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Alka Pradhan (of Reprieve) began the discussion by describing different litigation strategies that international lawyers used to challenge U.S.-led counterterrorism activities. Ms. Pradhan contrasted the way in which U.S. and non-U.S. courts handled such litigation. She stated that U.S. courts had often dismissed cases at the outset when the government raised the state secrets privilege. In contrast, the European Court of Human Rights (“ECtHR”) and some national courts had proceeded to hear the merits of these cases. For example:
Amrit Singh (of Open Society) litigated the Al-Nashiri case before the ECHR. She described the Al-Nashiri case and similar cases against Macedonia and other European states that took part in extraordinary rendition in the years after 9/11.
The panelists agreed that the state secrets privilege in the United States was excessively broad. Sandra Hodgkinson (a former Department of Defense and State Department lawyer) emphasized that it was consistent with U.S. foreign policy to handle justice matters at home rather than abroad. She noted that the United States “has stood on the principle of complementarity,” which maximizes U.S. jurisdiction by allowing U.S. courts to look into national security issues. Therefore, Ms. Hodgkinson stated that U.S. courts should “look at ways to make [the state secrets privilege] more narrowly tailored”—e.g., by evaluating evidence in camera to determine whether cases can go forward.
The panelists also agreed on the importance of the recent study released by the U.S. Senate Select Committee on Intelligence. For example, Julia Hall (of Amnesty International) stated that—based on its analysis of the Senate report—her organization had called for investigations in a number of countries. Wolfgang Kaleck (of the European Center for Constitutional and Human Rights) agreed that “a lot changed” with the release of the Senate report. According to Mr. Kaleck, European courts had not always taken seriously cases that challenged extraordinary rendition. He stated that the tides had now changed, and the same prosecutors who were “uninterested a decade ago” were now asking his organization for help in pursuing investigations.
The panelists disagreed to some extent about the foreign relations impact of cases regarding U.S. nationals in non-U.S. courts. Ms. Hall reported that European states were “constantly saying that they didn’t want to have their relations with the U.S. harmed.” She questioned this concern, noting that relations between Italy and the United States had not been harmed, despite Italy’s convictions of U.S. nationals. However, Ms. Hodgkinson stated that “a lot of political capital was expended” by both Italy and the United States in this case.
Andrew Blandford is an associate in Sidley Austin’s International Trade and Arbitration practice group in Washington, D.C.