– 2010-08-07 00:56:33
CCR and the ACLU v. OFAC and Targeted Killings
Today CCR along with the ACLU filed a joint lawsuit to challenge the legality and constitutionality of a licensing scheme that requires lawyers to seek government permission to represent individuals that same government intends to kill.
The US government has claimed the power to target and kill US citizens and other individuals anywhere in the world, outside of any battlefield-without charge, trial, or a judicial process of any kind.
The fact that the executive can act as judge, jury, and executioner presents an extremely dangerous expansion of power that undermines our laws, collective liberty, and safety. The executive branch is substituting a secret bureaucratic process for the due process required by the US Constitution and international law.
It is carrying out killings that can target innocent people, given the long and well-documented history of the US government wrongly accusing both citizens and foreigners of terrorism and being a threat to national security. The government’s claimed authority to target individuals far from any battlefield is also distorting international law and effectively creating a war without boundaries or end.
Not only is the government trying to kill US citizens without due process, it is also trying to stop lawyers from representing them to challenge the government’s actions.
In early July, CCR and the ACLU were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government’s decision to authorize the killing of his son, US citizen Anwar al-Aulaqi, whom the government is actively targeting in Yemen, where he is currently in hiding.
Shortly after, the Secretary of the Treasury labeled Anwar Al-Aulaqi a “specially designated global terrorist,” making it a crime for lawyers to provide representation for his benefit without first seeking a license from the government.
Our two organizations applied for a license, but have not been granted one so far, despite the urgency of the representation we seek to provide. Our suit today charges that the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury has exceeded its authority by subjecting pro bono legal services to a licensing requirement, and that OFAC’s regulations violate the First Amendment, the Fifth Amendment, and the principle of separation of powers. We are asking the court to invalidate the regulations and to make clear that lawyers can provide representation for the benefit of designated individuals without first seeking the government’s consent.
It is our strong belief that regardless of the government’s allegations against Al-Aulaqi or any US citizen suspected of wrongdoing, authorizing the death of individuals on secret allegations alone, outside of any legal process, and then denying such individuals legal representation to challenge that very conduct, not only violates the Constitution and our laws, but seriously undermines our collective safety.
If the government suspects Al-Aulaqi of criminal activity, it should charge him, arrest him, and try him in a court of law. The executive branch cannot claim the extraordinary power to unilaterally deem people terrorists and authorize their killing, off the battlefield in countries around the world, without any fair process or oversight.
We will keep you updated on this important case. To learn more, visit our case page and read an article by our Legal Director Bill Quigley about the case.
Vincent Warren is the Executive Director of the Center for Constitutional Rights.
CCR and the ACLU v. OFAC and Targeted Killings
Bill Quigley, CCR Legal Director
On August 3, 2010, the Center for Constitutional Rights and the American Civil Liberties Union filed a lawsuit against the U.S. Treasury Department and the Office of Foreign Assets Control (OFAC) to challenge the legality and constitutionality of the licensing scheme that requires them to obtain a license in order to file a lawsuit concerning the government’s asserted authority to carry out targeted killings of individuals, including U.S. citizens, far from any battlefield.
CCR and the ACLU filed suit against the Department of Treasury and OFAC on August 3, 2010. The case is pending in the US District Court for the District of Columbia.
In early July 2010, CCR and the ACLU were retained by Nasser al-Aulaqi, the father of U.S. citizen Anwar Al-Aulaqi, to bring a lawsuit in connection with the governmentâ€™s decision to authorize the death of his son, who was placed on kill lists maintained by the CIA and the US military’s Joint Special Operations Command (JSOC) earlier this year.
On July 16, 2010, however, the Secretary of the Treasury labeled Anwar al-Aulaqi a “specially designated global terrorist,” which makes it a crime for lawyers to provide representation for his benefit without first seeking a license from OFAC. CCR and the ACLU sought a license, but after the government’s failure to grant one despite the urgency created by an outstanding authorization for Al-Aulaqi’s death, CCR and ACLU brought suit challenging the legality and constitutionality of the licensing scheme as applied to the representation they seek to provide. CCR and the ACLU have not had contact with Anwar Al-Aulaqi.
The OFAC requirements generally make it illegal to provide any service, including legal representation, to or for the benefit of a designated individual. A lawyer who provides legal representation for the benefit of a designated person without getting special permission is subject to criminal and civil penalties.
In their lawsuit, CCR and the ACLU charge that OFAC has exceeded its authority by subjecting uncompensated legal services to a licensing requirement, and that OFAC’s regulations violate the First Amendment, the Fifth Amendment, and the principle of separation of powers.
The lawsuit asks the court to invalidate the regulations and to make clear that lawyers can provide representation for the benefit of designated individuals without first seeking the governmentâ€™s consent.
The underlying representation that CCR and the ACLU seek to provide Nasser Al-Aulaqi would challenge the government’s decision authorizing the CIA and JSOC to target and kill his son, who is currently hiding in Yemen, without charge, trial or any form of due process.
While the government can legitimately use lethal force against civilians in certain circumstances outside of a judicial process, the authority contemplated by senior Obama administration officials is far broader than what the Constitution and international law allow. Under international human rights law, lethal force may be used in peacetime only when there is an imminent threat of deadly attack and when lethal force is a last resort.
A program in which names are added to a list though a secret bureaucratic process and remain there for months at a time does not appear to be limited to imminent threats, and it is not at all clear that the US government had exhausted other options before ordering Al-Aulaqiâ€™s execution.
Moreover, targeting individuals for killing who are suspected of crimes but have not been convicted — without oversight, due process or disclosed standards for being placed on the kill list — also poses the risk that the government will erroneously target the wrong people. Since 9/11, the US government has detained thousands men as terrorists, only for courts or the government itself to discover later that the evidence was wrong or unreliable and release them.
For additional information see:
CCR Press Release
Rights Groups File Lawsuit To Allow Challenge To Targeted Killing Without Due Process
CCR Legal Director Bill Quigley
Why We Sued to Represent Muslim Cleric Aulaqi
On July 23, 2010, CCR and the ACLU submitted an urgent request to OFAC for a license authorizing them to continue to provide pro bono legal services to Nasser Al-Aulaqi as representative of the interests of Anwar Al-Aulaqi.
On August 3, 2010, CCR and the ACLU filed suit against the Department of Treasury and OFAC challenging the legality and constitutionality of the licensing scheme requiring them to obtain a license to continue their representation of Nasser Al-Aulaqi as representative of the interests of Anwar Al-Aulaqi.
On August 4, 2010, OFAC granted CCR and the ACLU a license to represent Nasser Al-Aulaqi.