# Data Collaboration: the Aftermath of Operation Sirli

Jean Paul Hanon, Didier Bigo

► To cite this version:

Jean Paul Hanon, Didier Bigo. Data Collaboration: the Aftermath of Operation Sirli. Political Anthropological Research on International Social Sciences (PARISS), 2023, 4 (2), pp.1-14. 10.1163/25903276-bja10050. hal-04680939

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# Data Collaboration: the Aftermath of Operation Sirli

Jean Paul Hanon

Écoles de Saint-Cyr Coetquidan, Centre de recherche des Écoles de
Coëtquidan (CREC Saint-Cyr), Guer (Morbihan), France

hanon.jean-paul@orange.fr

Didier Bigo

Emeritus Professor of International Political Sociology at Sciences Po Paris,
Paris, France

Part time professor at Kings College London, London, UK
Corresponding author

didier.bigo@kcl.ac.uk

Received: 22 October 2023 | Accepted: 22 October 2023 |

Published online: 20 November 2023

## Abstract

This article analyses the collaboration between the French external services and the Egyptian government of President Sissi. In a first part, it recounts the revelations of the Disclose journalists in 2021 and their interview with an anonymous source, as well as the follow-up investigation in 2023 by the European Consortium of Independent Journalists. In the second part, the two authors comment on the relationship between data cooperation and counter-terrorism activities, the way in which the sale of arms and spying tools undermines the legitimacy of cooperation, and the way in which the French government has used the argument of defence of secrecy to prevent investigative journalists from investigating the issue.

## Keywords

data-politics – counterterrorism – Egypt – France – investigative journalism – Whistleblower – impunity – monitoring – oversight
Introduction

On 21 November 2021, the investigative web magazine Disclose published a report on Operation Sirli, a secret operational cooperation between the French Military Intelligence Directorate (DRM) and the Egyptian security services of Marechal President Abdel Fattah Al-Sissi.

Launched in February 2016 and still ongoing, it involves the surveillance of the Libyan border in the name of ‘fighting terrorism’. However, Disclose’s investigation revealed that the Egyptian army mainly used the information gathered by the French services against smugglers (often cigarette smugglers) to find and kill them, considering that this smuggling was linked to terrorist activities. After nineteen raids, with several hundred victims, recorded between 2016 and 2018, and despite the warnings of the French forces involved on the ground that this was unrelated, it seems that they were ordered to continue the cooperation with the Egyptian government led by Marechal President Sissi, since this cooperation was considered “strategic” for France in geopolitical terms, but also for securing French arms sales and the regime’s espionage surveillance technologies.

It could have been kept secret, but one source, either alone or representing a group of people involved in the operation, felt it was his duty to go public because it was a disgrace for France to have such a cynical attitude. They contacted the Disclose journalists and their revelations were based on this source's testimony, backed up by hundreds of documents classified as “defence secrecy”, explaining the circulation of information between the Military Intelligence Directorate (DRM), the Ministry of the Armed Forces and the Armed Forces Headquarters

Despite the emotion of the public after reading what had happened, and the recognition of the courage of the source who had spoken out in the Disclose publication, which was also reproduced in a number of newspapers and other media,<fnref n="1" /> the French government maintained its policy of total silence, refusing to comment on the facts and taking legal action against the journalists and the anonymous source for breaching defence secrecy.

Two years later, on 19 September 2023, the French government asked a public prosecutor assisted by the DGSI (a police organisation responsible for counter-terrorism within the Ministry of the Interior) to place the journalist Ariane Lavrilleux, working for Disclose, in police custody (“garde à vue”). She was held for 39 hours (out of 48) and her home was searched, along with all

<footnote n="1">1 The EIC consortium of investigative journalists, the newspapers Le monde, Liberation, Médiapart, the Guardian, and the Amnesty Lab reported the case in support to Disclose in 2021, and again in 2023. See our part II.</footnote>
her computers and equipment. She refused to reveal the name of her source in the name of the right to confidentiality of sources granted to journalists. At the same time, a member of the military suspected of being the source himself or of knowing who she was, remained in police custody for 48 hours. He could face up to seven years in prison.

