US Treasury sued to allow Anwar al-Awlaki lawsuit

The American Civil Liberties Union and the Center on Constitutional rights continue their lawsuit against Treasury Secretary Timothy Geithner  and the Treasury Department Office of Foreign Asset Control over their having blocked the ACLU’s attempt to challenge the government’s authority to engage in the targeted killing of American citizens suspected of terrorism. The lawsuit is being brought on behalf of Nasser al-Awlaki, the father of Anwar al-Awlaki, the extremist cleric who has been linked to al-Qaeda in the Arabian Peninsula and several terror plots targeting the United States. Nasser al-Awlaki maintains that his son is innocent.

The center and the ACLU said Aulaqi’s father contacted them shortly before Treasury named Aulaqi a “specially designated global terrorist” on July 16, freezing his assets and barring U.S. entities – including lawyers – from doing business with or providing services to him without obtaining a license from OFAC.

OFAC Director Adam Szubin said that his office would be willing to issue a license to the rights groups, noting that it is the policy of the OFAC to facilitate the provision of pro bono legal services to those sanctioned by the body.

In announcing the continuance of the lawsuit despite the license, the rights groups expressed appreciation for OFAC’s prompt response, but explained:

OFAC’s regulations are unconstitutional because they require lawyers who are providing uncompensated legal representation to seek the government’s permission before challenging the constitutionality of the government’s conduct. Notably, OFAC has indicated that the license issued to us today can be revoked at any time. We will pursue our claim that OFAC’s attorney-licensing regulations are unconstitutional and should be invalidated.

The ACLU points out that there’s something strange about the OFAC delaying granting a license to defend someone whom the government claims is such an imminent threat they should be killed at first opportunity.

“We don’t think the we should have to ask the government’s permission before suing it for violations of constitutional rights,” said Vince Warren, executive director of the CCR.

The larger issue is less one of Anwar al-Awlaki’s guilt and innocence but rather the scope of the government’s authority to target U.S. citizens for killing without due process. The ACLU and the CCR want to challenge that authority, but they can’t even do that without the OFAC’s permission.

“The same government that is seeking to kill Anwar al-Awlaki has prohibited attorneys from contesting the legality of the government’s decision to use lethal force against him,” says the complaint.

Should the lawyers overcome that hurdle, they would be in a position to seek court resolution of some of the most central legal disputes in the war against Al Qaeda — including whether the whole world is a battlefield subject to combat rules, or whether Qaeda suspects far from the armed conflicts in Afghanistan and Iraq must, in the absence of an imminent threat, be treated as criminals entitled to trials.

The lawsuit can have potential far-reaching consequences, especially as targeted killings is the new U.S focus in Afghanistan the NY Times reports.

American intelligence reporting has recently revealed growing examples of Taliban fighters who are fearful of moving into higher-level command positions because of these lethal operations, according to a senior American military officer who follows Afghanistan closely.

The administration’s shift in thinking is gradual but has been perceptible in the public remarks of various officials. The incoming commander of the military’s Central Command, Gen. James N. Mattis, was asked last week by Senator Jack Reed, Democrat of Rhode Island, whether the administration’s July 2011 date for starting to withdraw American troops implied a shift in emphasis from counterinsurgency to a strategy concentrating on killing terrorists.

“I think that is the approach, Senator,” he replied.

The emerging American model can best be described as “counterterrorism, with some counterinsurgency strategy that forces the hands of insurgent leaders,” said a diplomat with knowledge of the planning. It melds elements of both strategies in a policy that continues to evolve, as conditions change.

More info here and here.


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