National Council of Res. of Iran v. Dept. of State

• Decision Date: 09 July 2004
• Docket Number: No. 01-1480.,01-1480.
• Citation: 373 F.3d 152
• Parties: NATIONAL COUNCIL OF RESISTANCE OF IRAN, Petitioner, v. DEPARTMENT OF STATE and Colin L. Powell, Secretary of State, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

373 F.3d 152

NATIONAL COUNCIL OF RESISTANCE OF IRAN, Petitioner, v. DEPARTMENT OF STATE and Colin L. Powell, Secretary of State, Respondents.

No. 01-1480.

United States Court of Appeals, District of Columbia Circuit.

Argued April 2, 2004.

Decided July 9, 2004.

On Petition for Review of Orders of the Department of State.

Paul F. Enzinna argued the cause and filed the briefs for petitioner. Martin D. Minsker entered an appearance.

Douglas Letter, Litigation Counsel, U.S. Department of Justice, argued the cause for respondents. With him on the brief was Peter D. Keisler, Assistant Attorney General.

Before: HENDERSON, GARLAND, and ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBERTS.

ROBERTS, Circuit Judge:

This is the fourth in a series of related cases concerning the biennial designations by the Secretary of State of the Mojahedin-e Khalq Organization (MEK)¹ and its aliases as a foreign terrorist organization (FTO). See People's Mojahedin Org. of Iran v. Dep't of State, 182 F.3d 17 (D.C.Cir.1999) (PMOI I); National Council of Resistance of Iran v. Dep't of State, 251 F.3d 192 (D.C.Cir.2001) (NCRI); People's Mojahedin Org. of Iran v. Dep't of State, 327 F.3d 1238 (D.C.Cir.2003) (PMOI II); see generally 8 U.S.C. § 1189. In 1999, and again in 2001, the National Council of Resistance of Iran (NCRI) was determined by the Secretary of State to be an alias of MEK and was accordingly also designated an FTO. See 1999 Designation, 64 Fed.Reg. at 55,112; 2001 Redesignation, 66 Fed.Reg. at 51,089. In May 2003, after a remand to cure certain due process deficiencies, see NCRI, 251 F.3d at 208-09, the Secretary decided to leave in place the 1999 and 2001 designations of NCRI as an FTO. NCRI now again petitions for review. After reviewing NCRI's arguments, the entirety of the administrative record, and certain classified materials appended to that record, we conclude that the Secretary's latest designation complied with the governing statute and all constitutional requirements. We therefore deny the petition for review.

I.

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) empowers the Secretary of State to designate an entity as an FTO whenever the Secretary determines that (1) the entity is foreign; (2) it engages in terrorist activity; and (3) the terrorist activity threatens the security of the United States or its nationals. 8 U.S.C. § 1189(a)(1). A designation as an FTO persists for two years, after which the Secretary may redesignate the entity as an FTO for a succeeding two-year period upon finding that the statutory circumstances still exist. Id. § 1189(a)(4)(B).

An FTO designation visits serious consequences on the affected organization: The Secretary of the Treasury may require financial institutions to freeze any assets of the FTO, id. § 1189(a)(2)(C); the members and representatives of the FTO become ineligible to enter the United States, id. § 1182(a)(3)(B)(i)(IV), (V); and anyone who knowingly provides "material support or resources" to the FTO — including any donation of money — may be prosecuted and imprisoned for up to fifteen years, 18 U.S.C. § 2339B(a)(1). The manifest purpose of these provisions is to deny terrorist organizations support — financial or otherwise — in and from the United States. See H.R. REP. NO. 104-383, at 43-45 (1995) (House Report on AEDPA's primary predecessor bill).

Despite these serious consequences of designation, the governing statute affords suspect entities only "truncated" participation in the administrative process leading to the designation and "quite limited" judicial review after the fact. NCRI, 251 F.3d at 196. As we noted in PMOI I, "unlike the run-of-the-mill administrative proceeding," "there is [under AEDPA] no adversary hearing, no presentation of what courts and agencies think of as evidence, [and] no advance notice to the entity affected by the Secretary's internal deliberations." 182 F.3d at 19. Once the Secretary has designated an entity an FTO, the statute directs us to "hold unlawful and set aside a designation" only if we find it 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 [ex parte and in camera], or

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

8 U.S.C. § 1189(b)(3). Although the statute permits this court to base its review either "solely upon the administrative record" "taken as a whole," or as supplemented by any classified information submitted by the Secretary, the Act makes no provision for the disclosure of that classified material to the designated entity. See id. § 1189(b)(2), (3)(D); see generally 28 C.F.R. pt. 17 (governing access to classified national security information).

