1 Exec. Order No. 13, 304, Termination of Emergencies with Respect to Yugoslavia and Modification of Executive Order 13219 of June 26, 2001, sees. 1-3, 68 Fed. Reg. 32, 315, 32, 315-16 (May 29, 2003) [hereinafter EO 13, 304]. Executive Order Nos. 13, 304 and 13, 219, as well as the regulations implementing them, see infra notes 11-12 and accompanying text, are available online at <http://www.ustreas.gov/offices/eodfc/ofac/legal/balkans.html>.

2 50 U.S.C. §§1701-1706 (West Supp. 2002) [hereinafter IEEPA].

3 Exec. Order No. 13, 219, Blocking Property of Persons Who Threaten International Stabilization Efforts in the Western Balkans, sec. 1 (c), 66 Fed. Reg. 34, 777 (June 27, 2001) (incorporated by reference in EO 13, 304) [hereinafter EO 13, 219].

4 EO 13, 304, supra note 1, annex, 68 Fed. Reg. 32, 318-22 (May 29, 2003). The annex indicates which of the listed individuals are ICTY indictees.

5 This information concerning the U.S. attorneys representing defendants at the ICTY (as of June 21, 2003) was supplied by the ICTY Registry.

6 Letter from David W. Mills, Chief of Licensing, Office of Foreign Assets Control, to Russell Hyman 1 (June 17, 2003) [hereinafter Mills letter], attached to Appellant’s Urgent Request for Temporary Suspension of Appellate Proceedings (June 18, 2003), Prosecutor v. Blaškić, Case No. IT-95-14-A [hereinafter Appellant’s request for temporary suspension].

7 Letter from R. Richard Newcomb, Director, Office of Foreign Assets Control, to Theodor Meron, President, International Criminal Tribunal for the Former Yugoslavia 1 (June 19, 2003) (on file with author) [hereinafter Newcomb letter].

8 Office of Foreign Assets Control, U.S. Dep’t of the Treasury, General License No. 1, Legal Representation in Matters Pending Before the International Criminal Tribunal for the Former Yugoslavia, July 9, 2003 (issued under Western Balkans Stabilization Regulations, infra note 12) [hereinafter General License]. This document is available online at <http://www.ustreas.gov/offices/eotfFc/ofac/sanctions/sanctguide-balk.html>.

9 EO 13, 219, supra note 3, preamble, 66 Fed. Reg. at 34, 777. The targeted individuals were members of extremist Albanian nationalist groups in Kosovo, Macedonia, and Serbia. Id., annex, 66 Fed. Reg. at 34, 780–81.

10 Appellant’s request for temporary suspension, supra note 6, para. 3.

11 Mills letter, supra note 6, at 1.

12 31 C.F.R. pt. 588 (2003). These regulations prohibit U.S. persons from providing funds, goods, or services to blocked individuals. Sec 31 C.F.R. §588.201 (b).

13 Appellant’s request for temporary suspension, supra note 6, para. 6.

14 Prosecutor v. Brdjanin, Case No. IT-99-36, Transcript, at 17, 870–72 (June 19, 2003).

15 U.S. Treasury Allows American Lawyers to Defend Yugoslav War Crimes, Associated Press, June 20, 2003.Google Scholar

16 Newcomb letter, supra note 7, at 1.

17 Id.

18 Indeed, IEEPA provides:

50 U.S.C. §1702(a)(S).

19 General License, supra note 8.

20 Newcomb letter, supra note 7, at 1.

21 See, e.g., Fila: Bush Decree Is a Blatant Case of American Harassment, Balkan (Belgrade) June 20, 2003, at 5 Google Scholar (translation on file with author). Toma Fila is a defense lawyer practicing before the ICTY.

22 See, e.g., The UN. Criminal Tribunals for Yugoslavia and Rwanda: International Justice or Show of Justice? Hearing Before the House Comm. on Int’l Relations, 107th Cong. (Feb. 28, 2002)Google Scholar (statement of Pierre Prosper, ambassador-atlarge for war crimes issues) (“The United States remains proud of its leadership in supporting the two ad hoc Tribunals and will continue to do so in the future.”); U.S. Lauds Stakic Verdict, Says Mladic, Karadzic Must Be Caught, Agencefrance-Presse, Aug. 1, 2003 Google Scholar (quoting statement of Richard Boucher, U.S. Department of State spokesman, applauding Stakic trial chamber judgment); Status of Contributions as of 28 February 2003, UN Doc. ST/ADM/SER.B/602, at 80-83 (2003) (showing that United States contributed approximately $31 million of the ICTYs approximately $119 million budget for 2003).