The exacerbation of the discretionary power to decide on the scope of
defence secrecy is more pregnant in France than in other democracies.
Beyond its historical roots in colonial wars and defence matters, it has received
considerable impetus in the contemporary period, manifesting itself in threats
to journalists and whistle-blowers, restrictive legislation, limited access to
archives, and relentless political attempts to limit the means and powers of
oversight authorities, whether judicial, administrative or legislative. In the
name of often deliberately coined concepts such as “national security”, “state
of emergency” or “extended fight against terrorism”, the French state has
gradually built up an organisational structure dedicated to protecting all the
information it deems confidential, at the expense of public control and, of
course, fundamental human rights. Conversely, the technological advances
made by French companies in the field of large-scale surveillance and big
tech have fostered unspoken partnerships between the state, the military,
the intelligence services and the defence industry as a whole, allowing for
undisclosed arms sales and technology exports. Information and data on these
technologies, their use and their buyers must be kept out of the public eye.
The data war thus consists of a constant back and forth between hiding what
should be public and avoiding accountability. In this respect, “Operation Sirli”
proves to be symptomatic of a double political game, internal and external,
which is reluctant to speak its name.<fnref n="2" />

First Part: Disclose (Verbatim)

“Neither I, nor those I know who have contributed to this dissemination of
information, are political opponents, anti-republican or anti-French activists,

<footnote n="2">2 We are partly reproducing our article published in the journal *Cultures et Conflits* which in 2021 has been part of the different academic publications who considered that it was important to relay this testimony of the source where he explained that it was necessary to break defense secrecy in a democracy: “defense secrecy must not be used beyond legitimate purpose and cover specific political and market interests. For the French version of what we have translated in English in the first part of this article see directly Disclose https://disclose.ngo/fr/ and C&C https://www.cairn.info/revue-cultures-et-conflits-2021-3-page-83.htm.</footnote>
or in the service of a foreign power. Quite the opposite, in fact. What is breaking the silence are the excesses of French political and military action, which deeply undermine the very reason why men and women are in the service of France. There is no need to be naive either. Of course, wherever they are, the public authorities justify certain actions on the grounds of “the superior interests of the State”, labelled as such without reference to their people, without explanation, without debate. This is why oversight of executive action is so valuable, and why it is non-existent in autocratic regimes. In our country, in the field of defence and armaments, it is almost non-existent and, above all, the meagre attempts made have no real effect. If Parliament could really play its role, we wouldn’t be in this mess. In short, it is the dysfunctions of our system that lead groups of individuals like us to transgress the rules established to maintain it, because that is precisely what it should not be.

Nor is there any blissful pacifism, “out of touch” as they say. Personally, and I think this is shared by everyone I know, I believe that France needs a strong army. Arming ourselves or exporting weapons is not a “French shame” in itself. But it is when our leaders use our armies without learning the lessons of history; it is when they violate international treaties, and infringe France’s commitments and its history; it is when they make a mockery of the consequences of their actions; it is when they misuse the prerogatives granted to them by the Constitution to make decisions on their own, without consultation or scrutiny; it is when the interests of the French people, the general interest, take second place to so-called strategic or security objectives. Some political decisions deviate from “the fight for France”; they lead our soldiers, who are committed to France, to die in order to complete such a distortion, and they destroy populations, children, killed by the weapons we have sold. Telling those who serve France that these issues are beyond them or that they must trust their leaders no longer works, and more and more civil servants and soldiers are feeling this unease. Those who speak out and act do not do so in a spirit of superiority, ideology or ownership of the truth, but in the name of their own conscience, which rejects complicity, and in the name of collective responsibility, because if we don’t do it, no one else will. When internal diplomatic and military analysis notes are ignored, when political leaders are deaf to sympathetic appeals, silence is no longer an option.

