Paris attacks

Typically, this blog does not focus on immigration law. That seems to me appropriate. After all, most immigration questions are, while matters of profound importance to Americans, not really questions of national security. To be sure, the immigration function resides within DHS because Congress thought that security concerns needed to be paramount, but any fair assessment of the immigration law begins with the reality that the vast majority of immigration decisions are related to economics and politics and that by and large national security plays a background role in the discussion.

On November 20, the Security Council adopted Resolution 2249, condemning ISIS’s recent attacks and exhorting all states to prevent and suppress the group’s terrorist activities. The Resolution is in some ways a predictable response to recent developments, but it contains one interesting provision that is worth parsing from an international law perspective.

Operative Paragraph 5 (OP5) reads as follows:

Yesterday, French President François Hollande signed into law a bill that extends the state of emergency for three months and expands the government’s already broad police powers. Passed in haste, the law avoided a preliminary constitutional review. Meanwhile, the government has urged other far-reaching legal and policy changes to enhance counterterrorism.

The modern world is a virtual panopticon, a surveillance state which records huge quantities of data about our every action and provides an easily retrievable metadata record of our movements, our contacts, our purchases, and our activities. This panopticon has two potential functions: prospective and retrospective. The prospective function is to stop the bad guys before they do the bad thing. The retrospective function allows intelligence and law enforcement authorities to comb through data following an event and piece together what happened.