Is the Government Using OFAC to Prevent Due Process?

/in , /by

The ACLU and CCR just had a conference call to talk about their suit challenging the licensing scheme the Treasury Department’s Office of Foreign Asset Control uses to prevent lawyers from representing those on OFAC’s designated terrorist list. Much of the discussion pertained to whether Anwar al-Awlaki could be legitimately considered an enemy combatant given his alleged incitement of attacks on the US.

But I was most interested in the timing. As the CCR summary notes, Awlaki’s father, Nasser al-Awlaki, first retained the ACLU and CCR in “early July” to challenge the assassination order on his son on due process grounds. Within weeks, on July 16, 2010, the government designated Anwar al-Awlaki a specially designated global terrorist. At that point, ACLU and CCR had to stop their work on suing the government and apply for a license allowing them to represent the Awlakis. As ACLU Executive Director Anthony Romero noted, listing Awlaki put lawyers in neutral, “while we were in 3rd or 4th gear a few weeks ago” as they wait for the bureaucratic process of getting a license play out.

I asked whether they thought this was intentional–that is, whether they thought the government had designated Awlaki a terrorist so as to make it harder for the ACLU and CCR to represent him. Romero admitted the timing of the listing “did raise our eyebrows.” He said the timing raises the question of “whether OFA is being used to impede lawyers’ ability to challenge” programs like the kill list. And ACLU Attorney Ben Wizner noted how long after the government put Awlaki on the kill list it was before they started to designate him a terrorist and freeze his assets.

Implicit in my question was how the government knew the ACLU and CCR were representing the Awlakis. I will work to clarify that, though Romero did say that the lawyers on the case had traveled to Yemen and started meeting with the family.

In any case, add the timing of the government’s designation of Anwar al-Awlaki as a terrorist to the list of other things that already stink about the government’s efforts to kill him with no due process.

Note: The quotes in this are my transcriptions of the call itself. Since I’m mid-move, I didn’t manage to record the call, but will check the quotes for attribution and accuracy later this PM.

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  1. alinaustex says:

    Remember when President Bush said “they hated us for our freedom ” -does not denying al Awaki his due process as an American citizen sort of negate that freedom thing argument ? So did FDR just decide to wack Tokyo Rose with no due process -wasn’t she also an American citizen ?

    And in a related sidebar why has there not been more outcry against all the right wing rabble rousing regarding the Mosque/Community Center at ground zero WTC ? Does that not also negate they hate us for our freedom meme ?

    • conradcelledge says:

      It has been a clever ploy, a conspiracy if you will, of our government to remove the reason America is hated by terrorists. Soon there will be no freedom in America and the terrorists will love us. I guess then we could bring the troops home and take care of our own business here at home.

  2. klynn says:

    I asked whether they thought this was intentional–that is, whether they thought the government had designated Awlaki a terrorist so as to make it harder for the ACLU and CCR to represent him. Romero admitted the timing of the listing “did raise our eyebrows.” He said the timing raises the question of “whether OFA is being used to impede lawyers’ ability to challenge” programs like the kill list.

    (snip)

    Implicit in my question was how the government knew the ACLU and CCR were representing the Awlakis.

    Thank you for the last two posts EW. “Timing is everything,” seems to be more of the reality surrounding the “kill orders with no due process.”

    OT:

    Have you read Cynthia’s diary or ET‘s?

  3. earlofhuntingdon says:

    The odds that this designation is not an outside the courtroom defensive litigation tactic seem poor. Geithner could have made that designation any time in the last year; he did it only after lawyers were named to represent a named target of government assassination.

    That calls into question who the state considers its enemy: a US national it now claims is bent criminal violence, a future act (crimes are past acts) – without publicly disclosing its evidence or having that evidence examined; or lawyers whose task it is to force the government to abide by its own laws and constitutional processes.