So obviously France needs strategic partners. But Egypt is not one of them, never has been and never will be. The military say it, write it, but that doesn’t stop our leaders from saying the opposite at the top of their voices. The fact that our warships need to cross the Suez Canal, that our fighter planes fly over the Sinai and that French companies do business in Egypt does not make Cairo a strategic ally. For years, Egypt was a minor partner: few exchanges, few
high-ranking visits, no serious economic or defence partnership – still none, in fact. But then Sissi came to power and bought Rafales from Le Drian. From then on, Egypt was promoted to the rank of strategic country. This was not the case in the early 1980s, when Egypt made massive purchases of other war materiel. Today, however, we need a “narrative”, as they say, to get this kind of decision across. The pretexts of the war against terrorism or regional stability provide the perfect scenario to justify our mercantile and “sovereign” action. Who can believe that Sissi’s current authoritarian regime is stabilising the region? Who can believe that our Rafales and Navy frigates are helping in the fight against terrorism? But it doesn’t matter, we have to sell in order to maintain our industry and our “army format”, without the French people or their representatives having any say in this format or its ambitions, and this “whatever it costs”. All this undermines the credibility of French action and the Republic, and supports the deadly logic and the very evils we claim to be fighting. Blind patriots will want to excuse us, but we cannot ALWAYS remain silent. De Gaulle said “Defence is the primary raison d’être of the State. It cannot fail to do so without destroying itself”. We should add that by justifying all its actions by defence and security, it can also destroy its democratic identity.

**Disclose: Why do you want to make public the existence of Operation Sirli?**

If this cooperation made sense, if it met specific objectives, if it contributed something to France, no one would question it. But that's not the case. Several levels of the army have questioned it because our forces are extremely busy and have no time to waste. They get nothing out of it, no information on the fight against terrorism, it's written in black and white in several reports. Then, while they are supposed to be helping in the fight against terrorism and monitoring the chaos on the Libyan border, they find themselves complicit in a hunt for civilian traffickers in the desert and in indiscriminate bombing, in the service of a brutal regime.

**Disclose: Did you realise the risks involved in releasing classified documents?**

I would obviously have preferred them not to be. Just as I would prefer the people's representatives to have access to information that affects France and therefore the French people. But the current system is built in such a way that it protects itself first and foremost. There is no other option but to break the rules it lays down if we hope to change it.

**Disclose: In France, the law does not protect whistle blowers against “compro- mising national defence”. Are you aware of this?**
I'm obviously aware of the legal risks if my identity were to be discovered. But I also have my own personal conscience and responsibility that oblige me. I just hope that the substance will be considered, rather than the form, because let's put things in the right order: it's more serious to take part in the murder of men, even traffickers, than to reveal a note stamped "confidential defence".

Disclose: Was there anything in particular that motivated your decision?

My decision was taken after I was certain that there was no other alternative to questioning our action with Egypt. This operation is symptomatic of a system with no checks and balances, capable of being complicit in assassinations in the greatest secrecy for years. It is time for this to stop.

Disclose: Do you think that releasing this information puts the French military personnel deployed in Egypt at risk?

The French military have been assisting the Egyptian army since 2016 and have never been threatened in any other way. This is the only reason that could have prevented me from speaking and prevented those who sent me certain documents from not doing so. I demanded that no names of deployed soldiers be made public.

Disclose: Operation Sirli has no official existence. How do you explain this?

The operations of the Directorate of Military Intelligence (DRM) are not public. But with this one, there is a double embarrassment: it is criticised internally because it does not serve France's interests and because it participates in targeted operations that do not contribute to the fight against terrorism. It is difficult to be proud of this. It should also be pointed out that no minister likes to announce bad news, such as the termination of a cooperation mission, so they can continue to use this French gesture in their bilateral discussions.

Disclose: To your knowledge, has Operation Sirli contributed to the killing of civilians by the Egyptian army? Only civilians have been killed. You mean civilians who are not terrorists?

The answer is yes, because as the DRM's records show, the terrorists were not covering that part of the desert.

Disclose: Was there a written agreement governing the mission?
At the start of the operation, the DRM tried to get the Egyptians to sign an agreement governing this cooperation, and therefore this operation. But the Egyptian side never agreed to sign it and France ultimately abandoned the idea. This agreement would have obliged the two parties to describe in black and white the framework of the cooperation, the type of mission and, above all, its limits. What is most disturbing is the use by the French authorities of a cooperation that they know is deadly to try to obtain information that they do not get. What's more, this kind of complicity prevents any genuinely critical and credible French discourse on repression and human rights.

Disclose: How do you explain the fact that, once elected, Emmanuel Macron continued the operation begun a year earlier by his predecessor?

