Counterterrorism Blog

The EU Court of First Instance, the EU's 2nd highest level appellate court, has struck down the EU designation of a significant Iranian opposition group, the People's Mujaheddin (OMPI) on the ground that OMPI didn't have a fair hearing before its assets were frozen.

This is a further sign of the growing effort to require judicial oversight of national security designations made by national governments in the area of economic sanctions against terrorism. In theory, the same justification could be given for requiring EU governments to prove that Al Qaeda is a threat to the EU and to give Osama bin Ladin and Al Qaeda the opportunity to be heard before their assets could be frozen,

When I was in the USG during the Clinton Administration, our recurrent nightmare in the use of economic sanctions was that a judge somewhere, someday, would decide that he or she had the independent right to review all of the facts we had used to make a national security designation of a particular group, to reach the judge's own decision of whether a designated entity was or wasn't a threat to the U.S.

It was my view then, and remains my view now, that to answer civil liberties concerns governments need to develop open source information to justify terrorist designations, and to place such a package of information in the public record each time a designation is made. Treasury-OFAC now often does this, although the accompanying public material tends to be very summary, and far less than that which might be needed in a judicial setting.

In principle, in the US a judge can determine whether the government in making a national security determination had a rational basis for reaching the determination -- a very low, administrative law standard, not one that requires the government to prove that the judge would have reached the same decision it made. In practice, because US courts give such wide discretion to the President on this issue, challenges to OFAC jurisdiction are very rare, and almost never succeed.

But in the EU, transforming the question of whether a country has adequately justified its imposition of economic sanctions on national security grounds into a purely judicial determination requiring a trial of the facts on the merits and a high standard of proof has the potential to substantially undermine the ability to use sanctions against people who are engaged in independent military action against civilian targets.

For now, the invalidation of this group's designation by the European court represents one further European retreat on economic sanctions against terrorists. Besides having had an alliance with Saddam Hussein, the organization has or had ties with: Amal, the Kurdish Democratic Party of Iran (KDPI), the Palestine Liberation Organization (PLO), Al Fatah, and other Palestinian factions, and reportedly the Taliban.