    • michaelfishman says:

      That calls into question who the state considers its enemy:

      It also calls into question who is doing the legislating around here. When Tim Geithner can determine what is criminal, or who falls within a criminal statute with a flick of his pen, by adding someone to this list he keeps in his pocket, how is that not legislating? And where in Article I does it say that the funtion of Congress is to write blank checks to the Executive?

  4. kgb999 says:

    What would happen if the ACLU just kept working the case as an act of civil disobedience? Or is that even possible?

      • BoxTurtle says:

        Yup. The government is making it’s position clear: Once we’ve accused somebody, NOBODY can help them.

        They’re going to have to have that law tossed before they spend one more billable hour on the case.

        But remember, it’s not Obama or Holder that’s being evil. It’s all Rahm’s doing.

        Boxturtle (Or perhaps I’m spending too much time consulting the Great Orange Satan)

      • earlofhuntingdon says:

        Something of a big stick, depriving those whom the government claims are its worst enemies of the right adequately to defend themselves in court against that governments actions, including, um, being designated such an important target. Bullseye.

  5. skdadl says:

    Is civil disobedience a crime as such? I’m trying to think about definitions of civil disobedience, or occasions when it appears that citizens are not breaking laws, or are standing on constitutional principle, but they are being arrested anyway.

    • BoxTurtle says:

      Civil disobedience normally entails breaking some minor law, trespassing or refusal to disperse for example. And they get arrested, fined, warned, and tossed back on the street as soon as they make bail.

      Only way to keep things like this from coming in front of a real judge is to threaten the lawyers. And I’m certain that ObamaLLP would charge anyone who filed paperwork in support of Anwar.

      In spite of the dignity due the office, if somebody tossed a rotten tomato at Obama I’d hope it had worms.

      Boxturtle (And I’d hope Obama was in his BEST suit, with a fresh haircut)

    • earlofhuntingdon says:

      Civil disobedience is often a crime, in that it often targets unjust laws or their unjust application.

      The disobedience is “civil” in that the flouting an unust law peacefully accepts the consequences of that lawbreaking, thereby demonstrating the injustice of the law, including the often excessive penalties meted out for breaking it: death or the galleys for stealing a loaf of bread; hanging or a long prison sentence for speaking as an equal to someone of another color, or marrying them. The real harm such laws attempt to avoid, and the reason punishment is ludicrously excessive, is often harm to exclusive eocnomic or social interests of a privilege, sometimes a foreign elite. The punishment is intended to avoid all debate about such privileges, because there is no rational basis for them; opening them to debate is tantamount to conceding the need for those privileges to be discarded.

    • conradcelledge says:

      Successful civil disobedience costs them not you. Find a structure that leaves you intact. You might start by throwing your television in the front yard to express your rejection of main stream media. Imagine they spend billions on political ads you don’t watch.

  6. MadDog says:

    Breaking news via Josh Gerstein over at Politico:

    Treasury to allow al-Awlaki lawsuit

    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…

    …The head of Treasury’s sanctions office, Adam Szubin, said in a statement that Treasury’s policy “is to broadly authorize the provision of pro bono legal services” to designated persons who want to challenge the government in court. “To the extent that the particular legal services that the ACLU wishes to provide in this instance do not fall into any of the broad categories that are generally licensed, [Treasury’s Office of Foreign Assets Control] will work with the ACLU to ensure that the legal services can be delivered,” Szubin said…

      • MadDog says:

        I’m guessing somebody (or somebodies) further up the food chain at Treasury, the DOJ, and/or the White House had a “WTF?” moment.

        Probably wishing that stupidity was, at the least, a barrier to government employment, but such is not the case. *g*

  8. Kelly Canfield says:

    Not to muddy the waters here, but let me just make a few notes about OFAC itself.

    Every electronic money transaction made in the US has a data check to see if it belongs to OFAC scrutiny. Every single one, and that’s not hyperbole.

