Pardiss Kebriaei, staff attorney at the Center for Constitutional Rights, discusses the ACLU/CCR joint lawsuit against the Treasury Department for ignoring a request for permission to represent the father of accused terrorist (and U.S. citizen) Anwar al-Aulaqi, the dubious legal gatekeeping role assigned to the Treasury Department’s Office of Foreign Assets Control, the dozens of people on Obama’s extrajudicial executive assassination hit-list, why the Obama DOJ Office of Legal Council probably has memos that would make David Addington blush, the lawyer-free zone for Specially Designated Global Terrorists and how the post-9/11 Authorization for Use of Military Force is now used as a blanket justification for U.S. military or covert action anywhere on anyone.
MP3 here. (18:52) Transcript below.
Pardiss Kebriaei joined the Guantánamo Global Justice Initiative at the Center for Constitutional Rights (CCR) in July 2007. She provides direct representation to several of CCR’s clients at Guantánamo and helps coordinate CCR’s network of hundreds of pro bono counsel representing other prisoners. She also focuses on using international human rights mechanisms to bring international pressure to bear on the U.S. government and hold other governments accountable for their role in the violations at Guantánamo.
Pardiss came to CCR after five years at the Center for Reproductive Rights, where she specialized in international litigation, working within the Inter-American, European and UN human rights systems, and in foreign jurisdictions including the Philippines, India, Nepal, Thailand, and Colombia.
She has also worked with Global Rights in Morocco and as an adjunct professor at Hunter College in New York, where she taught courses on international human rights and women’s rights. She is a graduate of the University of Pennsylvania Law School and has degrees in Middle Eastern studies and cello performance from Northwestern University. She speaks Farsi, Dari and French.
Transcript – Scott Horton interviews Pardiss Kebriaei, August 3, 2010
Scott Horton: All right y’all, welcome back to the show. Thanks for listening. It’s Antiwar Radio. I’m Scott Horton. And earlier on in the show, I was flipping through the tabs here and I hit refresh on Glenn Greenwald’s blog and found the headline, “ACLU, CCR” – that’s the American Civil Liberties Union and the Center for Constitutional Rights – “seek to have Obama enjoined from killing Awlaki without due process.”
Now, this guy Awlaki was born in the United States – I think in New Mexico – and, well, we’ll get to that – and he’s an American citizen. And Barack Obama – his intelligence director Blair said that this guy was on the death mark list, I guess you could call it, and that was confirmed by anonymous administration officials in the Washington Post. And then Eli Lake published an interview in the Washington Times with John Brennan, Obama’s head of counterterrorism, who said that there are dozens of American citizens around the world who are on a list of people to be murdered, executed, assassinated, by the CIA or the Joint Special Operations Command.
And now we are joined on the phone with a lawyer from the Center for Constitutional Rights. Her name is Pardiss Kebriaei. Welcome to the show. How are you doing?
Pardiss Kebriaei: I’m good, thank you very much.
Horton: Did I say your name right?
Horton: Ha! So, somebody in the chat room just owes somebody five bucks. Okay.
Horton: All right, now, okay, so there are two important issues at stake here. The first thing is, you guys are filing a lawsuit of behalf of Anwar Awlaki’s father, seeking to prevent Barack Obama from murdering him. And then secondly, there’s this giant hurdle that you have to cross to get permission from the Treasury Department? Or else, according to Glenn Greenwald’s writing here – and he’s a constitutional lawyer – he says you could be prosecuted for a criminal offense for attempting to be a lawyer for this accused? Is that even the right legal term for this guy’s father? Help me, please, understand.
Kebriaei: Sure. No, that’s exactly right. The case today that was brought by CCR and the ACLU is against the Department of the Treasury and a unit, an agency within the Treasury Department called the Office of Foreign Assets control, to challenge the legality and the constitutionality of a scheme that essentially requires attorneys like us, organizations like us, who provide pro bono legal services, to get a license, to get special permission, to be able to represent, provide services to or for the interest of someone who has been labeled by the government, through their own bureaucratic process, labeled as a terrorist.
