Nat'l Council of Resistance v. Dept. of State

• Decision Date: 08 June 2001
• Docket Number: No. 99-1438,99-1439,99-1438
• Citation: Nat'l Council of Resistance v. Dept. of State, 251 F.3d 192 (D.C. Cir. 2001)
• Parties: (D.C. Cir. 2001) National Council of Resistance of Iran and National Council of Resistance of Iran, U.S. Representative Office, Petitioners v. Department of State and Madeleine K. Albright, Secretary of State, Respondents
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 192

251 F.3d 192 (D.C. Cir. 2001)

National Council of Resistance of Iran and National Council of Resistance of Iran, U.S. Representative Office, Petitioners v. Department of State and Madeleine K. Albright, Secretary of State, Respondents

No. 99-1438, 99-1439

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2000

Decided June 8, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

On Petitions for Review of an Order of the Secretary of State

Martin D. Minsker argued the cause for petitioners National Council of Resistance of Iran and National Council of Resistance of Iran, U.S. Representative Office. With him on the briefs were Scott L. Nelson, Ellen Fels Berkman and Jody Manier Kris.

Jacob A. Stein argued the cause for petitioner People's Mojahedin Organization of Iran. With him on the briefs were George A. Fisher and Ronald G. Precup.

Douglas N. Letter, Litigation Counsel, U.S. Department of Justice, argued the cause for respondents. With him on the briefs were David W. Ogden, Acting Assistant Attorney General, H. Thomas Byron, III, Attorney, and Wilma A. Lewis, U.S. Attorney at the time the briefs were filed.

Before: Edwards, Chief Judge, Sentelle and Henderson, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge:

Two organizations, the National Council of Resistance of Iran and the People's Mojahedin of Iran, petition for review of the Secretary's designation of the two as constituting a "foreign terrorist organization" under the Anti-Terrorism and Effective Death Penalty Act of 1996, raising both statutory and constitutional arguments. While we determine that the designation was in compliance with the statute, we further determine that the designation does violate the due process rights of the petitioners under the Fifth Amendment, and we therefore remand the case for further proceedings consistent with this opinion.

The Statute

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("Anti-Terrorism Act" or "AEDPA"), 8 U.S.C. 1189, the Secretary of State is empowered to designate an entity as a "foreign terrorist organization." Id. See generally People's Mojahedin Org. of Iran v. Dep't of State, 182 F.3d 17 (D.C. Cir. 1999). The consequences of that designation are dire. The designation by the Secretary results in blocking any funds which the organization has on deposit with any financial institution in the United States. 18 U.S.C. 2339B(a)(2). Representatives and certain members of the organization are barred from entry into the United States. 8 U.S.C. 1182(a)(3)(B)(i)(IV & V). Perhaps most importantly, all persons within or subject to jurisdiction of the United States are forbidden from "knowingly providing material support or resources" to the organization. 18 U.S.C. 2339B(a)(1).

Despite the seriousness of the consequences of the determination, the administrative process by which the Secretary makes it is a truncated one. In part, the AEDPA imposes the Secretary's duties in "APA-like language." People's Mojahedin, 182 F.3d at 22. The Secretary compiles an "administrative record" and based upon that record makes "findings." Cf. Administrative Procedure Act, 5 U.S.C. 557(c). If the Secretary makes the critical findings that "an entity is a foreign organization engaging in terrorist activities that threaten the national security of the United States," People's Mojahedin, 182 F.3d at 19 (construing 8 U.S.C. 1189), that entity then suffers the consequences listed above.

Following the administrative designation there is judicial review. 8 U.S.C. 1189(b). While that statutory procedure, so far as it goes, sounds like the familiar procedure normally employed by the Congress to afford due process in administrative proceedings, the similarity to process afforded in other administrative proceedings ends there. As we have observed before, this "statute ... is unique, procedurally and substantively." People's Mojahedin, 182 F.3d at 19. The unique feature of this statutory procedure is the dearth of procedural participation and protection afforded the designated entity. At no point in the proceedings establishing the administrative record is the alleged terrorist organization afforded notice of the materials used against it, or a right to comment on such materials or the developing administrative record. Nothing in the statute forbids the use of "third hand accounts, press stories, material on the Internet or other hearsay regarding the organization's activities...." Id. at 19. The Secretary may base the findings on classified material, to which the organization has no access at any point during or after the proceeding to designate it as terrorist.

