Intelligence Failures in France? The Complex Reality of Information Sharing

In the aftermath of the terrible attacks in Southern France, French intelligence agencies are facing calls for an investigation into alleged intelligence failures. The suspect, Mohammed Merah, had been put under surveillance and questioned by intelligence officials after trips in Afghanistan and Pakistan, where he claimed to have been trained by Al Qaida. Both in and outside France questions have been raised as to whether the surveillance was sufficient and if intelligence information about him should have been shared earlier with the police. For instance, after the first killings, his mother’s IP address had given police investigators a strong lead. The assumption is that if more information about Merah had been shared sooner between intelligence and law enforcement agencies, authorities may have been able to prevent the third attack on the Jewish School. The question remains then, in the context of counter-terrorism should information-sharing between intelligence- and law enforcement agencies be intensified?

There is a difference between collecting intelligence for national security purposes and gathering evidence for criminal investigations. This distinction relates to the allocation of powers to police officers and the specific powers allotted to secret agents. For the intelligence services, it is important that their sources remain secret, whereas the right to a fair trial requires that during the criminal trial phase, the public prosecutor and defence counsel have equal access to the evidence. Subsequently, intelligence agencies are careful about sharing information with the police. In practice, information-sharing even among intelligence agencies is challenging.

Until the events of this month, France had not suffered from a Jihadist terrorist attack for almost two decades. In part, this has been the result of the focus of intelligence agencies in France, which during the last ten years have focused on fighting Jihadi terrorism and international cooperation. French intelligence and secret services mainly fall under the executive branch. Judicial investigations into criminal offences are initiated by the public prosecutor’s office. At his or her own discretion, the public prosecutor may request an investigating judge or examining magistrate to direct the investigation. Additionally, there are specialised counter-terrorism public prosecutors and investigating judges, who reside in Paris and are given significant authority in terrorism cases. The intelligence and security services and specialised public prosecutors and investigating judges have a close relationship and almost all terrorism-related court cases have used information that was gathered by the intelligence- and security services. However it should be noted that there is only a small group of public prosecutors and judges who are fully aware of the types of techniques, information and assessments that are used. This interconnectedness between the secret - and intelligence services and the public prosecutor may lead to their independence being compromised.

In retrospect immediate information-sharing between French intelligence and law enforcement agencies about the so-called ‘lone-wolf’ Mohammed Merah appears evident. Unfortunately, reality is more complex. First of all, it was not clear until the police tried to arrest him after the third attack that Merah was the key suspect. Furthermore, after the first two murders, it was not initially evident that they were conducted by a home-grown terrorist. Moreover, there is the sheer quantity and quality of information that is collected, processed and analysed. Many people from France may travel to Afghanistan and Pakistan: Is it possible to put them all under surveillance? Even if you profile more specifically, how do you predict who poses a real threat? What are the indicators? And, are there side-effects of predictive profiling for human rights such as the right to equal treatment or privacy? Despite promising efforts to develop smart surveillance methods, which are often based on new technological developments, one cannot keep track of all (self-)radicalised individuals in Europe. Thirdly, legitimacy and proportionality concerns arise: To what extent is it justified that security- and intelligence agencies put individuals, even small-time criminals and/or extremists, under surveillance and share this information with law enforcement agencies? Even if information-sharing is conducted smartly, i.e. focused on those that pose a real threat, human rights law requires that appropriate safeguards against abuse are established. This entails that the circumstances as well as the requirements that apply to information collection, -sharing and -mining, should be clearly formulated in the law.

Last but not least, one can question whether more information-sharing between intelligence- and law enforcement agencies is effective in terms of preventing terrorism? After the failed attack by Umar Farouk Abdulmutallab, who attempted to blow up Northwest Flight 253 on Christmas Day 2009, it became evident that there had been intelligence failures. In fact, Abdulmutallab’s father had reported his son, who was becoming increasingly more radical, to the American embassy in Nigeria, but this was not reported to the FBI or the Department of Homeland Security. Junior intelligence officials did not connect the separate pieces of intelligence information, which could have identified the Christmas bomber before he boarded his plane as a risk to national security. Also, politicians and senior intelligence officials alike had failed to recognize the extent of the international terrorist threat stemming from Yemen. This example reflects that, while the importance of information-sharing between secret services and the police is evident, its effect on preventing terrorism should not be overestimated. Therefore, before considering to increase information-sharing between intelligence- and law enforcement agencies, one first has to assess just how effective this exchange really is.