So what’s happened here is that we were retained by the father of Anwar al-Awlaki in early July, in connection with the authorization by the president, by the executive branch, to target and kill his son, who is currently hiding in Yemen. And essentially the authorization gives the green light to the CIA and the special forces of the U.S. military to go into Yemen with a drone or with whatever other means and to target this person without any kind of due process, any kind of transparency, anything at all like that.
Horton: Well even short of that, they don’t even seem to really be making concrete assertions. I mean, when anonymous administration officials talk to the Washington Post, they say they believe that he is tied – and, you know, they have – he apparently is associated with a couple of the 9/11 hijackers, with the Fort Hood shooter, as well as, they claim anyway, Abdulmutallab, the attempted Christmas Day Detroit Underbomber there. But all we get is sort of half-baked assertions where they don’t even say they know. They claim, anonymously, to believe that this guy is tied to terrorists.
Kebriaei: That’s exactly right. And I think what gets lost a little bit is that the allegations that have been made publicly about this person – or, you know, I’m not sympathetic if you believe what the government is saying, but we have to remember, and we cannot lose sight of the fact, that these are allegations at this point. This person is a suspect. He is not someone who has been charged and tried and convicted of any crime.
And there are plenty of reasons, given the experience that we’ve had since 9/11, to question the government’s say-so. I mean, we know now, eight years after Guantanamo first opened and after mass detentions of men in the United States and elsewhere, that the government deemed hundreds if not thousands of people around the world as dangerous terrorists, the worst of the worst, you know, detentions, detained them, subjected them to torture, rendered them, only to find out later, either though a court process or themselves that they often had the wrong people. So there is good reason to really be skeptical of the allegations that are being made.
Horton: Well, and it’s not just the allegations, too, but it’s the entire legal theory, right? I mean, this goes – you know, all these memos were repudiated by the Bush administration five days before they left office, many of them even before that, that said that, you know, Bush is the king of the world and he has plenary powers to override any law or constitutional amendment or anything that he could ever imagine, and they got rid of all of that.
But then I wonder, there must be a giant pile of new memos written up by Obama’s Office of Legal Counsel and Obama’s White House Counsel’s office that tell him that he has the authority to murder anyone in the world, that the whole world’s a battlefield, and in fact he’s claiming more authority here than David Addington and them ever dreamt of, right?
Kebriaei: Right. I mean, I think the Obama administration has not come out entirely clearly about what their justification is for authorizing the targeted killing of a U.S. citizen in a country like Yemen, which is thousands of miles away from any war zone in Afghanistan or Iraq. So they haven’t come forward and clearly explained what they’re relying on. But they have sort of asserted that one authority they are relying on is the authorization, called the Authorization for the Use of Military Force, that was issued by Congress after 9/11 that was the basis for the U.S. to go into Afghanistan.
Well, whatever you think about that authorization and what followed from it, that was not a blank check for the U.S. government and the executive to therefore say, you know, “On the basis of that authorization, we have the right to go into any country in the world, wherever we want, whenever we want, with respect to whoever we want, and commit U.S. troops, and you know, take military force to those countries.” It was not an open-ended license like that, at all.
So, but that’s – I mean that’s one basis that the U.S. seems to be using as justification for what they’re trying to do here. Which is terrifying. I mean, you know, by claiming a war on terror, that does not render the entire world a battlefield. But that’s essentially what this precedent would set.
Horton: Yeah, I mean, and that term just sounds silly, really. But what it means is there’s no law that binds the power of the commander-in-chief. He’s not the chief executive of, you know, American government departments; he’s the commander of the Army, even in our own neighborhood, and including over our own family members, even – is the power he’s claiming here.
And now, isn’t it the case, if not the law – because I wouldn’t rely on Congress, I hate to even say – but certainly the courts must have ruled already – my understanding was that a “U.S. person” means anybody inside the United States or any American citizen anywhere in the world, and that those U.S. persons are entitled to all of the Bill of Rights, no matter what – no matter what?