In 2017, when he was elected, France still had high hopes of selling more weapons to Egypt: additional Rafales, an additional satellite, refuellers. So obviously, under these conditions, the bilateral relationship could not change. As long as the political cost of selling arms remains manageable, there is no reason to believe in a change of course.
(end of verbatim)

## Second Part: Breaking the Cycle of Secrecy and Impunity: Still a Long Way to Go

As Operation SIRLI exemplifies it, transparency, accountability and impartial media coverage must be guaranteed and not impeded on the national territory. The European Investigative Collaborations (EIC) of journalists, with technical assistance from Amnesty International's Security Lab, have reacted to the policy of intimidation of the French government against Anne Lavrilleux by publishing additional elements. They have worked on over these two years, on the role of arms dealers, private spyware companies, political personnel linked to the military establishment and individuals who had served in previous cabinets of the French presidency. They have revealed a new dimension of the operation in terms of the personal financial interests for part of this conglomerate engaged in related clandestine activities that cannot objectively be considered as protecting the French people or even French interests.<fnref n="3" /> These

<footnote n="3">³ To counter this move of resistance by investigative journalists, it is important to notice that some media, especially the 24 hours news channels, have on the contrary unleashed a campaign against the journalists who have discovered the facts, ignoring on purpose the</footnote>
activities of surveillance abroad and the sale of espionage software such as "Predator" by a private company (formally Amesys and rebranded under the name of NAXA mixing French and Israeli personnel) are closely linked to the French policy of support for Marechal President Sissi. It highlights the fact that this policy is not only a government policy but is also linked to the profit of some individuals, sponsored by some politicians, acting against the official policy declarations of the French government that they have only collaborated against terrorist activities.

It seems that, for the time being, these companies and the networks in which they are embedded are gaining total impunity in their trials through the use of defence secrecy, despite the fact that, in any democratic regime, there are specific limits to defence secrecy, a statement that cannot be used as a magic word to protect criminal activities.

We will argue below that defence secrecy, in France or in any other representative democracy, has a specific set of enactments that must be controlled and monitored by effective independent oversight. Defence secrecy cannot be used at the sole discretion of the president or some of his (former) collaborators, or by the members of the secret services themselves.

This raises important questions, which the French case illustrates, but which go beyond this case and concern all democratic governments that allow their own secret services to share information and personnel with dictatorships in the name of counter-terrorism cooperation. It is important to find a way to control the role of arms sales and data interception technologies in a democratic regime. In other words, in a world where data is becoming part of warfare, it is necessary to control the foreign policy sphere and the activities of the secret services in order to keep them within the framework of "democratic practices", which require a minimum of respect for inalienable human rights.

All these norms are in flux after the political and moral catastrophe of extraordinary rendition and torture by proxy carried out by the CIA and its complicit allies. As we see, international and European courts have given some indications, but they are still intimidated to challenge the decisions of the part of the State, the so-called deep State, that considers itself above the law.

content of what happened. They have framed a narrative formally opposing defence secrecy versus the protection of sources of journalists and tried to convince that the later was obliged to respect the former, by principle, without examining the case. This presentation in terms of balancing is biased, since the facts reported below are not logically and ethically covered by the principles of defence secrecy, and here, distorted for private and ideological interests. For an analysis of the different attitudes of groups of journalists regarding whistle blowing see Bernardino de las Reyes; An analysis of post-Snowden civil society accountability in Bigo D, Mc Cluskey E, Treguer F (ed) Transnational oversights in times of emergency: who watch the watchers, Routledge, 2024.
What the above testimony reveals about what has just happened in Egypt, with the supply of sophisticated military equipment ranging from eavesdropping systems to the sale of Rafale fighter jets and the loan of French pilots for surveillance missions by a private company, shows the limits of the argument that France's foreign policy – of which the fight against terrorism is a major element – is in no way responsible for, or even concerned by, what happens on French territory.

