OFAC Grants License to ACLU, CCR To Sue Over Targeted Assassinations

Bump and Update: Today, OFAC granted the license to the ACLU and Center for Constitutional Rights to represent the al Awlaki's. (If you read my post below from this morning, you'll see I predicted that. Why? Aside from the news interview with the OFAC spokesman, as I wrote, the licenses are liberally granted so that lawyers don't challenge the government's authority to make you get one. (According to the OFAC website, the average wait time for approval is something like 117 days, but it can be a lot less and varies by the part of the country you are in. )

The Government doesn't want that lawsuit. But the ACLU still intends to challenge the license requirement, as applied to those providing pro bono legal services.

Today, the ACLU and CCR say:

ďThe license issued by OFAC today will allow us to pursue our litigation relating to the governmentís asserted authority to engage in targeted killings of American civilians without due process. While we appreciate OFACís quick response to our lawsuit, we continue to believe that OFACís regulations are unconstitutional because they require lawyers who are providing uncompensated legal representation to seek the governmentís permission before challenging the constitutionality of the governmentís conduct. Notably, OFAC has indicated that the license issued to us today can be revoked at any time. We will pursue our claim that OFACís attorney-licensing regulations are unconstitutional and should be invalidated.Ē


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.

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    Who knew that... (5.00 / 4) (#1)
    by Romberry on Wed Aug 04, 2010 at 07:42:55 AM EST
    ...Kafka's "The Trial" would one day turn out to effectively be based on the true story of post-terror "justice" in these United States.

    At a forum that was once a bastion of liberal conversation and an incubator for some rather famous bloggers, one of the remaining liberals posted about this issue and linked to Greenwald's entry on it. Check the first reply to her post and weep.

    I don't know how all this ends, but I suspect that it only gets worse. The actions we see in this case with al Awlaki are being undertaken by an executive branch headed up not by Darth Cheny and Dim Son but by "constitutional scholar" and putative Democrat Barack Obama. We have seen Darth Cheney's views made bipartisan consensus and while I do hold out some hope for pushback from our courts, I don't feel confident that pushback will prove to be enough or that my hope is well placed.

    We faced down an actual military empire in the form of the USSR and managed to keep our rights essentially intact. Yet we now must surrender our rights and all that we stand for because a few guys managed to carry out an attack nearly a decade ago?

    Fear is a powerful motivator. Our "leaders" are using it to destroy us. Our "leaders" are a much greater danger to us than the terrorists. I wonder if the terrorists knew that? I think maybe they did.

    While I agree generally with you, TL (5.00 / 4) (#4)
    by scribe on Wed Aug 04, 2010 at 10:18:09 AM EST
    as to the "normal" case in which an OFAC license is needed, there is a significant difference in this case which pretty much vitates your whole argument.  Indeed, it's a seductive but wrongheaded argument I'd expect out of some wingnut who will only be satisfied with a lot more bloodshed.  Insofar as the bloodthirsty can ever be satiated by just some bloodshed (they can't).

    In this case, the government is trying not to judicially convict, but rather to extrajudicially kill, an American citizen.  The subject matter of the representation is not the defense of criminal charges but, rather, to seek an injunction against murder-at-whim.  Moreover, the government's efforts to kill this citizen are the subject of an active manhunt - in the literal sense of hunting him like an animal to put his carcass on the meatpole out in front of the cabin rather than in a cage - the objective again being killing rather than capture.

    Thus instead of seeking a license to represent a potential client in custody, where he is likely to stay for all the pretrial proceedings and a day's or a week's or a month's delay in processing the license will not make any appreciable difference in either the pace of the proceedings (the judge is not likely to proceed until counsel are appointed/approved/paid, the right to counsel being "fundamental") or the ultimate outcome (again, things won't proceed without defense counsel and a defense), in this case every second's delay in issuing the license accrues to the benefit of the government achievingits objectives.  These objectives are at least twofold: killing a citizen without the bother of pre-killing judicial involvement and obviating judicial review or recompense later ("he's dead, therefore you have no standing to complain on his behalf to seek to stop us from doing it again and, besides, it's a state secret and you can't sue because of that, too.").

