A major legal challenge to one of the Obama administration's most radical assertions of executive power began this morning in a federal courthouse in Washington, DC. Early last month, the ACLU and the Center for Constitutional Rights were retained by Nasser al-Awlaki, the father of Obama assassination target (and U.S. citizen) Anwar al-Awlaki, to seek a federal court order restraining the Obama administration from killing his son without due process of law. But then, a significant and extraordinary problem arose: regulations promulgated several years ago by the Treasury Department prohibit U.S. persons from engaging in any transactions with individuals labeled by the Government as a "Specially Designated Global Terrorist," and those regulations specifically bar lawyers from providing legal services to such individuals without a special "license" from the Treasury Department specifically allowing such representation.
On July 16 -- roughly two weeks after Awlaki's father retained the ACLU and CCR to file suit -- the Treasury Department slapped that label on Awlaki. That action would have made it a criminal offense for those organizations to file suit on behalf of Awlaki or otherwise provide legal representation to him without express permission from the U.S. Government. On July 23, the two groups submitted a request for such a license with the Treasury Department, and when doing so, conveyed the extreme time-urgency involved: namely, that there is an ongoing governmental effort to kill Awlaki and any delay in granting this "license" could cause him to be killed without these claims being heard by a court. Despite that, the Treasury Department failed even to respond to the request.
Left with no choice, the ACLU and CCR this morning filed a lawsuit on their own behalf against Timothy 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 (the Complaint is here). As the ACLU/CCR Brief puts it: "The notion that the government can compel a citizen to seek its permission before challenging the constitutionality of its actions in court is wholly foreign to our constitutional system" and "[a]s non-profit organizations dedicated to protecting civil liberties and human rights, Plaintiffs have a First Amendment right to represent clients in litigation consistent with their organizational missions." The Brief also argues that it is a violation of Separation of Powers to allow the Executive Branch to determine in its sole discretion who can and cannot appear in and have access to a federal court.