Palestine Information Office v. Shultz, 87-5398

• Decision Date: 05 August 1988
• Docket Number: No. 87-5398,87-5398
• Parties: PALESTINE INFORMATION OFFICE, et al., Appellants v. George P. SHULTZ, Secretary of State, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 932

853 F.2d 932

272 U.S.App.D.C. 1

PALESTINE INFORMATION OFFICE, et al., Appellants v. George P. SHULTZ, Secretary of State, et al.

No. 87-5398.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 23, 1988.

Decided Aug. 5, 1988.

Steven R. Shapiro, with whom John A. Powell, Helen Hershkoff, Arthur B. Spitzer Elizabeth Symonds, and Hope G. Nakamura, Washington, D.C., were on the brief, for appellants.

Douglas Letter, Atty., Dept. of Justice, with whom, Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., ^* and Patrick M. Norton, Asst. Legal Advisor for Near Eastern and South Asian Affairs, Dept. of State, were on the brief for appellees. Robert E. Kopp, Atty., Dept. of Justice, Washington, D.C., also entered an appearance, for appellee.

Leonard B. Boudin, with whom Peter Weiss, New York City, was on the brief amici curiae, the American Arab Anti-Discrimination Committee, et al., urging reversal.

Gary S. Marx, Roseland, N.J., was on the brief for amici curiae, the American Jewish Congress, et al., urging affirmance.

Daniel J. Popeo and Paul D. Kamenar, Washington, D.C., were on the brief for amici curiae, Congressman Jack Kemp, et al. urging affirmance.

Meyer Eisenberg, Washington, D.C., was on the brief for amicus curiae, the Anti-Defamation League of B'nai B'rith, urging affirmance.

Before MIKVA, STARR and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

Concurring opinion filed by Circuit Judge SILBERMAN.

MIKVA, Circuit Judge:

The State Department late last year ordered the closing of the Palestine Information Office ("PIO") in Washington, D.C. It had found that the PIO operated as a foreign mission of the Palestine Liberation Organization ("PLO") and that the national interest in curbing international terrorism required its closure. Appellants challenged the order on constitutional and statutory grounds in the U.S. District Court. That court upheld the State Department's action as within its discretion under the Foreign Missions Act, 22 U.S.C. Secs. 4301 et seq., and the Constitution. Palestine Information Office v. Shultz, 674 F.Supp. 910 (D.D.C.1987). We affirm.

The executive branch acted in this case in the precise realm in which the Constitution accords it greatest power. The authority of the executive branch, always great in the foreign policy field, is at its apex when it acts, as here, pursuant to an express congressional authorization. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 871, 96 L.Ed. 1153 (1952) (Jackson, J., concurring). Our review is confined to determining that the Secretary acted in conformity with the provisions of the Foreign Missions Act, and that appellants' constitutional rights were not infringed. The wisdom of the government's decision to close the PIO is not at issue, despite appellants' efforts to couch the case in those terms. Such policy questions are firmly lodged in the political branches of government. See Regan v. Wald, 468 U.S. 222, 242, 104 S.Ct. 3026, 3037, 82 L.Ed.2d 171 (1984).

We are not cavalier about appellants' constitutional challenges and are mindful of the important free speech, free association, and due process rights implicated by the Secretary's order. This order did not, however, infringe upon any of those constitutionally protected rights. Appellants are as free today as they were before the order to express whatever ideas they wish and to associate with whichever individuals they wish. They are not free, however, to set up an office that functions as a foreign mission for the PLO when the State Department finds that the national interest requires otherwise. Despite appellants' various arguments, we can find no part of the Constitution that guarantees them the right to do so. The incidental impact on speech caused by the conduct limitations of the order at issue is outweighed by the strong governmental interests behind the order. See United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

The Foreign Missions Act operates in that subtle realm in which foreign policy matters brush up against rights of free speech and free expression. It is possible to envision truly difficult cases under the Act in which the State Department might designate as a foreign mission a domestic organization that arguably did not belong in that category. This is not, however, such a case, and the PIO is not such an organization. The PIO was funded almost entirely by the PLO, worked for no organization other than the PLO, and its director, Hasan Abdel Rahman, met regularly with the PLO to discuss its representation. The State Department had strong reasons for identifying it as a foreign mission and, having done so, for concluding that the nation's foreign policy interests required it to order the PIO to close. We have no basis for upsetting that determination.