23 EO 13, 304, supra note 1, preamble & sec. 1.

24 Serbia and Montenegro Meet Test for War Crimes Tribunal, U.S. Says, N.Y. Times, June 17, 2003, at A4.Google Scholar

25 EO 13, 304, supra note 1, pmbl.

26 On July 1, 2003, the European Union imposed a travel ban on fourteen individuals identified as “involve[d] in the evasion of justice under the [ICTY].” See Council of the European Union Press Release 11024/03, The Council of the European Union Extends Travel Ban on Persons Involved in Evasion of the International Criminal Tribunal for the Former Yugoslavia (July 1, 2003), a«http://ue.eu.int/newsroom/newmain.asp?LANG=l>. The Office of the High Representative froze the bank accounts of the same individuals a week later. See Office of the High Representative Press Release, High Representative Announces Further Action in the Fight Against Crime (July 7, 2003), at <http://www.ohr.int/ohr-dept/presso/pressr/archive.asp>.

27 See, e.g., Targeting Karadzic’s Bosnian Financiers Signals Strategy Change—Commentary, Nin (Serbia), Mar. 14, 2003 Google Scholar (describing coordinated raids at seven locations undertaken by SFOR, with the approval of the United States and the Office of the High Representative for Bosnia and Herzegovina, during the first week of March 2003); Nato Warns Karadzic and Mladic, Bbc News, Apr. 11, 2003, at <http://news.bbc.co.Uk/2/hi/europe/2938715.stm>>Google Scholar.

28 31 C.F.R. §588.507(a). The authorization was subject to the condition, however—also like other OFAC sanctions regulations—that any payments for professional fees and expenses would need to be specifically licensed. Id. The regulations were first issued in May 2002, fee 67 Fed. Reg. 37, 671 (May 30, 2002). Regulations implementing other OFAC-administered blocking orders contain identical (or nearly identical) provisions authorizing the provision of certain classes of legal services but requiring individual licenses for the receipt of payment for those services. See, e.g.,31 C.F.R. §515.512 (2003) (Cuban Assets Control Regulations); 31 C.F.R. §550.517 (2003) (Libyan Sanctions Regulations); 31 C.F.R. §595.506 (2003) (Terrorism Sanctions Regulations).

29 The general license that the Treasury Department belatedly added to the Western Balkan Stabilization Regulations has the effect of adding defense work at the ICTY to the list of legal services permitted without specific licensing. The general license thus renders moot a Supremacy Clause argument that—even if the general license had not been promulgated—might have been used to justify the legality of unlicensed defense work paid for by the Tribunal The argument would have gone as follows. The UN Charter is a treaty to which the U.S. is a party, and is thus a part of “the supreme Law of the Land.” U.S. Const. Art. VI. The Tribunal’s Statute was adopted by the Security Council pursuant to Chapter VII (Article 41) of the Charter, and Article 25 of the Charter obligates member states to “to accept and carry out the decisions of the Security Council.” Article 21 of the Statute, which was adopted through a resolution of the Security Council, guarantees defendants the rights to have “legal assistance of [their] own choosing” and “to have legal assistance assigned to [them], in any case where the interests of justice so require, and without payment by [them] in any such case if [they] do[] not have sufficient funds to pay for it.” Therefore, the ICTY Statute’s guarantee of legal counsel at public expense is a piece of “prevailing U.S. law requiring] access to legal counsel at public expense,” thus falling within 31 C.F.R. §588.507(a) (5).

Of course, the argument founders on (at least) one well-marked shoal: the long-standing distinction between self-executing and non-self-executing treaty provisions. Only the former establish domestic legal rules and thus potentially constitute “prevailing U.S. law.” Neither Article 41 nor Article 25 of the Charter is self-executing. Article 41 empowers the Security Council to take certain actions but does not say anything about domestic legal rules in member states. Article 25 represents a promise by member states to assist in carrying out the Security Council’s decisions. Language promising future action is the hallmark of a non-self-executing treaty provision. See, e.g., Foster v. Neilson, 27 U.S. 253, 314 (1829) (“when the terms of the stipulation import a contract, when either of the parties engage to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court”); see generally, e.g., Carlos, M. Vázquez, The Four Doctrines of Self-Executing Treaties, 89 AJIL 695 (1995)Google Scholar. Security Council Resolution 827 (May 25, 1993), by which the Council adopted the Tribunal’s Statute, included similarly promissory language—that “States shall cooperate fully” with the Tribunal and “shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute.”