The argument that France is being attacked for what it is – a democracy defending the universal value of human rights – is certainly not entirely unfounded. There is indeed hate speech against Western values, especially those of a secular France that dares to think of a society without God, in which man is solely responsible for his actions. But for this argument to be valid, there must also be a certain correspondence between what France proclaims and what it shows in practice through its actions. In reality, however, the pompous proclamations of a certain moral superiority in the fight against terrorism, which simply forbids any comparison between adversaries, lead to a whole series of compromises – even compromissions – with direct or indirect parties to a conflict that is seen only from the perspective of the fight against terrorism, and whose real objectives diverge profoundly depending on the actors involved. This entanglement of logics and interests, in which local oppositions, separatist aspirations, authoritarian regimes and the so-called global fight against terrorism are superimposed on the same territory, undermines both the propaganda logic of foreign groups that boast of placing the jihadist revolution at the heart of old, long-standing conflicts, and the oversimplified statements of intervening forces that say they are only acting for the good of the people.

These statements are even counterproductive and lead to an escalation of violence when they are made at the very moment when certain actions, on the contrary, demonstrate a cynical policy that combines mercantile interests with a caricatured vision of war in which any enemy of my enemy, no matter how brutal, becomes an unfailing ally in the fight against terrorism, even if the enemy uses it for other purposes. It is not possible to wrap oneself in the democratic values of the nation – which are very real – and at the same time pursue a policy of selling arms and participating in armed operations that help to kill people who have no history of terrorism or militancy and who target the civilian population of an entire village, political opponents or petty criminals who simply displease the regime with which one has allied oneself. This is not an ethical error or a utilitarian logic that can be excused on the grounds of the effectiveness of the process. It is a grave political error that increases violence and gives the opposing parties arguments to recruit. It is therefore scandalous
to repeat these discourses on democratic values when they have previously
served as a cover for a clandestine commitment, protected by defence secrecy,
in favour of a party to the conflict which is not at the forefront but which is a
structural factor: the authoritarian government.

Aid to dictatorial regimes, whether new or “old friends” of colonial
France, cannot be reconciled with the objectives of an officially selective
and particularly targeted fight against terrorism. The continuing mistakes of
the Americans and their allies in Afghanistan with the warlords have been
repeated in the different context of the African policy of François Hollande
and Jean-Yves le Drian, for whom France’s regional influence means supporting
regimes that are, to say the least, questionable. It should be remembered that
this policy, resumed by President Macron and by Jean-Yves le Drian himself
after his transfer from defence to foreign affairs, has had the effect of provoking
protests from the civilian populations of Mali, Togo and Chad by prolonging
and distancing itself from them. As a result, these options have partly led
to the “francophone bloc” increasingly “distancing” itself from the effects of
the French presence, which is accused of exacerbating problems rather than
solving them.

The argument of the employment of French workers in the arms industry,
used as a last resort to justify this “double game”, is appalling because it shows
contempt for the lives of others and a double accounting of the realities of
the targets and victims who must be saved and those who can be abandoned
at any time and are ultimately considered as mere collateral effects. In fact,
the ad nauseam repetition that these arms sales and collaborations with
authoritarian countries are essential for equipping the French armed forces
and that only the proceeds from exports will enable the French armed forces
to have adequate and sufficient armaments is untenable when set against the
effects they produce. It would therefore be better to look at the financial waste
caused by the disintegration of the European defence industry, but this is a
much more difficult path to take because it calls into question an export policy
under the influence of the captains of industry and their strategic choices.
The preference is therefore for opportunistic supplies to the most repressive
states, which also insist on secrecy. If we add that war has its own laws and
that the fight against terrorism should not be part of them, since it is the most
opportunistic appropriation of any military intervention, there are grounds for
rethinking the dimensions of the military tool. This is the courage of this person
who has decided to denounce these practices and this double game that only
the “chiaroscuro” of state secrecy can conceal. This makes him not a traitor
to the nation but an objective defender of its democratic values, far removed
from those who, under the guise of the fight against terrorism, are quick to
forget them as soon as economic or political gains are possible. Some people will undoubtedly take offence and insist on “indiscipline”, refusal of orders and strict legality, but this makes us forget that legality must have legitimacy in order to make law, and it is important to remember this point in an electoral context where people constantly refer to the Vichy period and the actions of General de Gaulle. Each of us must know when it is necessary to rebel in the face of unjustified orders to keep quiet in the ranks. The Disclose revelations are part of this call for “civic” order and cast a harsh light on the practices of French foreign policy in Egypt, which is exercised through a Realpolitik limited to an extremely restricted circle of decision-makers who dare to decide on the national interest without external control, and who use defence secrecy to try to act with impunity. This document is, in fact, a statement of facts and a clear recognition of the excesses that occur when the cynicism of a foreign policy makes the mercantilism of arms sales a reason of state. But this is not its only purpose. It is also, and undoubtedly above all, the story of a situation of political and military, tactical and operational “absurdity” denounced by those involved in all the reports and analyses that draw the attention of the French politicians who commissioned the operation to the harmful effects of their decisions on the ground.

