The Kadi Case: Court Decisions on Due Process for Terrorist Listing Differ in EU, U.S.

Printer-friendlyPrinter-friendly EmailEmail
Date: 
April 3, 2012

Yassin A. Kadi, a businessman and citizen of Saudi Arabia, purused court challenges to being placed on terrorist lists in the European Union (EU) and United States (U.S.). The process and standards used by the EU and U.S. courts differ substantially, leading to different results: the EU courts have ruled the EU listing process lacks fundamental protections, violating EU human rights standards, while the U.S. courts rejected Kadi's constitutional claims.  

Partially in response to EU court decisions finding fault with the United Nations' listing process, in December 2009 the Security Council established an Office of the Ombudspersion in Resolution 1904 to provide better procedures for people and groups petitioning to be removed from the UN's terrorist list.  This process has been praised by the Department of State's top counterterrorism official, but U.S. procedures have not been changed to provide similar due process protections. This timeline tracks the history of Kadi's court cases:

TIMELINE OF KADI LITIGATION IN THE EU AND U.S.

 Date  Court/Agency  Action Taken
 Oct. 12, 2001  U.S. Dept. Treasury Office of Foreign Assets Control (OFAC) Kadi put on list of Specially Designated Global Terrorists (SDGT), U.S. assets frozen, announced in Treasury press release
 Oct. 2001  UN  Kadi put on UN list
Oct. 15, 2001 U.S. Dept. Treasury (OFAC) Letter sent to Kadi notifying him of listing and asset freeze and advising of his right to request reconsideration
 Oct. 20, 2001  EU  Kadi put on EU list, funds frozen as a result of UN listing
 Oct. 26, 2001  U.S. Dept. Treasury (OFAC)  Notice that Kadi has been put on SDGT list published in the Federal Register
Dec. 2001  EU Court of First Instance (General Court)  Kadi files challenge to EU listing and asset freeze based on denial of fundamental due process
Dec. 21, 2001  U.S. Dept. of Treasury (OFAC)  Kadi petitions OFAC for reconsideration of listing and asset freeze
March 12, 2004 U.S. Dept. of Treasury (OFAC) OFAC denies Kadi delisting request in 20 page memorandum
Dec. 2005  Switzerland  Swiss investigation results in Kadi being taken of the Swiss list (Switzerland not a member of EU)
Sept. 2005  EU Court of First Instance (General Court)  Dismisses Kadi appeal, saying compliance with EU law not considered because UN Security Council has primacy. Kadi appeals to EU Court of Justice.
Sept. 3, 2008  EU Court of Justice (higher court0 EU Court of Justice rules in favor of Kadi, saying UN agreements cannot have the effect of prejudicing constitutional principles agreed to in the treaty establishing the European Community.  The court found the EU regulation allowing listing and asset freezes to breach fundamental human rights, since no evidence was communicated to Kadi, and the right of defense and effective judicial review were prejudiced. It gave EU authorities three months to remedy these defects, leaving the sanctions in place during that time.
Oct. -Nov. 2008  EU Commission (sanctions agency)  EU Commission sends brief summary of UN reasons for the Kadi listing, giving Kadi opportunity to comment.  
 Nov. 28, 2008   EU Commission   EU Commission renews listing and asset freeze against Kadi
Jan. 16, 2009 U.S. District Court for the District of Columbia Kadi files suit against OFAC challenging designation and asset freeze based on evidence and raising constitutional claims regarding due process, free speech and protection from unreasonable seizure of assets
Feb. 2009  EU General Court (formerly First Instance)  Kadi files new challenge to second listing and asset freeze in EU
Sept. 30, 2010  EU General Court Court ruled in favor of Kadi, noting that the UN procedure, despite improvements in establishment of Ombudsperson Office to make recommendations on delisting requests, lacks fundamental due process protections, including sufficent notice of the charges and denying "most minimal access to the evidence against him."  It said "In essence, the Security Council has still not deemed it appropriate to establish and independent and impartial body responsible for hearing...decisions taken by the Sanctions Committee."  (paragraph 128)
March 19, 2012  U.S. District Court for the District of Columbia The Court dismissed Kadi's lawsuit, holding that evidence gave OFAC sufficient "reason to believe" that Kadi provided support to terrorists or people associated with them.  It also left open the question of whether or not Kadi had sufficient financial ties to the U.S. to require due process protections, since it found that even if he did the OFAC reconsideration process is sufficent.  The court also distinguished the case from Al Haramain and KindHearts rulings (which said OFAC process for U.S. based charities is unconstitutional), saying Kadi "is a foreign national,with significant overseas ties and assets." (p. 60)

More background on the Kadi case in the EU available here and here.