ACLU executive director admits that government action which prevented them from representing accused terrorist al-Awlaqi ‘did raise our eyebrows’

The American Civil Liberties Union and the Center for Constitutional Rights announced on Tuesday that they have filed a lawsuit against the United States government in connection with its practice of “targeted killings” of suspected terrorists. There’s a twist to this particular case, however.

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The two groups have been prevented from challenging the government’s actions directly by a law which makes it a crime to provide any services to a “specially designated global terrorist” — including legal representation — without obtaining permission in advance from the Treasury Department’s Office of Foreign Assets Control.

Although the ACLU and CCR filed for the necessary license eleven days ago, they have received no response. Tuesday’s lawsuit both challenges the failure of the Treasury Department to grant the license and asks for the regulation as a whole to be declared unconstitutional.

As explained by Salon’s Glenn Greenwald, “The suit argues that Treasury has no statutory authority under the law it invokes — The International Emergency Economic Powers Act — to bar American lawyers from representing American citizens on an uncompensated basis. It further argues what ought to be a completely uncontroversial point: that even if Congress had vested Treasury with this authority, it is blatantly unconstitutional to deny American citizens the right to have a lawyer, and to deny American lawyers the right to represent clients, without first obtaining a permission slip from Executive Branch officials.”

The case in question is that of Anwar al-Awlaqi, a US citizen living in Yemen, who has been delivering incendiary sermons describing the United States as “a nation of evil” and calling for “jihad against America.” Al-Awlaqi’s words and appeals have been linked to the Fort Hood shooter, the attempted Christmas airline bombing, and the attempted Times Square bombing.

Last winter, President Obama approved a strike against a compound in Yemen where al-Awlaqi was thought to be meeting with al-Qaeda leaders, and it was later revealed that his name was on a list of suspected terrorists who had been targeted for assassination.

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In early July, the ACLU and CCR were retained by al-Awlaqi’s father on a pro bono basis to bring a lawsuit “challenging the government’s asserted authority to use lethal force against U.S. citizens located far from any battlefield without charge, trial, or judicial process of any kind.”

During a conference call on Tuesday, the representatives of the two organizations explained that they had been eager for an opportunity of that kind, because “you can’t jump into court unless you have a client.” On July 16, however, al-Awlaqi was suddenly placed on the “designated global terrorist” list, making it a criminal offense to provide him with legal representation.

Marcy Wheeler of FireDogLake asked during the conference call whether Awlaqi might have been listed precisely because the ACLU had begun representing him, to which ACLU Executive Director Anthony Romero replied, “it did raise our eyebrows.”

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The ACLU and CCR filed a request for a license on July 23, describing the matter as urgent since al-Awlaqi could be killed at any time, but the Treasury Department has yet to respond. That is the basis for Tuesday’s lawsuit.

“This case will not decide whether the US can legally assassinate US citizens or anybody else,” CCR Legal Director Bill Quigley explains. “This case is about whether the government can deny pro bono lawyers to US citizens who the government accuses of being terrorists. Once we win the right to be lawyers for his father, we will challenge the constitutionality of the US efforts to kill him.

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Greenwald acknowledges that the government might successfully defend itself against any legal challenge to the assassination program — either by invoking “state secrets” or on the grounds that al-Awlaqi lacks standing to sue because there is no official confirmation that he is actually on the kill list — but he sees this secondary suit over the license requirement as a very different matter.

“It’s rather amazing that the Federal Government asserts the right to require U.S. citizens and American lawyers to obtain government permission before entering into an attorney-client relationship,” Greenwald comments. “It’s difficult to imagine a more blatantly unconstitutional power than that. What kind of an American would think the Government has the power to decide whether citizens may or may not be represented by lawyers? … That’s the power the Obama administration is asserting and, in this case, actively wielding.”