4 - Complexity in the Courts: the Spatiotemporal Dynamics of the List

Summary

Chapter 4 follows the list into the EU courts and explores what happens when the pre-emptive security logics of the list meets the principles of judicial proof and evidence used in judicial review. The chapter empirically focuses on the reform of the procedural rules of the European General Court to allow judges to rely on intelligence material without disclosure for the first time. These reforms are explored as an attempt to resolve the complexities associated with judicially reviewing a list grounded in the use of intelligence-as-evidence and eliminate the kinds of norm conflicts seen in the Kadi case. These problems are analysed by highlighting the spatiotemporal dynamics of the list. It is argued that the listing assemblage is driven by dynamics of ‘non-synchrony’ and ‘dis-location’. Non-synchronous law is legality ‘out of sync’, composed of divergent temporal logics. Intelligence and evidence pull in different temporal directions and generate legal conflict. Judicial review is usually orientated towards a ‘decision’ in the past. But using intelligence-as-evidence defers this space of decision and confounds judicial review because the decision is no longer there. The term ‘dis-located law’ is used in this chapter to capture this dynamic process of fracture and deferral.