Absurdity that does not lead to progress in the fight against terrorism, but to the death of people who disturb the Egyptian authoritarian order. It should be remembered that if the Rafale planes sold to Egypt are used to “eradicate” cross-border trafficking, on the basis of French intelligence, in an area where terrorist activity is practically non-existent, it is because the so-called preventive anti-terrorist logic, by combining surveillance and technological punishment, seeks to develop a “tracking matrix”, in which the sale of surveillance software by the French government to the Egyptians will lead to the death of people who disrupt the Egyptian dictatorship, in which the sale of surveillance software by the French companies Naxa Technologies (under investigation for acts of torture and disappearances), Ercom Suneris (Thales) and Dassault Système contributes to the organisation of the endangerment of members of opposition movements or those assimilated to them, and forms part of an extrajudicial process of eliminating suspects without arrest and without any criminal logic. In short, the French government is well aware that the simultaneous supply of arms and surveillance technology to Egypt is leading to an even greater deterioration in the rule of law there. The same seems to be true of the dictatorial regimes of Libya, Saudi Arabia, the United Arab Emirates and parts of sub-Saharan Africa, to which we are also selling the combination of surveillance of their opposition and the weapons needed to contain it. We therefore feel it is necessary to highlight the mechanisms by
which violence is spiralling out of control on a regional scale as a result of a post-colonial mercantilism that combines arms and surveillance technologies. It is not unreasonable to think that the pursuit of these supply programmes in these countries is systematically diverted from its declared objective, in which case the cynical and realistic French actors are either the last of the “naïve” or they initiate transnational unofficial collaborations in the medium and long term between political actors, secret services and private arms dealers. These collaborations neutralise the reluctance of the other local actors involved in these practices, as well as the control mechanisms that should exist. The only thing they can do is to use their contacts as “leverage in bilateral discussions”, which are also kept secret, and their continuation is supposed to be guaranteed “as long as the political costs remain manageable”, despite their harmful impact on human rights.

Far from being the product of circumstances and small bureaucratic mistakes getting out of hand, we seem to be dealing with an organisation that is deliberately creating an architecture in which the objectives of arms and technology sales take precedence over other diplomatic priorities and contribute to maintaining the dynamics of the spread of violence, rather than trying to put an end to it. Internally, this means a loss of autonomy for democratic control and the introduction of laws and decrees where the fragmentation and the means and powers given to the legislative, judicial and administrative control authorities are designed to fail. The worm is in the fruit; it is the internal integrity that is at stake. And, as the author says, it is based on the absence of any popular or parliamentary debate aimed at “defining France’s higher interests”, i.e. the type of foreign policy that is desirable and the corresponding format of the armed forces. French citizens are co-responsible for the treaties and agreements signed in their name and should not tolerate the death of populations resisting autocracy or the use of their soldiers for mercantile interests. These revelations are also an example that should make us question the circularity of the logic of state secrecy. From the moment that statements are made based on documents that are supposedly irrefutable – because they are classified – and that must remain secret, national leaders cannot answer for the facts that are attributed to the forces on the ground and to the politicians who validated or demanded them. In practice, it is rare for the publication of confidential documents to be accompanied by an explanation from the source. Usually, for obvious reasons of protection, journalists’ revelations are not accompanied by any comment on their source(s). But this is not the case here, and the arguments put forward by “the source”, who understandably belongs to a select group that may not be protected by French
legislation on whistle-blowers, are instructive, well-documented and detailed,
as well as courageous.

