Original Post
The ACLU and Center for Constitutional Rights filed a lawsuit Monday challenging the Treasury Department's regulations preventing them from filing a lawsuit on behalf of the father of American-born al Qaeda inspirational leader Anwar al Awlaki challenging the U.S. policy of targeting people like al Awlaki for assassination. (More here.)
If that sounds like a convoluted sentence, it is, but it's complicated. Put more simply: One of the agencies in the Treasury Department is OFAC, the Office of Foreign Asset Control. They keep lists of certain people, businesses and groups, in categories like "specially designated narcotics traffickers" (SDNTK)and "specially designated nationals and blocked persons (SDN)which includes "global terrorists" (SDGT.)
Once a name goes on one of the lists, it is a federal crime to conduct any business on the listed person's behalf or take any money from the person or someone acting for them -- unless you apply for and are granted a license to do so. (There's also a list of "Significant Narcotics Traffickers" created by executive order of the President under the Foreign Narcotics Kingpin Designation Act and many other kinds of lists.)
This applies to lawyers who want to represent a listed person in or out of court. You can't provide legal services until you get a license.
Once you get a license, in the usual case (where the lawyer wants to be paid), the funds are then unblocked and you can accept the money. Even then, you have to send Treasury an accounting every three months of all funds received for the life of the license (and if you didn't get any money during that quarter, you still have to send a letter or report saying so.)
The application process is not onerous once you do it the first time. I also don't think OFAC is stingy with granting licenses. But it can take anywhere from 3 weeks to 3 months for the application to be acted upon.
So Anwar al Awlaki's father asked the ACLU and Center for Constitutional Rights (neither of which charge clients legal fees) to represent him and bring a lawsuit challenging the U.S. targeted assassination policy that included his son, Anwar al Awlaki.
But before they got the suit ready for filing, Anwar al Awlaki was added to OFAC's list of "specially designated nationals and blocked persons" as a "SDGT" (specially designated global terrorist.) Which means the ACLU and CCR can't file a lawsuit on his behalf without a license, even though they don't intend to take money from him. Here's the most recent list, dated August 3, 2010, with his designation:
AL-AULAQI, Anwar (a.k.a. AL-AWLAKI, Anwar;
a.k.a. AL-AWLAQI, Anwar; a.k.a. AULAQI,
Anwar Nasser; a.k.a. AULAQI, Anwar Nasser
Abdulla; a.k.a. AULAQI, Anwar Nasswer); DOB
21 Apr 1971; alt. DOB 22 Apr 1971; POB Las
Cruces, New Mexico; citizen United States; alt.
citizen Yemen (individual) [SDGT]
The ACLU and CCR applied for a license but wanted it right away, and the license takes time. So yesterday, they filed their lawsuit challenging the legality of OFAC's requirement that they obtain a license before filing suit for Al Awlaki's father when they aren't taking money from him.
In early July, CCR and the ACLU were retained by Nasser al-Aulaqi to bring a lawsuit in connection with the government's decision to authorize the targeted killing of his son, U.S. citizen Anwar al-Aulaqi, whom the CIA and Defense Department have targeted for death. On July 16, however, the Secretary of the Treasury labeled Anwar al-Aulaqi a "specially designated global terrorist," which makes it a crime for lawyers to provide representation for his benefit without first seeking a license from OFAC. CCR and the ACLU have sought a license, but the government has not yet issued one despite the urgency created by an outstanding execution order. CCR and the ACLU have not had contact with Anwar al-Aulaqi.
The real issue here is of course the targeting of al Awlaki. The ACLU says:
"The government is targeting an American citizen for death without any legal process whatsoever, while at the same time impeding lawyers from challenging that death sentence and the government's sweeping claim of authority to issue it. This is a dual blow to some of our most precious liberties, and such an alarming denial of rights in any one case endangers the rights of all Americans," said Anthony D. Romero, Executive Director of the ACLU.
But first, they have to clear the hurdle of being allowed to file the lawsuit in the first instance:
The ACLU and CCR charge that OFAC has exceeded its authority by subjecting uncompensated legal services to a licensing requirement, and that OFAC's regulations violate the First Amendment, the Fifth Amendment and the principle of separation of powers. Today's lawsuit asks the court to invalidate the regulations and to make clear that lawyers can provide representation for the benefit of designated individuals without first seeking the government's consent.
"Attorneys shouldn't have to ask the government for permission in order to challenge the constitutionality of the government's conduct."
Personally, I don't think any lawyer, including retained counsel, should have to ask the government's permission to represent a client. But, given that the process isn't onerous and OFAC is pretty reasonable about granting licenses and doesn't dictate what you can charge (at least when the listed person is a criminal defendant and representation is sought for that pending proceeding -- civil and administrative proceedings are different), I don't think a lot of lawyers have filed challenges to it. They just learn to live with it.
I suspect the ACLU's challenge will soon be moot as OFAC will probably grant the license before the lawsuit challenging the policy is heard in court.
Adam J. Szubin, director of the department’s Office of Foreign Assets Control, said it would “work with the A.C.L.U. to ensure that the legal services can be delivered.”
The more interesting lawsuit will be the one challenging the targeted assassination policy.
The lawsuit that CCR and the ACLU seek to file would charge that the government has not disclosed the standards it uses for authorizing the premeditated and deliberate killing of U.S. citizens located far from any battlefield. The groups argue that the American people are entitled to know the standards being used for these life and death decisions.
"President Obama is claiming the power to act as judge, jury and executioner while suspending any semblance of due process," said Vince Warren, Executive Director of CCR. "Yemen is nearly 2000 miles from Afghanistan or Iraq. The U.S. government is going outside the law to create an ever-larger global war zone and turn the whole world into a battlefield. Would we tolerate it if China or France secretly decided to execute their enemies inside the U.S.?" He added, "This sets a dangerous precedent for other countries that will only lead to more violence and further diminish the rule of law."
The documents in the case are here.
As an aside, how does one challenge being placed on an OFAC list of designated persons if one can't use the services of a lawyer? Well, there's rules for that too.
The penalties for violating the OFAC sanctions program are severe. In some cases, the penalty is 5 or 10 years (I can't remember which), but under the Foreign Narcotics Kingpin Act, it's up to 30 years in prison and a $5 million fine.