Kebriaei: That’s right.
Horton: As long as the courts are open for business, they ruled after the Civil War.
Kebriaei: That’s exactly right. And our argument would be that Mr. Awlaki’s son is a U.S. citizen; he’s someone who was born in this country, he’s in a country that the U.S. is not involved in a war with, and that he should, just like any other U.S. citizen, or any other U.S. person, have the right to know what the evidence may be against him, to challenge it, to be charged, and to be given a fair process. If indeed, you know, what the government has alleged is true, if there is credible evidence for that, give him a process. Charge him and try him. But it is absolutely illegal for the U.S. to do what it’s purporting to do here, which is authorize his killing through a secret executive process in a country that is far from any battlefield.
Horton: Well, and when John Brennan claims dozens of American citizens on this list, to Eli Lake, I think, the presumption was there that there are people all over the world on any continent – they could be in Antarctica, they could be the furthest place from any real battlefield –
Horton: It’s a legal theory, this battlefield, not a place.
Kebriaei: Exactly. And, you know, again, another important point here is that whatever the public may think about this particular case and this particular person, it’s the precedent that this sets.
Horton: Well, you can stay 10 more minutes, please?
Horton: Okay, because we’ve got to discuss whether you’re a felon now for trying to take this case. We’re talking with a lawyer from the Center for Constitutional Rights, Pardiss Kebriaei, I think. We’ll be right back.
Horton: All right, y’all, welcome back to the show. It’s Antiwar Radio. I’m Scott Horton. And Barack Obama claims the power to be the cop, the prosecutor, the judge, the jury, the jailer, and the executioner now of American citizens, and the Center for Constitutional Rights and the ACLU are suing him over it. I’m talking with a lawyer from the Center for Constitutional Rights, Pardiss Kebriaei, and she’s saying no to this. And the Obama administration seems to be trying to set up a situation where they could prosecute you for daring to be a lawyer of someone that they call a terrorist? Say that ain’t so. C’mon, this is America.
Kebriaei: Yeah, no, that’s exactly what’s happening. We at CCR and the ACLU would indeed be subject to pretty severe fines and criminal penalties if we were to go forward to represent the father of someone – the father who himself is not designated as a terrorist at all – but to represent him in a case representing the interests of his son, who is on the list, in connection with the government’s decision to authorize his son’s death through an executive process without any kind of judicial review. So that is indeed what we’re talking about today.
Horton: Okay, now, so, how does this work? Please explain. We have a very sophisticated audience here at Antiwar Radio. They can keep up. How is it that you have to get permission from the government to represent this guy’s father?
Kebriaei: There is a licensing scheme that was promulgated by the Department of Justice and an agency within them called the Office of Foreign Assets Control. And essentially there are regulations that make it against the law to provide broadly what’s termed property or services or interest in property to anyone who has been designated by the government as someone called a “specially designated global terrorist.” There are hundreds and hundreds of people and organizations who are on this list. And again, you get on this list, really, just through an administrative process. It’s not through the courts. It’s through just an administrative decision to put someone on this list.
So what happened is that we were retained by Nasser al-Awlaki, who is the father of someone who is on this list, who has been targeted for death by the U.S., who is in Yemen right now. Two weeks after we were retained and were actively working on a case to challenge the government from killing his son, who again is a U.S. citizen and should be entitled to due process, the Department of Treasury designated his son as a terrorist. And given that designation at this point, under the regulations that currently exist – which we think are unconstitutional and illegal, but they exist – that under that framework, it would be a crime for us to go to court and represent the father in a case asking the government to give his son, you know, basic due process if they’re going to kill him.
Horton: Okay, well, this is just sort of a technical point, I guess, but there used to be a thing called an “enemy combatant.” And then, as best I understand, the Obama administration still has the same sort of really lawless category. It’s a made-up word because it’s not in the law, that’s why they made it up. And they changed it to – in the Obama administration – to an “unprivileged enemy belligerent.” Is that the same thing as a “specially designated global terrorist,” or these things are, you know, on the Venn diagram, they sometimes overlap but not necessarily?
