* update to ACLU v. Geithner: OFAC is issuing the requested licenses
A listmember points out that OFAC yesterday announced it will in fact grant the requested licenses. See the story below. One interesting point mentioned in the story is that OFAC already has a “general license” permitting the provision of pro bono legal services to SDGTs, though the range of legal services encompassed by the general license arguably did not extend to this particular type of litigation (the general license instead seems to anticipate pro bono work challenging the designation itself and other designation-related government actions and also detention-related activity; the drafters of the general license language just probably didn’t foresee this particular type of lawsuit).
|Treasury to allow al-Awlaki lawsuit
By: Josh Gerstein
August 3, 2010 07:17 PM EDT
|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.
The announcement came after the American Civil Liberties Union and the Center for Constitutional Rights filed a separate federal lawsuit challenging the constitutionality of the Treasury Department’s licensing process for providing legal services to individuals and groups subject to U.S. anti-terrorism sanctions.
The head of Treasury’s sanctions office, Adam Szubin, said in a statement that Treasury’s policy “is to broadly authorize the provision of pro bono legal services” to designated persons who want to challenge the government in court. “To the extent that the particular legal services that the ACLU wishes to provide in this instance do not fall into any of the broad categories that are generally licensed, [Treasury’s Office of Foreign Assets Control] will work with the ACLU to ensure that the legal services can be delivered,” Szubin said.
The moves could set in motion the first legal challenge to the government’s policy of deadly drone strikes against American citizens and others accused of working with al Qaeda and other terrorists overseas. As they filed their lawsuit against Treasury Tuesday, the civil liberties groups announced that al-Awlaki’s father, Nasser, had retained them to help end a series of drone strikes that appeared aimed at killing his son.
Anwar al-Awlaki was added to the Treasury Department’s sanctions list on July 16. ACLU and CCR lawyers said that meant they had to apply to Treasury for a license to perform legal services on the younger al-Awlaki’s behalf; they said they made the application on July 23 but didn’t get an answer from Treasury.
In Szubin’s statement, he accused the ACLU of “significantly misleading” the public by stating that individuals or groups on the list need approval from the feds before retaining unpaid legal counsel.
“The Treasury Department has long had in place a general license that broadly authorizes the provision of pro bono legal services to or on behalf of designated persons such as Anwar al Awlaki,” Szubin wrote. “This general license allows U.S. persons to provide legal advice and services with respect to any criminal, civil, or administrative proceedings brought against the designated person, as well as any proceedings initiated on his or her behalf to challenge his or her detention or the imposition of sanctions against him or her.”
However, Szubin’s statement did not appear to dispute the ACLU’s claim that it needs a license for the case on behalf of al-Awlaki, who now lives in Yemen. A suit over the government’s order authorizing deadly force against him would not appear to involve any of the specific types of legal work Treasury has generally authorized.
In an interview with CNN in January, Nasser al-Awlaki said he wanted his son to turn himself in to authorities but had little room to negotiate.
"I will do my best to convince my son to do this (surrender), to come back but they are not giving me time, they want to kill my son,” he said. “How can the American government kill one of their own citizens? This is a legal issue that needs to be answered."
Anwar al-Awlaki, 39, who once preached at a mosque in Virginia, has become an inspirational figure for some who have carried out terrorist attacks. He corresponded via e-mail with U.S. Army Major Nidal Hasan, who is charged with killing 13 people and injuring 32 in a shooting spree at Fort Hood in Texas.
In addition, the suspect in the so-called underwear bombing attempt of a U.S. airliner on Christmas Day 2009, Umar AbdulMutallab, has reportedly told authorities al-Awlaki was involved in planning that attack.
Some legal authorities have questioned the government’s legal authority to use deadly force outside of war zones, particularly when U.S. citizens are the targets. U.S. officials have generally declined to discuss the process, but have insisted that such designations are made carefully and are the subject of rigorous legal review.
“President Obama is claiming the power to act as judge, jury and executioner while suspending any semblance of due process,” Vince Warren, Executive Director of CCR, said in a statement Tuesday. “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.?”
In a separate Freedom of Information Act suit filed in March, the ACLU is seeking information on the process the government uses to put figures like al-Awlaki on the list of individuals targeted for drone strikes or similar attacks.
From: Robert Chesney [mailto:email@example.com]
Sent: Wednesday, August 04, 2010 11:31 AM
Subject: [nationalsecuritylaw] ACLU v. Geithner (D.D.C. Aug. 3, 2010)
* ACLU v. Geithner (D.D.C. Aug. 3, 2010) (seeking OFAC license to litigate on behalf of Anwar al-Awlaki in relation to his inclusion on list of targets approved for lethal strike)
Lots of news coverage of this one. The complaint, running 12 pages, is posted here. As you will see, the complaint is entirely focused on the constitutionality of the statutory and regulatory framework pursuant to which ACLU and CCR must obtain a license from the Office of Foreign Assets Control at Treasury in order to provide legal services to a person identified as a “Specially Designated Global Terrorist.” That is to say, the suit at this point isn’t about the underlying question of the legality of targeting al-Awlaki, but rather about the constitutionality of subjecting legal services to the same restrictions as other forms of service and support under the International Emergency Economic Powers Act system. This is important and interesting, of course, but the real fireworks will come later when a suit on the merits actually gets filed (something that presumably will occur once OFAC actually issues the requested license on its own initiative or else in the event that the court obliges OFAC to do so).