The entity may obtain judicial review by application to this court not later than thirty days after the publication of the designation in the Federal Register. 8 U.S.C. 1189(b)(1). But that review is quite limited. Review is based solely upon the administrative record. Granted this is not in itself an unusual limitation, but one common to many administrative reviews. However, under the AEDPA the aggrieved party has had no opportunity to either add to or comment on the contents of that administrative record; and the record can, and in our experience generally does, encompass "classified information used in making the designation," as to which the alleged terrorist organization never has any access, and which the statute expressly provides the government may submit to the court ex parte and in camera. Id. 1189(b)(2).

The scope of judicial review is limited as well. We are to hold unlawful and set aside designations that we find to be

(A) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;

(D) lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court under paragraph (2), or

(E) not in accord with the procedures required by law.

Id. 1189(b)(3). Again, this limited scope is reminiscent of other administrative review, but again, it has the unique feature that the affected entity is unable to access, comment on, or contest the critical material. Thus the entity does not have the benefit of meaningful adversary proceedings on any of the statutory grounds, other than procedural shortfalls so obvious a Secretary of State is not likely to commit them.

Designations under the statute persist for two years and are renewable for additional two-year periods by the same procedure as the original designation. Id. 1189(a)(4)(B). In the decisions now under review, we consider two petitions under 1189(b).

The Petitions

By notice of October 8, 1999, the Secretary of State, inter alia, redesignated petitioner People's Mojahedin of Iran ("PMOI") as a foreign terrorist organization pursuant to 8 U.S.C. 1189. 64 Fed. Reg. 55,112 (1999). The two-year redesignation of the PMOI extended the October 8, 1997 designation of the same group as a terrorist organization. This court rejected a petition for review of the 1997 designation in People's Mojahedin Org. of Iran v. Dep't of State, 182 F.3d 17 (D.C. Cir. 1999). In the 1999 designation, thenSecretary Madeleine Albright for the first time included the designation of the second petitioner before us, the National Council of Resistance of Iran ("NCRI"). The Secretary found that the NCRI is an alter ego or alias of the PMOI.¹ Both petitioners argue that the Secretary's designation deprives them of constitutionally protected rights without due process of law. NCRI argues additionally that the Secretary had no statutory authority to find that it was an alias or alter ego of PMOI. For the reasons set forth below, we agree with the due process argument, while rejecting the statutory claim.

Analysis

A. The Alias Finding

1. Record Support

NCRI launches a two-pronged attack on the Secretary's designation of it as an alias for the PMOI. Its first argument is a three-step analysis forwarding the proposition that "the Secretary's alias designation of NCRI has no support in the record." Brief of NCRI at 6. The first step of its reasoning is the generally uncontroversial proposition that "Article III [of the Constitution] forbids courts from rubberstamping Executive decisions." Id. at 7. In support of this premise of its syllogism, counsel reminds us that the courts have rejected interpretations of statutes that "cast Article III judges in the role of petty functionaries ... required to enter as a court judgment an executive officer's decision but stripped of capacity to evaluate independently whether the executive decision is correct." Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 426 (1995). While there will be unreviewable Executive decisions, and legitimate differences of opinion as to which decisions fall within the rubberstamp category condemned in Gutierrez, and which are simply unreviewable decisions, see generally id. at 448-49 (Souter, J., dissenting), we can accept the Council's general proposition for purposes of this discussion and move to the further steps of its three-part analysis.

In applying the rubberstamping premise to the present designation of the NCRI as an alias of the PMOI, the Council draws from the Act and from our application of it in People's Mojahedin the principle that designations under the Act must survive a review in which the court determines that the designation has "substantial support in the administrative record taken as a whole or in classified information submitted to the court," 8 U.S.C. 1189(b)(3)(D), and is not "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." Id. 1189(b)(3)(A).² Again, the basic proposition, being drawn from the words of the statute, may be assumed. Although...