    It’s built into the Financial EDI system, by the formation of account numbers. Look at your checks, and you see the set of numbers at the bottom; that’s the MICR line, and readable electronically. The first set is the bank institution, along with it’s Fed#, FedRegion and NACHA number. The second is your specific account info, along with check#.

    If any US transaction fails the EDI formation test, it gets dumped into a “test me now” database for checking against the institution#, and if it’s foreign. If so, it runs through OFAC’s database before it’s released, and it’s checked against controlled assets.

    So who provides that service?

    It’s agreed upon EDI systems format, and the premier provider is Sterling Commerce. Who owned Sterling until its sale in May to IBM?

    AT&T.

    There ain’t no money, no how, in the US that ain’t going anywhere without traceable and monitored “fingerprints” on it at anytime.

  9. MadDog says:

    OT – A great big FU from our Democratic Senators and the MSM to all of us dirty fookin’ hippie bloggers – via Charlie Savage at the NYT:

    After Afghan War Leaks, Revisions in a Shield Bill

    …Senators Charles E. Schumer and Dianne Feinstein, Democrats of New York and California, are drafting an amendment to make clear that the bill’s protections extend only to traditional news-gathering activities and not to Web sites that serve as a conduit for the mass dissemination of secret documents. The so-called “media shield” bill is awaiting a vote on the Senate floor.

    “WikiLeaks should not be spared in any way from the fullest prosecution possible under the law,” Mr. Schumer said in a statement. “Our bill already includes safeguards when a leak impacts national security, and it would never grant protection to a Web site like this one, but we will take this extra step to remove even a scintilla of doubt.”

    [snip]

    …Paul J. Boyle, senior vice president for public policy at the Newspaper Association of America — which supports the bill — said Senate aides had asked his group to consult on the proposed changes.

    Mr. Boyle argued that the WikiLeaks case could, paradoxically, help supporters of the bill. He contended that the increasing use of subpoenas to pressure reporters to identify sources created incentive for would-be leakers to send material to a group like WikiLeaks rather than to a traditional news organization subject to American law and having editorial controls and experience in news judgment.

    • michaelfishman says:

      I’m probably being really dense here, but I can’t tell from the quote,

      …Paul J. Boyle, senior vice president for public policy at the Newspaper Association of America — which supports the bill — said Senate aides had asked his group to consult on the proposed changes.

      Mr. Boyle argued that the WikiLeaks case could, paradoxically, help supporters of the bill. He contended that the increasing use of subpoenas to pressure reporters to identify sources created incentive for would-be leakers to send material to a group like WikiLeaks rather than to a traditional news organization subject to American law and having editorial controls and experience in news judgment.

      what it is the Association is supporting. Is it the media shield bill before the Shumer-Feinstein amendment, or the bill as S-F would amend it? What did they tell the Senate aides (who) had asked his group to consult on the proposed changes?

      I apoligize for the double posting. I couldn’t get any of the edit functions to work, including cancel and reply to.

      (Moderator: I’d appreciate it if you could remove #25 in its entirety)

    • bobschacht says:

      Oh, that’s good news, if true!!!

      But he’ll probably just be hired by Cofer Black, or Blackwater, or one of the other big Intelligence outfits, to act as a liaison with Republicans in Congress, at a nice big fat salary.

      Bob in AZ

  11. michaelfishman says:

    I’m probably being really dense here, but I can’t tell from the quote,

    …Paul J. Boyle, senior vice president for public policy at the Newspaper Association of America — which supports the bill — said Senate aides had asked his group to consult on the proposed changes.

    Mr. Boyle argued that the WikiLeaks case could, paradoxically, help supporters of the bill. He contended that the increasing use of subpoenas to pressure reporters to identify sources created incentive for would-be leakers to send material to a group like WikiLeaks rather than to a traditional news organization subject to American law and having editorial controls and experience in news judgment.

    what it is the Association is supporting. Is it the media shield bill before the Shumer-Feinstein amendment, or the bill as S-F would amend it? What did they tell the Senate aides (who) had asked his group to consult on the proposed changes?