Should lawyers be required to obtain a government-granted license before being allowed to represent an American terror suspect? It's a Treasury Department regulation. An unconstitutional one, to my mind, and one that's being challenged. But this latest civil liberties skirmish is indicative of a larger point: President Barack Obama is putting less and less daylight between his policies and those of his predecessor.
The issue comes up because the Obama administration has decided to kill Anwar al-Awlaki, a radical Muslim cleric and American citizen who is believed to be in Yemen. Al-Awlaki's father objects to the targeting of his son, claiming his child is not a terrorist. He contacted the American Civil Liberties Union and the Center for Constitutional Rights, enlisting those groups to challenge the use of lethal force against an American civilian who is far from a combat zone and who hasn't been given a chance to rebut allegations against him. But under Treasury Department rules, human rights lawyers can't provide free legal help to a designated terrorist without first getting a license from the Office of Foreign Assets Control.
Undoubtedly many people will think it is okay to assassinate al-Awlaki. He's accused of inciting Muslim terror against the United States and directing the Christmas Day bomber's attempted downing of a Detroit-bound flight. He surely seems like an enemy of the state. But it is worth remembering that our government imprisoned hundreds of men at Guantanamo, calling them the "worst of the worst," abusing many of them, and then releasing most without any charges of terrorism.
We don't always get it right. Fog-of-war errors in judgment happen frequently, and that should raise red flags when considering a precedent that allows the summary execution of Americans suspected of terrorism. Even if caution is duly practiced at the beginning, things have a tendency to get sloppy later.
Still, the central question here is whether lawyers for this marked man should first have to get permission from the U.S. Treasury Department — the party they are suing — before they can provide representation.
The human rights groups applied for a license on July 23, indicating the urgency of the request. After not hearing back for 11 days, even as al-Awlaki's life was in danger every minute, they sued, contesting the legality of the regulation. On Wednesday, the Treasury Department issued the license, though it indicated that it could be revoked at any time. Not surprisingly, the ACLU's challenge will continue.
If the Obama administration maintains its stance that the government can impose special licensing requirements on lawyers, it will be one more example of this president failing to live up to his civil liberties promises.
On Obama's second full day in office it appeared that American principles of due process were being resurrected. The new president signed a series of executive orders that abolished torture, ended the CIA's practice of secret detention and directed the closure of Guantanamo, (which hasn't happened due to a recalcitrant Congress).
But since then Obama has roundly disappointed. Just for starters, the president has posited that some Guantanamo detainees may be held indefinitely without trial in a form of preventive detention — something that would have been unthinkable to candidate Obama. He supports the use of a flawed and internationally discredited military commission system to try terror suspects, even after the federal courts have demonstrated they are well equipped to handle these matters. And his administration has blocked torture victims from getting their day in court, claiming state secrets would be disclosed if the lawsuits proceeded and arguing that government defendants — torturers — are immune from suit.
Beyond the immediate adverse impact of these judgments, Obama's embrace of Bush-era policies and powers — once viewed as extreme and renegade — helps to legitimize and cement them into what the ACLU calls the "new normal."
Requiring licenses for lawyers and making citizens targets for assassination without legal process are just a couple more bricks in this worrisome legal structure. And just as it was under President George W. Bush, it will be up to the courts to put things right.