Between Law and the Exception: The UN 1267 Ombudsperson as a Hybrid Model of Legal Expertise

Security measures taken in the name of the ‘war on terror’ have frequently been understood to operate through a domain of exception, defined as an extra-legal space of intervention where normal rules of juridical protection and due process are suspended. Yet whilst most analyses of the exception are critically reliant on notions of legal threshold, they are largely dismissive of the potentially productive nature of legal contestation. This article inquires into the dynamic confrontation between law and exception in the context of the UN 1267 sanctions system, focusing on the Office of the Ombudsperson as an institutional experiment designed to remedy the fundamental rights deficiencies of the regime. Drawing on Agamben's analysis of the exception as a ‘hybrid space’ and Dyzenhaus's concept of the ‘legal grey hole’, our analysis of the Ombudsperson demonstrates the emergence of novel, hybrid procedures and evidentiary standards being deployed in the 1267 delisting process. First, we assess the Ombudsperson's logics of decision-making and argue that their appeals to fairness hinge on the production of a temporal chasm that legitimizes the deployment of intelligence material in listing cases. Second, we show that the Ombudsperson is in the process of carving out novel evidential standards that are more attentive to notions of inference and speculation than conventional standards of proof. These standards serve to fortify the use of sanctions as a pre-emptive security measure and do not, in principle, appear to exclude material that may be obtained by torture.