Even if the guarantee of Tribunal-paid counsel for indigent defendants does not constitute an obligation in U.S. domestic law, respecting and assisting the fulfillment of that guarantee (because it reflects a decision of the Security Council) remains a U.S. obligation under international law. As initially promulgated, EO 13, 304 seemed to be in some tension with that obligation.

30 50U.S.C. §§1701, 1702(a)(1)(B).

31 Id. §1702(a)(2).

32 See Dames & Moore v. Regan, 453 U.S. at 671-74 (1981) (upholding president’s authority to nullify judicially ordered attachments and to order transfer of the affected assets); Holy Land Found, for Relief & Dev. v. Ashcroft, 333 F.3d 156, 162-63 (D.C. Cir. 2003) (upholding broad reading of “property in which” targeted entities “have any interest” as including both beneficial and legal interests); Global Relief Found, v. O’Neill, 315 F.3d 748, 752–54 (7th Cir. 2002) (same); Paradissiotis v. Rubin, 171 F.3d 983, 988 (5th Cir. 1999) (approving Libyan Sanctions Regulations as consistent with “sweeping powers” given to the president in IEEPA); Consarc Corp. v. Iraqi Ministry, 27 F.3d 695, 701 (D.C. Cir. 1994) (approving OFAC’s broad definition of “property” and “property interest” in Iraqi Sanctions Regulations to include letters of credit); United States v. Lindh, 212 F. Supp.2d 541, 558–64 (E.D. Va. 2002) (upholding broad interpretation of “transaction,” “dealing,” “use,” and “property” to include serving in Taliban and Al Qaeda forces); cf. Regan v. Wald, 468 U.S. 222, 230-40 (1984) (giving broad reading to IEEPA/TWEA grandfather clause for Cuban Assets Control Regulations). Courts’ deference has been heightened by several factors: IEEPA’s express grant to the president of the authority to issue regulations further defining statutory terms, see 50 U.S.C. §1704, Consarc Corp. v. Iraqi Ministry, 27 F.3d at 701; Chevron deference, see Chevron U.SA v. Natural Res. Def. Council, 467 U.S. 837 (1984), see, e.g., Consarc Corp. v. Iraqi Ministry, 71 F.3d 909, 914 (D.C. Cir. 1995); and deference to the executive branch in matters of foreign policy and national security, see, e.g., Paradissiotis v. Rubin, 171 F.3d at 988.

33 This argument, though, would still seem to leave the provision of pro bono legal services as falling outside IEEPA’s scope. Cf. Dames & Moore v. Regan, 453 U.S. 654, 675-78 (1981) (holding that suspension of lawsuits exceeded president’s power under IEEPA to regulate “transactions”); Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 359–63 (11th Cir. 1984) (holding that initiation of an in personam lawsuit does not require license under Cuban Assets Control Regulations).

34 See, e.g., Centrifugal Casting Machine Co. v. Am. Bank & Trust Co., 966 F.2d 1348 (10th Cir. 1992) (refusing to consider letter of credit with respect to which targeted government company was account party as property interest of that company under IEEPA); Dean Witter Reynolds v. Fernandez, 741 F.2d at 359–63 (holding that initiation of an in personam lawsuit does not require license under Cuban Assets Control Regulations). In Dames & Moore, the Court found that the portion of the president’s order suspending lawsuits exceeded the authority granted by IEEPA to regulate “transactions,” 453 U.S. at 675, but it sustained the suspension as within the president’s constitutional authority in light of Congress’s long acquiescence in similar exercises of executive power, id. at 686.

35 American Airways Charters, Inc. v. Regan, 746 F.2d 865 (D.C. Cir. 1984). The court’s opinion was written by Judge Ruth Bader Ginsburg. Judge George E. MacKinnon dissented.

36 50 App. U.S.C. §5(b).

37 746 F.2d at 872 (“It is doubtful whether any of the exclusively economic purposes legitimately served by the Act would be advanced by upholding OFAC’s novel position.”).

