By David Nordell
The European Union’s efforts to fight terrorism have been dealt a severe blow by a decision reached on Wednesday by the EU’s own highest court.
According to reports by the on-line newsletter EU Observer and the Associated Press, the EU’s Court of Justice overturned a decision by the Union’s member states in 2001 to freeze the assets of Saudi businessman Yassin Abdullah al-Qadi and the Al-Barakaat International Foundation, a charity based in Sweden. Al-Qadi, head of the Saudi-based Muwafaq Foundation, had appealed to the Court of Justice against the EU’s decision to freeze his assets, a decision based on US Treasury findings that the foundation was a front organisation used to channel money to al-Qa’eda. Al-Barakaat, similarly, had asked the court to unfreeze some 1 million Swedish kroner ($150,000), money that the charity’s lawyers claimed was being used to fund aid programmes in Somalia.
The Court’s decision was not based on a lack of evidence supporting the decision to freeze the assets of the two organisations concerned, or even a suggestion that the EU states had discretion to ignore the United Nations’ anti-terror order obliging all member states to freeze assets used for financing terrorism. Instead, it was based on the fact that the EU procedure for blacklisting individuals and organisations alleged to be supporting terrorism didn’t provide for a proper right of defence and judicial review of the decision. According to the court’s ruling, "the rights of the defense, in particular the right to be heard and the right to effective judicial review of those rights were patently not respected."
This decision, and other previous ones overturning administrative action against supporters of terrorism, illustrates one of the central problems in the EU’s whole policy framework for counter-terrorism. On the one hand, the Union and its constituent states are bound to all the UN resolutions and orders aimed at fighting terrorism and its backers. In turn, they have their own laws and regulations enabling them to jail or expel terrorists, ban propaganda inciting to terrorism, freeze or sequester terrorism funds, and so on. But on the other hand, Europe is committed to a human rights regime, based on the European Convention on Human Rights and incorporated into national laws, that in many ways creates far stronger constitutional protections for individual rights than the US Constitution. Article Six of the ECHR, in particular, guarantees that anyone accused of a crime must be able to defend himself in court with equal access to the evidence available; and, by extension, anyone whose rights to ’equality of arms’ in court is violated has the right to seek a judicial review to overturn any verdict of guilt.
I’m not suggesting that the ECHR and its derivative national legislation are a bad thing or that they should be suspended or circumscribed. On the contrary, experience throughout the world has shown that innocent defendants are put on trial, condemned and jailed (or worse) because they are denied full access to justice. In a different context, this is what happened to our colleague Rachel Ehrenfeld, who was denied equality of arms in an English civil court, both by the underlying weak position of libel defendants and by the sheer crippling expense of mounting a proper legal defence. In terrorism cases, the problem is arguably worse, because some of the evidence is secret and some of the witnesses can not be cross-examined properly, or at all.
But at the same time, counter-terrorism is not like conventional crime-fighting. National authorities, from parliaments down to security services and police forces, have to interdict terrorism before attacks take place, whereas criminals are usually arrested, investigated and tried after they have acted. Time is of the essence: human lives and even the political stability of the state are at stake. If a suspected terrorist is not neutralised by being arrested, or perhaps killed, before he acts, all the criminal sanctions in the world remain nothing more than retribution, or at best a fairly ineffective warning to others. Similarly, if money destined to support a terrorist group, or operation, or even pro-terrorist propaganda, is allowed to move freely to its target, the subsequent investigations and punishments are relatively meaningless.
This is not just a dilemma for legal and political theorists, any more than restricting the freedom of speech of extremist imams who preach hatred and murder can remain a dilemma just for anguished human rights supporters, or for politically correct politicians. These are practical questions that need practical, and practicable, solutions.
However difficult it is to square the circle, I’d like to propose a way forward, one that doesn’t threaten public security but also doesn’t quash human rights -- which are, after all, one of the values that we are trying to defend against terrorists and their backers. First of all, when the UN, or the European Commission, or US Treasury, decides to put an individual or organisation on a sanctions list, it should provide a reasonable amount of evidence to other national authorities to back its decision: most of this evidence will necessarily be classified or sensitive, but there are established procedures to protect such information. Secondly, if a national or supra-national government decides to act against a black-listed individual or organisation, it should necessarily act first -- preventive detention, asset-freezing or whatever -- but it should be obliged to back up its action by judicial proceedings within a reasonable time, proceedings in which the defendants can examine at least the unclassified evidence and which give them the opportunity to prove their innocence. But third, given the sensitivity of the evidence, the legal system in each country concerned should be reinforced by judges and defence lawyers who are security-vetted and operate under a clear obligation not to share especially sensitive evidence with the defendants themselves or outside parties: provided the judges are well trained, they should be able to weigh up all the available evidence fairly. And fourth, if someone is falsely accused as a result of negligent state action (as opposed to mistakes made in good faith), he should have the right to sue for damages. Given a system like this, if a future Yassin al-Qadi, or whoever else, is suspected of financing terrorism, it will remain possible for state authorities to freeze his assets, probably for long enough to frustrate any planned terrorist operations, while guaranteeing that the suspect can produce evidence -- if it exists -- to show where the money came from, where it was intended to go and for what purpose, and prove beyond reasonable doubt that he wasn’t supporting terrorism.
No doubt such a system will create its own problems, not least a heavy burden of litigation and associated intelligence work. But it’s certainly better than the current situation in which actions genuinely carried out for the sake of national and international security, and even genuinely necessary, get overturned by judges who are perhaps over-zealous for human rights, merely because state authorities didn’t create a proper system of checks and balances. British appeal judges, in particular, have shown themselves to be very intolerant of decisions, whether administrative ones or those of lower courts, that rode rough-shod over defendants’ human rights. No doubt some of them could in turn be criticised in the court of public opinion for imposing their own political leanings on national security; but this is no excuse for leaving the current situation uncorrected.
I would go even further - human rights are not relevant in this cases, when only financial assets are being held by a state's decision.
Otherwise I may claim the government is violating my rights by collecting taxes!
Posted by: dotmad | September 04, 2008 at 11:41