Who protects researchers from the state ?
Marwan Mohammed (CnRS)
Marwan Mohammed is a sociologist at the Maurice Halbwachs Center (CNRS) in Paris. His main research interests are inequality, crime, and racism. He is currently conducting comparative research on careers and markets in organized crime in France and the United States. He has published several books on youth gangs, desistance, or racism. His latest book is on the politicization of the word "communitarianism" (edited with Julien Talpin at the Presses Universitaires de France). He has given the Deradicalization the City team a lecture on February 9th, 2022.
When we look at the content of the cases in which the criminal justice system has targeted humanities and social sciences researchers in the in the course of their work, we see that the latter have worked on a limited number of themes such as environmental and health problems, banking, and financial crime, and especially on "subversive" and/or marginalized groups. In other words, the criminal risk increases when a researcher deals with subjects targeted by the State.
Many cases concerning democratic societies have been studied [1]. Among these, there is that of Rik Scarce, an American sociologist specialized in the study of the radical environmental movement. In 1992, one of his privileged informants was declared a "suspect" by the FBI after an attack - the previous year - on an laboratory conducting experimentations on animals. He was summoned before a grand jury, with whom he refused to cooperate. He was prosecuted and convicted for contempt of court and spent half of 1993 in detention.
In Great Britain, Bradley Garrett also had to face his country’s criminal justice. In 2008, he conducted doctoral research in sociology on the "urban explorers". These groups were then prosecuted for photographing places to which access was illegal. After the publication of a book containing some of the incriminated photos, Bradley Garrett was accused of having published "illegally obtained" information. He was then arrested at the airport, handcuffed, stripped of his computer and equipment, searched (with confiscation of fieldnotes, emails, interviews, etc.), before finally being cleared at trial, although he was facing up to 8 years in prison. He did not have the support of his institution.
The case of the Boston College Belfast Project is also instructive. Set up between 2001 and 2005, its objective was to contribute to the history of Northern Ireland through the creation of an oral archive based on the testimonies of Irish republicans and loyalist paramilitaries. Public statements by some of the participants in the research have led to the opening or revival of several investigations. In March 2011, in the name of a judicial cooperation agreement, the U.S. judiciary subpoenaed Boston College to get access and turn over the recordings of some of the respondents, and eventually all the audio documents. The three researchers involved, supported by the American Sociological Association (ASA), tried in vain to oppose the judicial injunctions, despite the fact that Boston College had contractually agreed not to transmit the recordings except in the case of written authorization or the death of the respondents.
In France, one of the most emblematic cases concerns Thierry Dominici, who conducted empirical research for his doctoral thesis on the use of violence in various Corsican armed groups. He conducted observations and interviews with more than a hundred members of clandestine groups, some of whom were suspected of being involved in the assassination of Prefect Érignac. A doctoral student of Corsican origin conducting fieldwork on island nationalism, it did not take much more for him to be perceived as a suspect by the judicial police officers of the National Anti-Terrorist Directorate (DNAT). Thus, because of this suspicion and the climate of political tension between the state and the radical Corsican nationalist groups and of the absence of legal protection, Thierry Dominici was followed, photographed, listened, searched, handcuffed and questioned in front of all his neighborhood. In addition to considerable personal and family traumas, his data were not restored to him, the policemen of the DNAT made "leak" some elements of the procedure to ends of destabilization and intoxication putting him directly in danger as well as the participants in this research. His image in the academic world has also been damaged, as police suspicion has been extended to certain academic spaces. As he summarizes it himself, he had "become both a traitor to the Corsican cause” (for certain dangerous activists who did not understand his sociological investigation) and a sort of accomplice (unmasked by the DNAT) of the terrorists and, incidentally, of the assassins of the Prefect of the region.
Who protects researchers from the state ? This was the meaning of an article I wrote in the Rebonds pages of the newspaper Libération on November 8, 2015 [2]. In the context of a post-attacks state of emergency, I questioned the conditions of possibility for research on such sensitive subjects as violent "radicalization" and terrorist involvement. This old and latent reflection became public through the attacks of early 2015 and the strong incentives of the National Center for Scientific Research (CNRS) to respond to a call for research projects on "radicalization". This took place in a context of a state of emergency that granted police forces derogatory means, particularly in terms of surveillance and house searches. For example, it was possible to keep a very close eye on "targets" as well as their presumed entourage. In the continuity of this call for projects, the CNRS tried to identify researchers who consulted propaganda sites favorable to armed struggle or terrorism in order to "prevent possible prosecutions" and "to be able to respond quickly to the DGSI” (Direction Générale de la Sécurité Intérieure). The former director of the National Institute of Humanities and Social Sciences (a sub-organ of the CNRS) then acknowledged that "the law is dangerous for researchers. If we don't prove that they consult jihadist sites as part of their research, they risk two years in prison and a 30,000 euro fine". And to add without providing details that "researchers have seen the services of the DGSI (Directorate General of Internal Security) land on their premises or in their laboratories, which have taken their computers” [3]. If the state of emergency has been repealed, many of its exceptional provisions have become permanent by being integrated into common law. If a researcher appears on the radar of the police and gendarmerie, particularly in the field of counter-terrorism or the study of organized crime, the legal power of intrusion of the services is considerable and the right to functional protection of researchers in case of an attack for defamation will not be a shield.
Our profession implies a moral contract with the participants in our research, a contract of trust implying a form of loyalty and the guarantee of the inviolability of the information transmitted. However, this academic ethic does not carry much weight in the face of the legal machine. We are not journalists, whose status brings protections despite their limits and the threats that weigh on them. It is however the same democratic issue. More than three years after the publication of this article in the newspaper Libération, the situation has evolved in a paradoxical way in France. The question of the status of data has given rise to multiple initiatives from both the political power and the academic world. On the side of the government, it is the "gag" procedures and the risk of censorship they pose to the academic world that have been deemed a priority, notably through the report released in April 2017 under the direction of legal scholar Denis Mazeaud [4]. The report's recommendations are limited to the possibilities of automating and strengthening the right to functional protection for serving academics, which is a clearly insufficient step forward.
In the academic world, a multitude of initiatives have emerged in the wake of the implementation of the new European legal framework for personal data protection. This "European data protection package," which came into force in May 2018, clarifies and makes researchers handling "sensitive" data more accountable. However, it does not provide much regarding their inviolability and the legal protection of sources. The need to protect research participants thus translates into an increasing bureaucratization of access to the field by paradoxically reinforcing the risk of censorship and the placing of research in the humanities and social sciences under tutelage.
[1] Atlani-Duault L., Dufoix L. (dir.), « Chercheurs à la barre. Les sciences sociales saisies par la justice », Socio, n° 3, 2014, Paris, Maison des Sciences de l'Homme. ; Laurens S., Neyrat F. (dir.), Enquêter : de quel droit ? Menaces sur l'enquête en sciences sociales, Paris, Editions du Croquant, 2010.
[2] https://www.liberation.fr/debats/2015/11/08/qui-protege-les-chercheurs-de-la-surveillance-de-l-etat_1412098. This article was published a few days before the Paris attacks of November 2015.
[3] https://www.francetvinfo.fr/monde/terrorisme-djihadistes/le-cnrs-demande-aux-chercheurs-qui-consultent-des-sites-jihadistes-de-se-signaler-pour-eviter-des-poursuites_1954527.html
[4] Broyelle C., Filiberti E., Malabat V., Mazeaud D., Surel Y., Rapport sur les procédures bâillons, Paris, La Documentation Française, 2017.