Treasury Department Office of Foreign Assets Control (OFAC) [official website] Director Adam Szubin [official profile] said Tuesday that his office would be willing to issue a license to the American Civil Liberties Union (ACLU) [advocacy website] allowing them to provide legal services to Anwar al-Awlaki [NYT profile]. Al-Awlaki is a US citizen who is suspected of being a member of al Qaeda [GlobalSecurity backgrounder] in Yemen and was labeled a Specially Designated Global Terrorist (SDGT) last month. A SDGT designation is issued by the OFAC under federal law [50 USC § 1701 et seq. text], freezing the assets of the individual and preventing the provision of legal services without a license from the government. Szubin went on to note that it is the policy of the OFAC to facilitate the provision of pro bono legal services [Politico report] to those sanctioned by the body. The ACLU and the Center for Constitutional Rights (CCR) [advocacy website] filed a lawsuit [JURIST report] challenging the constitutionality of the licensing scheme after the OFAC failed to respond to the organizations' request for a license in al-Awlaki's case. Following Szubin's statement, the ACLU and the CCR again called on the OFAC to issue a license [press release], stating:
OFAC has neither issued a license nor stated that we don't need one. It suggests that it might eventually grant us a license for our work, but our application has already gone unanswered for eleven days. OFAC is well aware that the case relates to the government's decision to add a U.S. citizen to its ‘targeted killing' list. To say that the matter is urgent is a dramatic understatement. Instead of issuing press releases, OFAC should simply issue us a license.The lawsuit was filed in the US District Court for the District of Columbia [official website] seeking either a declaration that the policy is unconstitutional, or an order forcing the Treasury Department to issue a license to represent al-Awlaki.
The rights groups were retained by al-Awlaki's father in June to provide pro bono legal assistance in challenging the decision of the Obama administration to approve al-Awlaki for targeted killing in January. The groups allege that the legal assistance ban issued by the Treasury Department exceeds its statutory authority and violates the First and Fifth amendments [Cornell LII backgrounders] to the US Constitution [text]. The groups argue that it violates their First Amendment rights because it interferes with their "right to represent clients in litigation consistent with their organizational missions," and violates the Fifth Amendment because it prevents US citizens from "obtaining legal representation of their interests in US courts." The ACLU described the licensing policy [press release] as an "alarming denial of rights in any one case endangers the rights of all Americans. Attorneys shouldn't have to ask the government for permission in order to challenge the constitutionality of the government's conduct."