By Paul Rosenzweig, The George Washington University Law School
In the wake of the 2015 Charlie Hebdo tragedy in Paris, many questions emerged about the failure of the French surveillance system. Let’s place the Hebdo attack in the context of the challenges that surveillance agencies face. We ask them to be effective 100% of the time, but we also want them to act in a limited, privacy-respecting way. Where is the balance?
The Charlie Hebdo Attacks
In January 2015, two Islamic jihadists named Said and Cherif Kouachi, stormed into the office of the French satirical weekly newspaper, Charlie Hebdo. Their objective was to exact revenge against cartoonists employed there who, in their judgment, had mocked the prophet Mohammed.
The two men—brothers—killed the journalists, two police officers, a maintenance worker, a visitor, and injured 11 more, before they were cornered and killed.
Meanwhile, another Islamic sympathizer, Amedy Coulibaly—who may have coordinated his attacks with the Kouachi brothers—took hostages at a kosher supermarket in Paris, where four more innocent Parisians died before he, too, was gunned down.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
The World Reacts to the Hebdo Attacks
Twitter and Facebook exploded with the ‘Je Suis Charlie’ hashtag, and Instagram photos. The French marched in solidarity with the cartoonists. World leaders flocked to Paris in demonstrations of support. And the next issue of Charlie Hebdo was translated into more than 16 different languages, publishing more than 3 million copies, which sold out in short order.
The assault on free speech and free expression proved unavailing.
Hebdo Attacks: The al-Qaida Connection
At least one of the Kouachi brothers, Said—and possibly both of them—had taken weapons training in Yemen, and interacted there with senior leaders of al-Qaida in the Arabian Peninsula.
By some accounts, Said Kouachi met with Anwar Awlaki, the American-born sheikh who later died in an American drone attack. The younger brother, Cherif, claimed Awlaki had financed the Paris attack.
The Sketchy History of Hebdo Attackers
The Kouachi brothers were not unknown to the French anti-terrorism forces. Cherif had been arrested by French authorities in 2005. He was convicted of supporting terrorism and sentenced to three years in prison, where it seems he connected with people who were important in French militant circles.
Likewise, Amedy Coulibaly was said to have been on a U.S. terror watch list for quite a while before the attacks.
In retrospect, we know all this now. And we ask ourselves what went wrong at the time?
Learn more about surveillance in America.
Hebdo Attacks: Did the Surveillance System Fail?
After Charlie Hebdo, the French intelligence services faced some of the same questions that recur after any terrorist incident. The most obvious is captured nicely in a Washington Post headline: ‘After Paris attacks, questions about intelligence failures’.
In short, people were asking with that kind of background, how is it that the Kouachi brothers went unobserved? The failure is magnified, it seems when we learn that at least one of them had been under surveillance until six months before the attack and that he actually had been downgraded as a threat.
More Questions Than Answers
Another question comes at the problem from the opposite direction. It asks ‘Why Reams of Intelligence Did Not Thwart the Paris Attacks?’ That’s a New York Times headline. In other words, even with all that intelligence, we somehow missed the plot.
Put colloquially, the Post asks were we doing enough? The Times asks were we doing too much of the wrong thing? Or perhaps even more pointedly, does surveillance work at all? A third, much broader question is whether—and how—surveillance programs can be conducted in a way that fosters freedom, and respects privacy and civil liberties while still being effective.
Hebdo Tragedy: Attack on Free Speech
The point is particularly poignant and brought home by the fact that Charlie Hebdo was a forum for expressing free speech. It would be a cruel irony indeed, if the same steps that France took to protect the newspaper wound up, in the end, chilling its freedom of expression.
The attack nicely captures the “damned if you do, damned if you don’t” nature of the problem of security and surveillance. And so, let’s use it as a prism for introducing some concepts about surveillance.
The Surveillance State
In 1929, Secretary of State Henry L. Stimson famously said, “Gentlemen do not read each other’s mail.” Stimson shut down the Department of State’s cryptanalysis office, making it impossible for the U.S. to decode the diplomatic cables of other nations.
Stimson was not a moron; nor was he a stranger to military conflict. He ably served six different presidents, and had been Secretary of War under President William Taft, in the run-up to World War I.
Rather, when he closed the cryptanalysis office, Stimson was expressing a view about espionage and secrecy that was more of a moral and a normative conclusion than a practical one.
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Surveillance: Crossing the Ethical Line?
Note that Stimson did not say reading other people’s mail doesn’t work. And he did not say, reading other people’s mail works, but it comes at a cost to liberty that isn’t worth it. Those would be more utilitarian questions about effectiveness and cost. Rather, he simply said that surveillance was out of bounds among gentlemen.
A decade later, President Franklin Roosevelt recalled Stimson to service as Secretary of War after the Japanese attack on Pearl Harbor. And all during World War II, the U.S. cipher bureaus and those of its allies intercepted communications all over the world.
Can Democracy and Secrecy Coexist?
Today, we face a similar defining moment. We worry again about whether our democratic institutions are sufficient.
We need to think about the balance between transparency and effectiveness. Effective oversight of the surveillance state requires the surveillers to be at least somewhat transparent. At the same time, complete transparency would easily frustrate legitimate security objectives.
The French faced many of the same questions in the wake of the Charlie Hebdo tragedy. The public wanted to know enough about what its government was doing to set a balance between effectiveness and accountability in the intelligence sector.
In France as in the United States and elsewhere around the world, that frames the tension quite well—between transparency and secrecy.
Common Questions about the Charlie Hebdo Attacks and Surveillance State
In January 2015, two Islamic jihadists stormed into the office of the French satirical weekly newspaper, Charlie Hebdo and killed 12 people. Their objective was to exact revenge against the cartoonists who, according to them, had mocked the prophet Mohammed.
After the Charlie Hebdo attack, the French intelligence services faced some tough questions, such as how did the terrorists go unobserved, given their background; and, despite all the intelligence on the attackers, how did the authorities miss the plot.
With Charlie Hebdo as context, a big question that the surveillance state faces is whether—and how—surveillance programs can be conducted in a way that fosters freedom, and respects privacy and civil liberties while still being effective.