38 Id. at 867.

39 Id. at 872-73. The court also seemed troubled that OFAC had never before included provision of legal services within the licensing requirement, id. at 868 n.3, 874 n. 17, and that the requirement had the “Catch-22” effect, as the concurring judge emphasized, of requiring a license before a company could get a lawyer to represent it, among other things, in licensing proceedings before OFAC, id. at 876 (Greene, J., concurring). One of the categories of legal services now regularly included among the categories of authorized unlicensed legal services in OFAC’s regulations implementing blocking orders is “ [r]epresentation of persons before any federal or state agency with respect to the imposition, administration, or enforcement of U.S. sanctions against such persons.” 31 C.F.R.§515.512(a)(4) (2003) (Cuban Assets Control Regulations); see, e.g., 31 C.F.R. §560.525(a) (4) (2003) (Iranian Transactions Regulations).

The D.C. Circuit did not appear to be troubled by the licensing requirement for receipt of fees. In the domestic criminal context, the Supreme Court held a few years later that the Constitution permits the government to seize funds that a criminal defendant would have used to pay his lawyer if those funds were forfeitable as proceeds of crime. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623-35 (1989); United States v. Monsanto, 491 U.S. 600, 615-16 (1989). In the Court’s view, depriving defendants of those funds did not deprive them of the right to counsel of their own choice protected by the Sixth and possibly Fifth Amendments; the funds belonged to the government, not the defendants. “A defendant,” the Court said, “has no Sixth Amendment right to spend another person’s money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice.” Caplin & Drysdale, 491 U.S. at 626.

OFAC’s intrusion on defendants’ right to counsel of their own choosing—by imposing a licensing requirement upon the receipt of fees for legal services—is both less and potentially more severe than the intrusion upheld in Caplin & Drysdale and in Monsanto. It is fundamentally less severe because the licensing requirement need not deprive defendants of funds to pay their chosen attorneys. It simply mandates government permission before the funds may be so used. Nevertheless, the licensing requirement is more severe in that it applies to all of the defendants’ property (in the United States or possessed or controlled by a U.S. person) and not just to the property that the government can show is connected to the defendant’s alleged criminal activity.

40 Cf., e.g., Regan v. Wald, 468 U.S. 222, 225, 242-44 (1984) (noting “broad authority” given to the president by TWEA and upholding travel restriction as valid exercise of authority under §5 (b)); United States v. Hummer, 221 F.3d 1298, 1310 n.8 (11th Cir. 2003) (describing TWEA’s “original goal” as “promoting national security”). Even if one understands TWEA as limited to empowering the president to inflict economic damage on enemies, a ban on acquiring legal representation may in some circumstances have the effect of causing financial harm.

41 See United States v. Balsys, 524 U.S. 666, 671-700 (1998) (criminal prosecution by a foreign government does not constitute a “criminal case” within the meaning of the Fifth Amendment’s protection against self-incrimination; Sixth Amendment guarantees “clearly appl[y] only to domestic criminal proceedings”).

42 The Supreme Court first recognized a right of association as implicit in the First Amendment in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).

43 In re Primus, 436 U.S. 412, 428 (1978); see NAACP v. Button, 371 U.S. 415, 444 (1963).

44 See Primus, 436 U.S. at 424-25; Button, 371 U.S. at 444.

45 See, e.g., Schware v. Bd. of Bar Examiners, 353 U.S. 232, 238-39 (1957).

46 See, e.g., Holy Land Found, for Relief & Dev. v. Ashcroft, 333 F.3d 156, 163-64 (D.C. Cir. 2003).

47 See 767 Third Ave. Assocs. v. United States, 48 F.3d 1575, 1581-83 (2d Cir. 1995); Chang v. United States, 859 F.2d 893, 896 (Fed. Cir. 1988).

48 438 U.S. 104(1978).

49 See, e.g., Paradissiotis v. United States, 304 F.3d 1271, 1276 (Fed. Cir. 2002); 767 Third Ave. Assocs., 48 F.3d at 1580–81; Chang, 859 F.2d at 896–97.

50 The statutes of the International Criminal Tribunal for Rwanda (Article 204 (d)), the Special Court for Sierra Leone (Article 14(4)(d)), and die International Criminal Court (Article 67(l)(d)) contain similar guarantees. For example, Article 204(d) of die ICTR Statute states that the defendant has die right “to defend himself or herself . . . through legal assistance of his or her own choosing... and to have legal assistance assigned to him or her, in any case where the interest of justice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it.” The language in all three statutes, as well as drat in die ICTY Statute, borrows from that in Article 14(3)(d) of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171.