Palestine Information Office v. Shultz

• Citation: 674 F. Supp. 910
• Decision Date: 03 December 1987
• Docket Number: Civ. A. No. 87-3085.
• Parties: PALESTINE INFORMATION OFFICE, et al., Plaintiffs, v. George P. SHULTZ, et al., Defendants.
• Court: U.S. District Court — District of Columbia

674 F. Supp. 910

PALESTINE INFORMATION OFFICE, et al., Plaintiffs, v. George P. SHULTZ, et al., Defendants.

Civ. A. No. 87-3085.

United States District Court, District of Columbia.

December 2, 1987.

As Corrected December 2 and December 3, 1987.

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Steven R. Shapiro, John A. Powell, Helen Hershkoff, New York City, Arthur B. Spitzer, Elizabeth Symonds, Hope Nakamura, American Civ. Liberties Union Foundation, Washington, D.C., for plaintiffs.

Sharon L. Reich, David J. Anderson, Vincent M. Garvey, Dept. of Justice, and on brief, Richard K. Willard, Asst. Atty. Gen., and Joseph E. di Genova, U.S. Atty., Washington, D.C., for defendants.

Daniel J. Popeo, Paul D. Kamenar, Washington, D.C., for amici curiae representatives Jack Kemp, Tom Bliley, Dan Burton, D.E. "Buz" Lukens, Raymond J. McGrath, Elton Gallegly, Jack Fields, George C. Wortley, Tom Lewis, Jack Davis, Joe Skeen, Bill Schuette, Don Sundquist; Senators Charles E. Grassley, Alphonse D'Amato, Jesse Helms; Richard L. Stethem, Patricia Stethem, Sheryl Stethem, and the Washington Legal Foundation.

Gary S. Marx, Evan J. Krame, Phil Baum and Marc D. Stern, Boston, Mass., for amicus curiae American Jewish Congress.

                                                 TABLE OF CONTENTS
                                                                                                   Page
                      I.     INTRODUCTION                                                            914
                      II.    FACTUAL BACKGROUND OF THE CASE                                          914
                      III.   POSTURE OF THE CASE                                                     915
                      IV.    ISSUES PRESENTED                                                        916
                             A.  The Secretary of State's Determination that the PIO Constituted
                                 a "Foreign Mission", "Mission," or "Entity" of the PLO Was
                                 Proper Under the Foreign Missions Act                               916
                                 1.  The Secretary of State Is Afforded Wide Latitude in the
                                     Conduct of Foreign Affairs and the Plaintiffs Have Failed
                                     to Carry Their Heavy Burden of Proof in Seeking Injunctive
                                     Relief in this Case                                             916
                                 2.  The PLO Is a "Political Entity" and the PIO Is an "Entity"
                                     for Purposes of Designating the PIO a "Foreign Mission"
                                     Pursuant to 22 U.S.C. § 4302(a)(4)(B)                      916
                                 3.  The PIO Is Engaged in "Other Activities" on Behalf of the
                                     PLO within the Meaning of 22 U.S.C. § 4302(a)(4)           917
                             B.  Having Found that the Secretary's Determination that the PIO
                                 Is a "Foreign Mission" Representing the PIO Was Proper, the
                

                                 Court Concludes that the Plaintiffs' Constitutional Claims, on
                                 the Facts Here, Do Not Rise to the Level Necessary to
                                 Implicate First Amendment Concerns                                  918
                             C.  The Secretary's Decision to Close the PIO as a "Foreign
                                 Mission" of the PLO Does Not Violate Plaintiffs' Due Process
                                 Rights                                                              919
                        V.   CONCLUSION                                                              919
                

CHARLES R. RICHEY, District Judge.

I. INTRODUCTION

This matter comes before the Court as a result of a decision by the Secretary of State to order the closing of the Palestine Information Office ("PIO") of the Palestine Liberation Organization ("PLO") in Washington, D.C., pursuant to the Foreign Missions Act ("FMA"), 22 U.S.C. §§ 4301, et seq., because it is a "foreign mission." It is undisputed that the PIO engages in political activity and political propaganda in the United States as an agent of the PLO. See Exhibit 1 to Rahman Declaration. For foreign policy reasons, the Secretary of State has determined that the PLO is not welcome in the United States and that the PIO must cease operations as an "entity."

At the outset, the Court makes clear that it is not passing on the wisdom of such a foreign policy decision because "matters relating `to the conduct of foreign relations ... are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.'" Regan v. Wald, 468 U.S. 222, 242, 104 S.Ct. 3026, 3038, 82 L.Ed.2d 171 (1984), quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952). The question for the Court to decide is whether the Secretary of State acted lawfully in determining, pursuant to the Foreign Missions Act, that the PIO is a foreign mission of the PLO. If the Secretary of State did act constitutionally and lawfully in pursuit of the government's legitimate interest in conducting foreign policy, his action must be upheld.

