Yesterday Josh Gerstein reported Treasury's claims that the ACLU and the CCR don't need a license to represent American-born extremist cleric Anwar al-Awlaki in a lawsuit challenging the government's authority to kill him without a trial. The ACLU and CCR are also challenging Treasury's licensing requirement as unconstitutional.
Treasury said they would grant the license anyway, but Nick Baumann reports that hasn't actually happened:
I just exchanged emails with two ACLU spokespeople, Laurie Beacham and Rachel Myers. The organization has still not received a license to represent al-Awlaki (who could be killed by a drone strike at any point)—just a "form letter saying they received our application," Beacham says—"nothing responding to it." Myers' response was similar. "I don't think Josh saw our statement before he wrote," she says. "We stand by it."
Kenneth Anderson, who has argued in favor of the idea that the government has the authority to kill al-Awlaki without trial, also said today that he thought the licensing requirement was constitutional. But if you ask me, the confusion over this whole issue just highlights the larger problem of requiring Americans to ask the government for permission before they can file a lawsuit on someone else's behalf -- although the Treasury Department has disputed that characterization of the licensing requirement, saying that they have "long had in place a general license that broadly authorizes the provision of pro bono legal services to or on behalf of designated persons such as Anwar al Awlaki.”
That sort of nebulously suggests that the license would be required only if Awlaki were paying ACLU and CCR for their services, but as Gerstein notes, the statement "did not appear to dispute the ACLU's claim that it needs a license for the case on behalf of al-Awlaki, who now lives in Yemen."
UPDATE: The New York Times' Charlie Savage writes that "OFAC's "general license" for legal services very clearly doesn't cover what ACLU/CCR want to do." The law states that "The provision of the following legal services to or on behalf of persons whose property or interests in property are blocked pursuant to §594.201(a) is authorized, provided that all receipts of payment of professional fees and reimbursement of incurred expenses must be specifically licensed." That includes "Representation of persons before any federal or state agency with respect to the imposition, administration, or enforcement of U.S. sanctions against such persons." Awlaki was added to that list on July 16.
UPDATE II: And the license is granted. The statement from the ACLU and CCR, indicating that the challenge to the licensing requirement will continue:
“The license issued by OFAC today will allow us to pursue our litigation relating to the government's asserted authority to engage in targeted killings of American civilians without due process. While we appreciate OFAC's quick response to our lawsuit, we continue to believe that 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.”
