The Treasury Department’s Office of Foreign Assets Control (“OFAC”) is responsible for implementing the government’s activities with regard to freezing foreign assets belonging to certain designated individuals. While these measures are an important part of a variety of U.S. sanctions regimes, they create large potential for abuse. In particular, OFAC claims the power to prevent any designated person – including U.S. citizens – from retaining a lawyer without first obtaining a license from the government. The ACLU believes that OFAC does not have the authority to prevent individuals from retaining and being representing by a lawyer, especially when that lawyer is not being compensated (and therefore is not being paid out of “frozen” assets). ACLU v. Geithner is a constitutional challenge to these rules.
This challenge arises in a unique and very important context. In July 2010, the ACLU had planned to bring a lawsuit challenging the government’s startling claim that it had the power to target and kill U.S. citizens suspected of terrorist crime away from war zones. This targeted killing program is being operated in secret: the public does not know what criteria are used to decide someone should be killed, nor has the government revealed what internal safeguards exist on the program. The ACLU sought to challenge the program in the only way possible under our legal system: on behalf of a citizen who is on the targeted killing list. While at least 3 Americans are on the list, the only one whose identity is known is Anwar al-Aulaqi. The ACLU and co-counsel Center for Constitutional Rights were retained by Aulaqi’s father, Nasser al-Aulaqi, in order to bring the constitutional challenge to the targeted killing program.
On July 16, 2010, many months after the government had made clear its intention to kill Anwar al-Aulaqi, OFAC undertook to freeze his assets. OFAC’s rules did not just freeze Aulaqi’s assets; they made it illegal for any attorney to provide “legal services” on his behalf without first obtaining a license. In other words, the same government that is seeking to kill a U.S. citizen has taken steps that prohibit attorneys from testing the legality of the government’s decision to kill him. The ACLU could not proceed with its planned legal challenge to the targeted killing program until it obtained a license from OFAC. OFAC did not respond to the ACLU’s request for a license.
Together with our partners at CCR, the ACLU has filed this lawsuit in order to be able to bring the targeted killing challenge but also, more broadly, in order to challenge OFAC’s unconstitutional restrictions on the right to counsel. We believe that OFAC should not be in the business of telling individuals who can represent them, or telling the ACLU whom it can represent, and OFAC certainly should not have completely unbridled discretion to make these kinds of decisions.