(2010-08-05) Awlaki Lawyer Suit

The ACLU and CCR this morning filed a lawsuit on their own behalf against Tim Geithner and the Treasury Department. The suit argues that Treasury has no statutory authority under the law it invokes -- The International Emergency Economic Powers Act -- to bar American lawyers from representing American citizens on an uncompensated basis. It further argues what ought to be a completely uncontroversial point: that even if Congress had vested Treasury with this authority, it is blatantly unconstitutional to deny American citizens the right to have a lawyer, and to deny American lawyers the right to represent clients, without first obtaining a permission slip from Executive Branch officials. (US Constitution, Anwar Al Awlaki)

Some background:

• Last October, the Yemeni government came to the CIA with a request: Could the agency collect intelligence that might help target the network of a U.S.-born al-Qaeda recruiter named Anwar al-Aulaqi (Awlaki)? What happened next is haunting, in light of subsequent events: The CIA concluded that it could not assist the Yemenis in locating Aulaqi for a possible capture operation. The primary reason was that the agency lacked specific evidence that he threatened the lives of Americans -- which is the threshold for any capture-or-kill operation against a U.S. citizen. The Yemenis also wanted U.S. Special Forces' help on the ground in pursuing Aulaqi; that, too, was refused.

• A U.S. official familiar with the case responds: "Aulaqi didn't go operational until November. It wasn't a case of missed intelligence, not at all. The Yemenis didn't even think he had assumed an operational role."

Update: The Treasury Department indicated Tuesday it will grant two civil liberties groups a license to file a lawsuit on behalf of Anwar al-Awlaki, a militant American-born Islamic cleric who has reportedly been targeted for death by the U.S. Government... As they filed their lawsuit against Treasury Tuesday, the civil liberties groups announced that al-Awlaki’s father, Nasser, had retained them to help end a series of drone strikes that appeared aimed at killing his son. Anwar al-Awlaki was added to the Treasury Department’s sanctions list on July 16. ACLU and CCR lawyers said that meant they had to apply to Treasury for a license to perform legal services on the younger al-Awlaki’s behalf; they said they made the application on July 23 but didn’t get an answer from Treasury... “President Barack Obama is claiming the power to act as judge, jury and executioner while suspending any semblance of due process,” Vince Warren, Executive Director of CCR, said in a statement Tuesday. “YemEn is nearly 2000 miles from Afghanistan or Iraq. The U.S. government is going outside the law to create an ever-larger global war zone and turn the whole world into a battlefield. Would we tolerate it if China or France secretly decided to execute their enemies inside the U.S.?”

Aug31: update from Glenn Greenwald. This notion that the Constitution extends only to America's borders is rooted in pure ignorance of the law... What I've found most disturbing about this controversy from the start is how many Americans are willing to blindly believe the Government's accusations of Terrorism against their fellow citizens -- provided they're Muslims with foreign-sounding names -- without needing to see any evidence at all. The fact that this very same Government is continuously and repeatedly wrong when it makes those accusations does not seem to be even a cause for hesitation among this faction. See 2010-07-10-GovKeepsLosingGitmoCases.

Sept15: The Obama administration is considering filing the first criminal charges against radical cleric Anwar al-Awlaki in case the CIA fails to kill him and he is captured alive in Yemen.

Sept16: The administration is discussing various arguments for dismissing the suit. The government’s increasing use of the State Secret-s doctrine to shield its actions from judicial review has been contentious. Some officials have argued that invoking it in the Awlaki matter, about which so much is already public, would risk a backlash... Heightening the lawyers’ concerns, the lawsuit is before a federal district judge, JohnDBates, who has disagreed with the Justice Department’s assertions of executive power in several detention cases.

Sept25: the government made its motion. Though note the gigantic slip here: the AUMF only declares war against those “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons” (when AQAP didn’t exist in its current form), not those who have attacked us since. This “either/or” statement only claims that AQAP is part of the same war, not that it had any role in 9/11, so it’s totally bogus in any case, even without the betrayal of their lack of confidence in both of these claims with the either/or construction... This is not a court filing. It’s a “choose your own adventure novel” for the judge.

• Glenn Greenwald notes: Article III, Section 3 of the US Constitution (the document which these same Obama supporters pretended to care about during the Bush years) provides that "No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Treason is a crime that the Constitution specifically requires be proven with due process in court, not by unilateral presidential decree.