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Rights groups to continue suit against terror suspect defense licensing

By Dwyer Arce

[JURIST] The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) [advocacy websites] on Wednesday announced that they would pursue a legal challenge [press release] to the Specially Designated Terrorists (SDGT) licensing scheme, despite being issued a license to represent Anwar al-Awlaqi [NYT profile]. Al-Awlaqi is a US citizen who is suspected of being a member of al Qaeda [GlobalSecurity backgrounder] in Yemen and was labeled a SDGT last month. The SDGT designation is issued by the Treasury Department Office of Foreign Assets Control (OFAC) [official website] under federal law [50 USC § 1701 et seq. text], freezing the assets of the individual and preventing the provision of legal services without a license from the government. 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.

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

The ACLU and the CCR filed a lawsuit earlier this week [JURIST report] challenging the constitutionality of the licensing scheme after OFAC failed to respond to the organizations' request for a license in al-Awlaqi's case. The rights groups were retained by al-Awlaqi's father in June to provide pro bono legal assistance in challenging the decision of the Obama administration to approve al-Awlaqi for targeted killing in January. The groups allege that the legal assistance ban issued by the Treasury Department exceeds its statutory authority and violates the First and Fifth amendments [Cornell LII backgrounders] to the US Constitution [text]. The groups argue that it violates their First Amendment rights because it interferes with their "right to represent clients in litigation consistent with their organizational missions," and violates the Fifth Amendment because it prevents US citizens from "obtaining legal representation of their interests in US courts." The ACLU described the licensing policy [press release] as an "alarming denial of rights in any one case endangers the rights of all Americans. Attorneys shouldn't have to ask the government for permission in order to challenge the constitutionality of the government's conduct."

Full post as published by JURIST - The Paper Chase on August 05, 2010 (boomark / email).