In 1997, and every two years since, the Secretary has designated MEK an FTO. See 1997 Designation, 62 Fed.Reg. at 52,650; 1999 Designation, 64 Fed.Reg. at 55,112; 2001 Redesignation, 66 Fed.Reg. at 51,089; 2003 Redesignation, 68 Fed.Reg. at 56,861. Starting in 1999, the Secretary added NCRI to the list of designated FTOs, having concluded that NCRI was an alias of MEK. See 1999 Designation, 64 Fed.Reg. at 55,112 ("I hereby designate ... the following organization as a foreign terrorist organization: ... Mujahedin-e Khalq Organization ... also known as National Council of Resistance, also known as NCR."). NCRI now, for the second time, seeks review of that designation. In NCRI's previous challenge — brought jointly with MEK — we concluded that both the 1999 designation of MEK as an FTO and the designation of NCRI as an alias of MEK satisfied the requirements of the statute. Specifically concerning NCRI, we held — based on the record then presented to us by the Secretary — that the Secretary's conclusion that NCRI was an alias of MEK "does not lack substantial support and ... is neither arbitrary, capricious, nor otherwise not in accordance with law." NCRI, 251 F.3d at 199.

As a constitutional matter, however, we determined that the procedures afforded by the statute and employed by the Secretary in arriving at those designations violated both organizations' due process rights. See id. at 208-09. We did not vacate the Secretary's designation as to either MEK or NCRI, but remanded to the Secretary with instructions that each entity be afforded the opportunity to: (1) respond to any part of the Secretary's administrative record that is not classified material; (2) file evidence on its own behalf; and (3) be meaningfully heard by the Secretary. Id. at 210.

Both MEK and NCRI availed themselves of these opportunities. NCRI submitted voluminous materials that purported to demonstrate that it was sufficiently independent of MEK that it could not be considered an alias of that organization. On September 24, 2001, the State Department informed MEK and NCRI that the Secretary had decided to leave the 1999 designation of MEK in place but that "no such determination regarding the NCRI as an alias of the MEK is possible at this time." Letter of Ambassador Francis X. Taylor, Coordinator for Counterterrorism, U.S. Dep't of State, at 2 (Sept. 24, 2001). This was shortly followed, on October 5, 2001, by the Secretary's redesignation of both MEK as an FTO and NCRI as an alias of MEK. See 2001 Redesignation, 66 Fed.Reg. at 51,089. At that time, the State Department assured NCRI that although "the present situation... requires continued designation of [NCRI] as an alias of MEK for now," upon the completion of review of NCRI's submissions, "the Secretary will make a de novo determination in light of the entire record, including the material you have submitted." Letter of Ambassador Francis X. Taylor, Coordinator for Counterterrorism, U.S. Dep't of State, at 1 (Oct. 5, 2001).

Nearly a year later, the State Department provided for NCRI's review additional materials obtained by the FBI in the course of "its long-running investigation of the MEK and NCRI." Letter of Ambassador Francis X. Taylor, Coordinator for Counterterrorism, U.S. Dep't of State, at 1 (Sept. 4, 2002). Within two months, NCRI submitted its response. See Letter of Paul F. Enzinna, Esq. (Nov. 1, 2002). In May 2003, the State Department completed its review process and, on May 24, the Secretary decided to leave in place the 1999 and 2001 "designations of the National Council of Resistance (NCR) and the National Council of Resistance of Iran (NCRI) as foreign terrorist organization aliases of the Mujahedin-e Khalq (MEK)." Action Mem. from William Pope & William H. Taft, IV to the Secretary of State, at 3 (May 22, 2003) (Action Mem.). NCRI now petitions for review of this latest decision.

II.

NCRI's primary argument is that the Secretary's conclusion that NCRI is an alias of MEK lacks substantial support in the administrative record. NCRI insists that it is an umbrella organization of Iranian dissident persons and groups of which MEK is only a single member, no more powerful than any other. In addressing this contention, we begin with our earlier holding in this action. In NCRI, we concluded — based on the record then presented to us — that the Secretary's designation of NCRI as an alias of MEK "does not lack substantial support and ... is neither arbitrary, capricious, nor otherwise not in accordance with law." 251 F.3d at 199. Although that decision is obviously not determinative of the question before us today — we are now reviewing a record that has since been supplemented both by the Government and NCRI — its holding must nevertheless inform our decision here. Logically, NCRI's challenge can succeed only if the new record materials establish its independence from MEK so that we can no longer affirm that "the...