For the reasons set forth in this Opinion, the Court finds that the Secretary of State acted lawfully in determining that the PIO is a "foreign mission" of the PLO. Similarly, the Court finds that the Secretary's action was fully in consonance with the Constitution. As Chief Justice Warren held in United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968), when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest can justify regulating the nonspeech conduct. This is precisely what has here occurred.

II. FACTUAL BACKGROUND OF THE CASE

The PIO is a registered agent of the PLO under the Foreign Agents Registration Act ("FARA"), 22 U.S.C. §§ 611-621. Complaint ¶ 12; see also Exhibit 1 (Plaintiffs' FARA statement) to Rahman Declaration. So is the PIO's director, a naturalized U.S. citizen, Hasan Abdel Rahman. Complaint ¶ 12; Rahman Declaration ¶ 6; Exhibit 1 to Rahman Declaration. The PIO has been operating since 1978. Rahman Declaration ¶ 2. The annual budget of the PIO is approximately $350,000. Rahman Declaration ¶ 8. This budget is largely paid for by the Palestine National Fund, which plaintiffs identified to the Court at a status conference held November 25, 1987 as the finance department of the PLO. Rahman Declaration ¶ 8. According to its FARA statement, the PIO operates exclusively on behalf of the PLO. See Exhibit 1 to Rahman Declaration.

As late as May 13, 1987, the State Department was of the view that the PIO, identified at the time as the "PLO Information Office," "neither reflects nor requires the approval of the United States Government." Letter from James A. McVerry, Political Officer in the Office of Jordan, Lebanon and Syrian Affairs, Department of State, to Robert Clarke, Director of Government Affairs, National Association of Arab-Americans; Exhibit 2 to Rahman Declaration. This letter went on to say that "so long as that office regularly files reports with the Department of Justice on its activities as an agent of a foreign organization, complies with all other relevant U.S. laws, and is staffed by Americans or legal resident aliens, it is entitled to operate under the protection provided by the First Amendment of the Constitution." Id. (emphasis added). This letter was written with obvious reference to the FARA, not the FMA here involved. Nevertheless, the FMA is another relevant U.S. law with which the PIO must comply, and the State Department said nothing less in May, 1987.

Approximately four months later, the PIO received a letter from Ambassador James E. Nolan, Jr., Director of the Office of Foreign Missions at the Department of State, informing that Deputy Secretary of State John C. Whitehead had designated the PIO a "foreign mission" of the PLO pursuant to 22 U.S.C. § 4302(a)(4)(B).¹ The Deputy Secretary determined that the PIO met the criteria of a "foreign mission" as defined in the Foreign Missions Act. In addition, and acting pursuant to a delegation of authority from the President under Article II of the Constitution to conduct this country's foreign affairs to the Secretary of State, the PIO was ordered to cease operating as a foreign mission of the PLO. See Letter from Ambassador James E. Nolan, Jr. to the PIO dated September 15, 1987; Exhibit A to Plaintiffs' Complaint. The Department of State further determined that the PIO "(1) must divest itself of all real property under 22 U.S.C. § 4305(b); (2) must acquire and dispose of all benefits as defined by 22 U.S.C. § 4302(a) and as designated by the Department, through the Office of Foreign Missions; and (3) must discontinue use and dispose of all such benefits." Id.

The designation of the PIO as a "foreign mission" of the PLO was published in the Federal Register. 52 Fed.Reg. 37035 (October 2, 1987). See Exhibit B to Plaintiffs' Complaint. The PIO was at first given 30 days to cease operating as a foreign mission to the PLO, but was subsequently given until December 1, 1987 to comply with the State Department's order. Pursuant to this Court's request during a status conference held November 25, 1987, the Department of State agreed to extend the order until 11:59 p.m., December 3, 1987 in light of the fact that this matter had to be reassigned to this Court at the last minute.

III. POSTURE OF THE CASE

On November 13, 1987, plaintiffs filed a complaint seeking declaratory and injunctive relief and at the same time filed a motion for preliminary injunction. Plaintiffs' allege several infirmities regarding the Secretary of State's designation of the PIO as a "foreign mission," "mission," or "entity" of the PLO and decision to order the PIO to cease operating as a "foreign mission" of the PLO. Specifically, the PIO contends that the defendants have exceeded their statutory authority under or acted contrary to the Foreign Missions Act, that the order violates plaintiffs' rights to freedom of speech and association, that the...