Has The ‘War on Terror’ Put Due Process on the Stand? Why the ECJ’S Approach in KADI II Should Be Used Across the Atlantic

Abstract

The European Court of Justice (ECJ) struck a balance between due process rights and national security in the Kadi II case. Applying the ECJ’s analysis to a case recently decided by the D.C. District Court – the Zaidan case – illustrates that a more rights-protective approach can be attained in US courts too. First, this article will explore due process in Europe via the four different versions of the Kadi case. Then, it will take an in-depth look at the Zaidan case. The article concludes by arguing that the D.C. Circuit Court of Appeals should adopt a stance on due process similar to that taken by the ECJ in the Kadi II case – which served to uphold the rule of law in Europe by making the actions of public officials reviewable before EU courts in the counter-terrorism context. By exercising a more ‘muscular’ attitude towards the other branches of government’s counter-terrorism measures, the US judiciary might use this case to start a new line of precedent distinct from prior US cases with respect to US citizens’ constitutional rights in the post 9/11 counter-terrorism paradigm.