These questions are not purely speculative, or the product of minds haunted
by the political nightmare of an invasive secret infecting the whole of society.
The facts are stubborn and prove that we are indeed in the presence of a
political orchestration of secrecy. In November 2020, the General Secretariat
for Defence and National Security (SGDSDN), under the supervision of the
Prime Minister, issued a General Ministerial Instruction (IGI 1300) on defence
secrecy, restricting access to archives beyond the normal period of fifty years.
In June 2021, a new draft law allowed 'some documents' to be kept secret until
'their operational value is exhausted', a vague notion with no time limit. In
January 2021, in the name of national security, the Council of State confirmed
the extension of intelligence files to include political opinion, trade union
membership and health information, without the knowledge of the person
concerned. In April 2022, the Constitutional Court upheld the provisions
of the Penal Code that allowed investigators to invoke defence secrecy to
conceal surveillance operations. As a result, a public prosecutor can invoke
defence secrecy without the approval of a judge when it is necessary to
identify a criminal and protect national security. In July 2023, senators and the
government joined forces to deny the National Commission for the Control
of Intelligence Techniques (CNCTR), the only independent authority for the
oversight of state surveillance, the resources and means it had requested
to monitor the most intrusive intelligence techniques. In its final report
of 2022, the Commission admits that it "lacks adequate means of control
when it comes to the most intrusive techniques or those that allow for the
collection of large amounts of data". Moreover, the Commission "does not
have a comprehensive and clear vision of the whole surveillance system at
the disposal of the intelligence services". In October 2023, the protection of
the secret of national security triggered a full investigation into the journalist
behind the 'Operation Sirli' revelations, which included forty hours in police
custody and the confiscation of her phone, laptop and notebooks. In reaction
the Predator files disclosed by the journalists revealed the extent to which a
surveillance marketing nexus based on French companies had secretly sold
surveillance software to authoritarian regimes with the complicity of former
French officials.

The political structuring of secrecy in France is not surprising in a country
where political leaders have a long habit of avoiding oversight of public policy
for fear of being held accountable for their decisions in a highly centralised
system. Secrecy is therefore organised at the political level in the form of legal
restrictions, rules, unspoken practices, powerless supervisory authorities,
which by design evolve according to circumstances but still follow the same pattern. Secrecy, and this is a novelty, also seems to be increasingly the product of the militarisation and “policiarisation” of the technology companies involved in the surveillance industry, whose main client is the state: from now on, an objective alliance links the police, the military, the state and the technology companies, inside and outside, a common endeavour that requires an organised silence.

This raises the question of how the concept of secret defence is used by the executive at the highest level, and of the need for parliamentary or judicial control procedures that can define the limits of what is legitimately covered by secrecy and what has been placed there for private interests or interests unworthy of a policy that claims to be based on democratic values, both internally and externally. In the Fifth Republic, it is still all too easy to deprive judges and parliamentarians of their full powers of control by restricting the scope of their investigations, classifying documents as defence secrets, and limiting the work of the press and access to archives. It is this political structuring of a certain impunity that means that “silence is no longer an option” because “if we don’t do it, no one else can”, so it is not simply a question of pleading for whistle-blower status, but of comparing the democratic structures of contemporary countries and their relationship to arms sales and surveillance technologies. The way in which the French executive branch organises its own impunity upstream, through political, legal and administrative control structures that are (by design?) not very autonomous, not very powerful, and that cannot seriously investigate actions abroad, maintain the country in an unenviable situation compared to other democracies.

Lastly, the order to remain silent without discussion and the maintenance of justifications that contradict the practices are a more than symbolic transfer of responsibility from politicians to the military. In other words, if French soldiers are to be properly equipped, they will have to accept and share the moral cost of a foreign policy that makes counterterrorism a necessity, with its share of violations of human dignity. Taken to the extreme, French society as a whole would be asked to give its consent, in the absence of democratic control, on the grounds that its defence must be guaranteed. All in all, the most regrettable aspect of this attitude is that the “fait du prince” and its allies prohibit any critical debate, any prior or subsequent control. And finally, it casts doubt on any military intervention aimed at containing a level of violence that the international community considers intolerable, on the grounds that its validity or moral scope would depend on a suspect foreign policy. The stakes are high: defence secrecy is part of a larger game, a struggle for the truth of the facts and the data behind them: silence is therefore unacceptable.