableau. Those who perceive a threat to freedoms from the constitutional changes are mistaken. On the contrary, lawyers agree that the changes are a bulwark against abuse. We can easily detect a voter calculus at the Elysée, not the messianic breath of neoconservatives. The political and media unity that encouraged the Bush administration, frankly, is also not the rule in Paris. The liveliness of the current debate over civil liberties and the outcry raised by the deprivation of nationality and by the attempts at strengthening police and prosecutorial powers at the expense of the investigating judge enshrined in the new anti-terrorism draft law prove at least one thing: Critical minds and opposing voices are playing their role in post-attack France, much more so than they did in America after 9/11. This is rather healthy and somehow reassuring.