    I know.  That's a brutal run-on sentence and every English professor will cringe on reading it.  Let me break it down:

    The government wants this citizen dead.  Now.  Yesterday.  
    The government does not know where he is (if they did, they'd shoot a precision-guided missile at him and be done with it).
    The government needs time to hunt him down (like an animal).
    The government has decided that any impediment to hunting him down is unacceptable.
    The government has decided that a lawyer trying to stop this extra-judicial killing is unacceptable (because adversary lawyers are, by definition, an impediment).
    The government has at its disposal a tool which facilitates keeping adversary lawyers away.  It's a law that arguably requires a license, that only the government can give, before the lawyers can get involved.
    The longer the government delays issuing such a license, the more time the government gets to effect its objective of extra-judicially killing this citizen.
    Insofar as the government can withhold any decision on granting or denying a license to counsel, that preserves for the government the power to come into court and say "Oh, we were just getting to it. Please don't issue a judgment against us."  And that argment (dishonest as it is) will succeed because courts love to avoid adjudicating anything they don't absolutely have to adjudicate.

    Therefore, the government has every incentive to delay issuing a license and to delay taking any action at all on the license application.  And, the government has no incentive to issue a license.

    This is wholly different than the normal situation in which the defendant is in custody and wants to retain a (particular) lawyer to defend against normal criminal charges.  There, the government has no incentive to (excessively) delay issuing a license (at some point, the Speedy Trial Clause will kick in).  And the government has no disincentive to issuing a license because having defense counsel there will not thwart effecting its objective of convicting that defendant.  Indeed, it can't proceed to try to convict that defendant until defense counsel are on the scene.  

    All this from your Constitutional-law professor and scholar, Nobel (R) Peace Prize (TM) winning President.

    Hmmm (none / 0) (#9)
    by squeaky on Wed Aug 04, 2010 at 11:57:45 AM EST
    Seems to me that the only thing different that Obama has done, is announce that al Awlaki is on a government hit list, inviting a legal challenge.

    Isn't the problem war without borders, or even more obviously, preemptive killing aka war?

    I would argue that killing during war should be illegal.

    As long as we are allowed to wreak payback for those we think would want to kill us, I do not see how there is any difference in targeting al Awlaki and any one else we routinely kill.

    The fact that he is a US citizen seems an absurd limitation imo. That would mean it is OK to put someone on a hit list as long as they are not a US citizen. That seems equally barbaric to me.

    And doesn't the FBI and other US law enforcement have wanted lists that say dead or alive? What is the difference between that and al Awlaki's case.  

    Not to mention that US law enforcement routinely shoot, taser, and maim people who have had no due process. Quite often they kill the wrong person, and never have to fear prosecution.

    The AUMF and the notion of a War without borders are equally absurd, and should be challenged, and removed. This case rests on the fact that we are fighting a WOT, and the theater of war is the world.


    Eric Blair Is Spinning in His Grave (none / 0) (#2)
    by msaroff on Wed Aug 04, 2010 at 07:46:00 AM EST
    Because this is so freaking Orwellian.

    Franz Kafka might be spinning as well.

    Lawsuit can be filed..... (none / 0) (#3)
    by vicndabx on Wed Aug 04, 2010 at 10:13:49 AM EST
    Via Politico

    The Treasury Department indicated Tuesday it will grant two civil liberties groups a license to file a lawsuit on behalf of Anwar al-Awlaki, a militant American-born Islamic cleric who has reportedly been targeted for death by the U.S. Government.

    As predicted, they (none / 0) (#5)
    by scribe on Wed Aug 04, 2010 at 10:21:34 AM EST
    dodge the decision on the validity of the law by coming to court and saying "we were just getting to it, judge.  Please don't rule against us.  Besides, because we've decided to grant the license, the case is moot and you can devote yur time elsewhere."

    Like we haven't seen that before.


    Rather convenient, isn't it? (none / 0) (#6)
    by vicndabx on Wed Aug 04, 2010 at 10:36:20 AM EST

    So what do we do with (none / 0) (#7)
    by jimakaPPJ on Wed Aug 04, 2010 at 11:11:10 AM EST
    citizens who turn and attack the country and hide in a foreign land?

