Morton Sklar, Co-Counsel for PJAK and Legal Consultant to “The Good Wife” TV Series

“The Good Wife” television series aired an episode entitled “Executive Order 13224” on Sunday, Nov. 6, 2011 that provided a very sympathetic treatment of the problems created by the U.S. government’s  harsh restrictions and controls on lawyers representing groups and individuals designated to the Department of Treasury’s terrorist list under EO 13224.  These procedures are a means of discouraging lawyers from representing those who have been put on the terrorist list, making defense of their claims in court more difficult, if not impossible.

Most lawyers working on these cases are very familiar with the types of restrictions that have been imposed.  But the general public is less familiar with the situation, and hopefully The Good Wife episode will help change that.
One comprehensive administrative challenge to the restrictions on lawyers has been filed, in the case of the Free Life Party of Kurdistan (PJAK), where co-counsel applied for the required license but posed major and detailed objections to the process — objections that were renewed and set out in detail in each of the quarterly reports that the lawyers subsequently submitted to comply with Treasury’s regulations.  In the PJAK case, the Treasury Department, following the model that the TV show “The Good Wife” correctly took to task, even submitted to PJAK’s lawyers a list of very probing and what amounted to “self-incriminating” questions about the details of their clients operations and administrative structures.  Life followed fiction in that the government was trying to turn PJAK’s lawyers into government agents, seeking information from them that presumably could help to establish the “guilt” of their clients, and proof of the allegedly unlawful activities.
Initially, the Treasury Department’s rules under the Executive Order made the act of providing legal representation unlawful on its face, by including legal assistance under the definition of prohibited “material support,” and therefore subject to criminal and civil penalties.  This part of the regulations was changed as a result of a court challenge, but the effect of the new rules is equally harsh and restrictive. The new administrative requirements include:
  1. obtaining a special license from the same federal agency the legality of whose actions you were challenging to represent designated groups and individuals;
  2. making all communications with your client subject to review by the government;
  3. filing quarterly reports on case activities and receipt of legal fees;
  4. limiting the amounts of legal fees that could be accepted to amounts that did not come close to covering the time and expenses required to properly handle an administrative or court challenge against the government;  and
  5. limiting the number of attorneys permitted to work on the case to two — a far cry from the number of lawyers working on the government’s side.
The result of these restrictions, pure and simple, was that lawyers (especially larger law firms) are discouraged from handling these cases, and that groups and individuals that had been designated do not have proper legal representation if they wish to challenge the designations against them.
These types of restrictions on lawyers and on their ability to mount a proper legal defense are unprecedented in American jurisprudence.  Although there are restraints on paying for legal representation in criminal cases involving the proceeds of drug deals and special requirements for lawyers representing Guantanamo Bay detainees, the government has never before sought to impose as wide range of restrictions on lawyers as has been done in the designation cases.  The Treasury restrictions directly and materially limit the affected lawyers’ ability to provide adequate and effective representation to their clients, and impose the type of intimidation that is taking place against legal representatives of those designated.   In essence, the government has imposed a scheme, through administrative fiat that far exceeds anything that is authorized by statute, that makes it difficult if not impossible to challenge their actions in making terrorism designations, and insulates illegal and unconstitutional actions taken in the course of the designations from judicial review.   In “The Good Wife” episode the fictional Lockhart Gardner lawyer sarcastically responded to the inquiries of the Treasury Department “monitor” under the EO 13224 provisions by noting:  “You are trying to make us your investigators in this case.  We are supposed to be working for our clients not the US government.”
Only one legal challenge to these practices has taken place to date, and that was very limited in scope.  The Center for Constitutional Rights and the American Civil Liberties Union sought a court order requiring Treasury to issue them a license to represent the father of Anwar al-Aulaqi, who was targeted for assassination by the U.S. government and at the same time was put on Treasury’s terrorist list.  But the only aspect of the underlying licensing scheme that was challenged was the policy to require licenses even if the attorneys involved were not compensated.  The Treasury easily avoided this challenge and mooted out the case by immediately issuing the license, and changed their regulations, described above, to end the practice of requiring a license in uncompensated situations.   In several other cases the adequacy of the authorized legal fees was challenged, but again not the underlying legality and constitutionality of using of these types of restrictions to deny due process or to improperly intrude on the contractual and professional rights and responsibilities of the lawyers affected by the rules.
What is needed is a more comprehensive court challenge to these restrictions, based on Constitutional (free speech and association) claims, as well as contractual and professional responsibility claims, on the part of the affected attorneys directly, and on behalf of the affected clients whose due process (adequate legal representation) rights have been denied.   Lawyers and law firms interested in providing support for this type of effort are encouraged to respond to this blog or otherwise contact the author and the Charity and Security Network.
Morton Sklar
Co-Counsel for PJAK and Legal Consultant to “The Good Wife” TV Series
Contact at:    (301) 946-4649