On Aug. 3, 2010, the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) filed a lawsuit challenging the regulatory scheme requiring attorneys to obtain permission from the Office of Asset Control (OFAC) to represent their clients. The plaintiffs seek to represent pro bono the father of a US citizen targeted for killing by the U.S. government.

The lawsuit exposes the unduly burdensome and potentially unconstitutional licensing process imposed upon attorneys seeking to represent individuals and organizations ensnared in the terrorist designation process. Of equal significance is the underlying basis of this lawsuit – is it constitutional for the executive branch to unilaterally target for killing a U.S. citizen without due process of law?

Executive Order 13224 issued pursuant to the International Emergency Economic Powers Act (IEEPA) grants OFAC the authority to designate individuals and entities as Specially Designated Global Terrorists (SDGT). Such a designation makes any transaction with or support of the SDGT illegal, including legal representation in a lawsuit challenging the validity of the designation or consequent sanctions imposed. As a result, a designated entity’s attorneys must request and obtain permission from the same party against whom the designation is challenged. Hence OFAC serves as the prosecutor, judge, and jury in the designation process and any consequent legal challenge.
U.S. citizen Anwar al-Aulaqi was designated as an SDGT on July 16, 2010. He is also on a list of suspected terrorists approved for “targeted killing” by the U.S. military and the CIA. Mr. al-Aulaqi’s father sought assistance from the ACLU and CCR to challenge the constitutionality of the U.S. government’s ongoing targeted killing of his son. In order to engage in any transactions with a U.S. person designated as a SDGT, the ACLU and CCR are required by law to apply for a license to provide the legal representation requested by Mr. al-Aulaqi’s father.
In accordance with OFAC’s burdensome procedures, the ACLU and CCR applied for a license to represent Mr. al-Aulaqi’s father. After waiting ten days for a response to their request, ACLU and CCR filed suit to enjoin the U.S. Treasury from penalizing them for representing their client without a license from OFAC. Because of the U.S. government’s past and ongoing attempts their client’s son, the licensing request was urgent.
The ACLU and CCR challenged the constitutionality of the licensing process on First and Fifth Amendment grounds and alleged that such requirements violated the separation of powers doctrine. Specifically, they made the following claims:
  • The SDGT regulations are arbitrary and capricious insofar as they prohibits attorneys from providing uncompensated legal services without first obtaining a license from OFAC;

  • The SDGT regulations violate the First and Fifth Amendments insofar as they prevent SDGTs who are US persons from obtaining legal representation of their interests in U.S. Courts;

  • The SDGT regulations violate the First Amendment insofar as they impose a licensing requirement on non-profit civil liberties organizations seeking to represent clients in litigation;

  • The SDGT regulations violate the First Amendment insofar as they invest executive officers with unfettered discretion to suppress activity protected by the First Amendment and fail to provide constitutionally required safeguards;

  • The SDGT regulations violate Article III of the U.S. Constitution and the separation of powers insofar as they invest executive officers with unfettered discretion to determine whether designated U.S. citizens can have access to federal courts in order bring particular litigation.