I. BACKGROUND

The PIO operated in Washington, D.C. from 1978 until its closing last December. During that time, it registered annually with the Department of Justice as an agent of the PLO. The PIO described its purpose and function in its last filing under the Foreign Agents Registration Act ("FARA"), 22 U.S.C. Secs. 611 et seq., as:

Public appearances and meetings with [the] American public in the hopes of promoting better Palestinian-American understanding. We seek to bring the views of the Palestinian people on their problems in the Middle East to the attention of the American people ...

Joint Appendix ("J.A.") at 23.

The PIO was, until it shut its doors, staffed by its director, Rahman, and eight other full- or part-time staff. All of the PIO staff were either United States citizens or resident aliens. Rahman stated that he did not "seek or receive regular instructions from the PLO on how to perform [his] job or run the office." J.A. at 24. But he added that he did "discuss issues of current importance in the Mideast with the PLO on a periodic basis." Id.

The PIO's 1987 budget was approximately $350,000. Rahman's salary was paid by the League of Arab States, of which the PLO is a member. The rest of the PIO's expenses were paid by the Palestine National Fund, a group that has been described by the appellants as the finance department of the PLO. Palestine Information Office, 674 F.Supp. at 914. The PIO works for no one other than the PLO. Id.

On September 15, 1987, the State Department, invoking its powers under the Foreign Missions Act, sent a letter to the PIO informing it that the State Department had designated it a foreign mission pursuant to 22 U.S.C. Sec. 4302(a)(4)(B) and that it would have to cease all operations within 30 days. The State Department letter included a copy of the official State Department Designation, identifying the PIO as a "foreign mission." See Public Notice, 52 Fed.Reg. 37,035 (Oct. 2, 1987).

The Designation stated that the determination was based on the following grounds: (1) that the PIO was an "entity" within the meaning of the Act; (2) that the PIO was "substantially owned and/or effectively operated by the PLO"; (3) that its FARA registration "indicate[d] that it engage[d] in political activity and political propaganda on behalf of the PLO"; (4) that the PIO conducted its work on behalf of the PLO, which has received privileges and immunities under American law by virtue of its status as an observer at the United Nations; (5) that the PLO engaged in "some aspect of the conduct of international affairs" as evidenced by its membership in the League of Arab States and its observer status at the United Nations; and (6) that it was involved in "other activities," namely political activity and political propaganda, on behalf of the PLO. Id.

The State Department then stated in its Determination and Designation of Benefits Concerning Palestine Information Office that it had "determine[d] that it is reasonably necessary to protect the interests of the United States to require that the Palestine Information Office cease operation as a mission representing the Palestine Liberation Organization." Id. It stated that the decision to order the office to close was based on "U.S. concern over terrorism committed and supported by individuals and organizations affiliated with the PLO, and as an expression of our overall policy condemning terrorism." Id. The order directed the PIO to divest itself of its real property as provided for by Sec. 4305(b)(3) of the Act. The notice sent to the PIO stated that the order was not intended to interfere with "the constitutionally protected rights of U.S. citizens and permanent residents who are now associated with the Palestine Information Office." J.A. at 77.

The PIO was initially given 30 days in which to close, but the State Department extended the time period to comply with the order until December 1, 1987. The PIO and Rahman filed suit in district court on November 13, 1987 challenging the closing of the office. They contended in their suit that (1) the Foreign Missions Act does not authorize designation of the PIO as a foreign mission; and (2) that the Act as applied violates their first amendment free speech and free association rights and, because of its alleged vagueness and the lack of a preclosing hearing, their fifth amendment due process rights. Appellants sought an injunction against the closing of the office.

The district court ruled for the government on its motion for summary judgment, rejecting both appellants' statutory and constitutional claims. It held that the State Department had not abused the broad discretion accorded it by Congress under the Foreign Missions Act when it declared the PIO to be a foreign mission and ordered it closed. Palestine Information Office, 674 F.Supp. at 916-18. The court also rejected appellants' first amendment claim, finding that there was no burden placed on protected expression as a result of the designation, and their due process claims. Id. at 918-919. The...