August 3, 2010
Groups Sue to Represent Government-Designated Terrorist
The Center for Constitutional Rights and the ACLU filed suit today against the federal government to be able to provide uncompensated legal representation to Nassar al-Aulaqi, a U.S. citizen labeled a "Specially Designated Global Terrorist" (SDGT) and listed on the government's roll of suspected terrorists approved for targeted killing. CCR's case page (with litigation docs) is here; the memo in support of the motion for a TRO and preliminary injunction is here. We posted on the constitutionality of al-Aulaqi's targeted killing here.
At issue in the case is not (yet) the legality of targeted killing. Instead, the CCR and ACLU simply seek to provide uncompensated legal representation to al-Aulaqi--to later argue that his targeted killing violates the Constitution and U.S. law.
Treasury Department regulations act as a barrier to representation. Those regulations require Department approval before attorneys can represent SDGTs. The Office of Foreign Assets Control (OFAC) enacted the regulations to implement President Bush's Executive Order 13,224, declaring an emergency in the wake of the 9/11 attacks and blocking property of persons designated as SDGTs. The regulations not only block SDGTs' property; they also require OFAC to license legal representatives of SDGTs:
The provision of the following legal services to or on behalf of [SDGTs] is authorized, provided that all receipts of payment of professional fees and reimbursement of incurred expenses must be specifically licensed [and for authorized purposes].
The CCR and ACLU argue that the regulations exceed OFAC's statutory authority, violate the First Amendment, and violate separation-of-powers principles.
OFAC's statutory authority comes from the International Emergency Economic Powers Act (IEEPA), which grants the President certain authority that "may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared." 50 U.S.C. Sec. 1701(b). (President Bush issued EO 13,224 under the IEEPA, among other authorities.) The Act includes authority to
investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.
50 U.S.C. Sec. 1702(a)(1)(B). The CCR and ACLU argue that the IEEPA is directed at regulating certain international economic transactions, not the kind of uncompensated legal representation regulated by the OFAC licensing scheme and that they seek to provide in this case. Thus OFAC's licensing scheme "ultra vires" and beyond the Office's authority.
As to the First Amendment, the CCR and ACLU argue that OFAC's licensing scheme restricts their right as advocacy organizations to solicit and represent clients, NAACP v. Button, In re Primus, and operates as a prior restraint on speech.
Finally, they raise a separation-of-powers concern:
Because a lawsuit cannot be filed for the benefit of Mr. Aulaqi without an OFAC license, OFAC's regulations have the effect of giving the executive branch effective veto power over a citizen's right to go to court to challenge executive branch conduct. The notion that the government can compel a citizen to seek its permission before challenging the constitutionality of its actions in court is wholly foreign to our constitutional system. The Supreme Court has consistently reiterated a "well-settled presumption favoring interpretation of statutes that allow judicial review of administrative action." . . . In this case, OFAC's restrictions are particularly severe: they prevent designated individuals, including Mr. Aulaqi, from vindicating their rights in court without the express permission of the U.S. government.
Memo at 16 (citation omitted).
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