    (I'm not commenting on the "list" "license," etc. point. I have no problem with the legal points.)

    Proceed according to international law (5.00 / 3) (#8)
    by Peter G on Wed Aug 04, 2010 at 11:33:24 AM EST
    If there is, in fact and in law, a war going on, then such a person, regardless of citizenship, is an enemy combatant and may be treated as such.  If there is not a war, then the person should be charged with a crime and brought to the U.S. for trial.  If the "host" country will not honor the international arrest warrant and extradite the person, and s/he does not travel to or through a country that will, then -- if the situation is sufficiently dire -- extrajudicial means to bring the person within the jurisdiction of the U.S. court may be used.

    Like the goverment did with Jose Padilla (none / 0) (#10)
    by republicratitarian on Wed Aug 04, 2010 at 12:21:27 PM EST
    A U.S. citizen labeled an enemy combatant. Although extradition wasn't an issue in his case.

    "extrajudicial means" (none / 0) (#14)
    by diogenes on Thu Aug 05, 2010 at 09:08:10 PM EST
    You mean do an Israeli-style commando raid into Yemen or a similar country?  Of course, people resisting such raids often get killed, so aren't we in the same place anyway?

    "I don't know how all this ends..." (none / 0) (#11)
    by mcl on Thu Aug 05, 2010 at 06:31:31 AM EST
    I do. It ends with the President appointing a horse as senator, as Caligula did in ancient Rome.

    The constitution died today. With the announcement that a license is now required merely in order for a lawyer to represent a U.S. citizen in order to prevent him from being murdered by the government of the United States without trial and without charges, there is nothing left of the rule of law.

    From now on, it's Caligula's Rome. Any government official can have anyone murdered or tortured at whim. No charges, no trial. Just rule by terror.

    We'll have good emperors and bad emperors. In the near future one president will doubtless marry his sister and then murder her (the Sunday talk show pundits will disagree about the propriety of this), another president will order the public torture of innocent victims for idle amusement (the news shows will carry enthusiastic live feeds). One president may decide to turn the house of representatives into a whorehouse and force the congressmen and their wives to service all comers under pain of death: other presidents may moderate the corruption and extend the boundaries of the empire. But in the end, it's all window dressing, because the rule of law has gone. From now on, we live in a lawless tyranny run by torture and assassination, and anyone who dissents can be disappeared into a cell without a number in a secret prison.

    The Star Chamber in old Britain did not end well. Cromwell put paid to those abuses with a military coup. The current national security torture-eternal-war state will not end well either. The best we can hope for at this point is that the disappeared American citizens who get kidnapped and tortured into bogus confessions aren't killed by loading 'em on cargo planes and dumping 'em into the ocean, the way the victims were mass-murdered during Argentina's "Dirty War."

    The lawsuit challenges the government's claim (none / 0) (#12)
    by Peter G on Thu Aug 05, 2010 at 10:44:34 AM EST
    that a license is required.  Issuance of the license, just after the suit was filed, is obviously a legal tactic designed to keep the ACLU's argument from being ruled upon by a judge, by making it "moot."  In other words, if a license has been issued, then the ACLU lawyers can file their suit on behalf of al Awlaki whether or not a license is required; hence, that problem is moot.  This is a legal tactic used repeatedly by the Bush Justice Dept. to thwart judicial review of aspects of its extra-legal anti-terrorism program.  (It is also commonly used by Justice Dept. lawyers to "moot" out prisoners' lawsuits against illegal prison conditions and practices, by granting the plaintiff, at the last moment, approximately what s/he had sued over being deprived of.  Thus, no precedent is set.)  Makes me sad, though no longer surprised, to see the Obama admin doing the same.

    And the over-archingly massive (none / 0) (#13)
    by jondee on Thu Aug 05, 2010 at 10:58:43 AM EST
    military industrial establishment/corporate-Wall St goon squad we've allowed to metastasize for decades, will probably prevent the kind of correctives from ever occurring that Argentina is attempting to implement.

    As a few others have already pointed out, this perversity is, ultimately, the result of the ongoing, entrenched militarization of our "foreign policy".