Kebriaei: You know, I don’t really know what the standards are for the government to designate someone as a specially designated terrorist. You’re right that the Obama administration sort of abandoned the literal term “enemy combatant,” but they’re now using, you know, just another word that essentially means the same thing.
But as far as the overlap, part of the problem is that the categories are so vague, and they’re not defined, so it’s hard to know exactly what you have to be doing to be designated as either an SDGT or an enemy combatant or whatever else the Obama administration’s calling people these days. So that’s part of the problem – is overbroad and vague standards and a lack of definition and standards that meet the law, as codified in the Constitution and in international rules.
Horton: All right, now, I’m looking at this great article by Glenn Greenwald today at Salon.com/opinion/greenwald, about this lawsuit that y’all have filed. It’s called “ACLU, CCR seek to have Obama enjoined from killing Awlaki without due process.” And so, if I can focus more on this whole thing about whether you’re a criminal now or not for participating in this.
So they pass this law or this rule or something – you can clarify – that says that if you want to represent someone that’s a specially designated global terrorist, you have to get permission from the Treasury Department first. So you guys wanted to represent this guy’s father in a lawsuit to prevent – to try to get the court to tell Obama, “You may not murder this guy this way.” So, you went to the Treasury Department and said, “Okay, well, so give us the license to represent this guy’s father like in the new rules,” and then they didn’t even so much as answer you. So now you’re suing to get permission to represent the father so you can represent the father in a lawsuit against Obama to prevent him from murdering the father’s son.
Kebriaei: That’s exactly right. And in our request – we filed a request about 10 days ago with the Treasury Department, saying that we think these regulations, if they were to deny us a license, are illegal and unconstitutional, but given that they exist, then that’s the current law, you know, we’re requesting a license. But we underlined that we’re talking about urgent circumstances here. We’re talking about an order for our client’s son’s death. So we asked them to respond, you know, immediately. And that was 10 days ago. Right now we haven’t heard anything from OFAC or from the Department of the Treasury, and given that, you know, the silence, we did go to court today to basically challenge what’s constructively been a denial of a license allowing us to go forward.
Horton: Well, now, so what about your lawyer? Is he telling you, “Don’t worry, I’ll keep you out of prison”? You could really get in trouble for this.
Horton: You have your cart and your horse in order here, right?
Horton: You’re waiting to see whether the court will mandate the Treasury Department to give you the license. But if they don’t, then you’re going to go ahead and try to represent this guy’s father anyway?
Kebriaei: Well, we’re going to have to wait and see what happens. We do think that – we will pursue, I think, the challenge to the constitutionality and legality of this scheme. If we don’t get a quick answer from the court or get a license, we’re going to have to revisit, you know, our strategy in whether we would go forward with the underlying case or not. We’re sort of taking things a day at a time.
But at this point we’ve got a pretty quick schedule that we’ve asked for from the court to hear our arguments and require the government to respond and have a hearing and argument in court so that we can try to resolve this quickly and move forward with what’s really at issue, which is that the government has authorized the death of our client’s son in a country that we are not at war with, without any kind of due process, and that would be illegal in many circumstances, that we’re talking about a U.S. citizen here.
Horton: Well, I’m determined to get a kick out of the absurdity of it. I just – I can’t even believe that this is real. We’re not talking about a story from what it was like in Russia back in the ’40s or something, we’re talking about in America, right now.
And you know what? Here’s where I get to stop and praise the ACLU and the Center for Constitutional Rights, and there’s a lesson out here I think for the audience in the whole thing about: well, if I don’t do it, who will? And somebody’s got to do it. [If] you guys don’t file this lawsuit, it doesn’t get filed. And that’s the way space-time works, you know – somebody’s actually got to do the work to try to stop them, the best way whoever it is knows how, and I’m so thankful that there are people like you who have the credentials and the ability to file these suits and try to challenge this madness. And so thank you.
Kebriaei: Oh thank you.
Horton: And thank you for your time on the show today.
Kebriaei: Thank you for having me.