The European Court of Justice’s final decision in Kadi II—Yassin Abdullah Kadi’s challenge in Europe to his designation as an international terrorist financier—has stimulated significant discussion on the relationship between European and international law. Less attention has been paid to the Kadi II’s correlate in U.S. courts, Kadi v. Geithner, decided in the D.C. Circuit. The varying outcomes in these cases create a “transnational split record” that has implications for reform of multilateral counterterrorism sanctions.
This Note considers the impact of Kadi’s legal challenges in the United States and Europe from the perspective of U.S. counterterrorism policy. Part I describes the legal architecture of asset freeze designations in the United States and its relation to terrorist “blacklisting” at the United Nations. Part II compares the European Court of Justice and D.C. Circuit decisions, noting how the U.S. decision preserves unilateral U.S. sanctions enforcement, while the European decision threatens the multilateral enforcement process upon which U.S. counterterrorism policy substantially relies. Part III suggests steps the United States can take to address issues associated with targeted asset freeze sanctions after Kadi II, both under domestic law and internationally.
Acknowledging the concerns addressed by the European Court of Justice, in future domestic challenges, U.S. administrative law can be better utilized to acknowledge the rights of designees to meaningful judicial review. Internationally, U.S. support for an Implementing Protocol to the International Convention for the Suppression of Financing of Terrorism would ground multilateral obligations in international law and reinforce the legitimacy of the international counterterrorism finance regime.