People's Mojahedin v. US Dept. of State & Albright

• Decision Date: 25 June 1999
• Docket Number: N,No. 97-1648,97-1648
• Citation: 182 F.3d 17
• Parties: (D.C. Cir. 1999) People's Mojahedin Organization of Iran, Petitioner v. United States Department of State and Madeleine K. Albright, Secretary of State, Respondents Liberation Tigers of Tamil Eelam, Petitioner v. United States Department of State, Respondent o. 97-1670
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 17

182 F.3d 17 (D.C. Cir. 1999)

People's Mojahedin Organization of Iran, Petitioner v. United States Department of State and Madeleine K. Albright, Secretary of State, Respondents Liberation Tigers of Tamil Eelam, Petitioner v. United States Department of State, Respondent

No. 97-1648, No. 97-1670

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 5, 1999

Decided June 25, 1999

On Petitions for Review of Orders of the United States Secretary of State.

Jacob A. Stein argued the cause for petitioner in 97-1648. With him on the briefs were George A. Fisher and Ronald G. Precup.

Ramsey Clark argued the cause for petitioner 97-1670. With him on the briefs was Lawrence W. Schilling.

Douglas N. Letter, Litigation Counsel, U.S. Department of Justice, argued the cause for respondents in 97-1648. With him on the brief were Frank W. Hunger, Assistant Attorney General, Wilma A. Lewis, U.S. Attorney, John P. Schnitker and H. Thomas Byron, III, Attorneys, U.S. Department of Justice.

John P. Schnitker, Attorney, U.S. Department of Justice, argued the cause for respondent in 97-1670. With him on the brief were Frank W. Hunger, Assistant Attorney General, Wilma A. Lewis, U.S. Attorney, Douglas N. Letter, Litigation Counsel, U.S. Department of Justice, and H. Thomas Byron, III, Attorney.

Before: Williams and Randolph, Circuit Judges, and Buckley, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

The Antiterrorism and Effective Death Penalty Act conferred upon the Secretary of State the power to designate "foreign terrorist organizations." 8 U.S.C. § 1189. By order effective October 8, 1997, Secretary of State Madeline K. Albright so designated the People's Mojahedin Organization of Iran and the Liberation Tigers of Tamil Eelam. See Designation of Foreign Terrorist Organizations, 62 Fed. Reg. 52,650 (1997). Both groups have brought petitions for judicial review of their designations pursuant to 8 U.S.C. § 1189(b)(1).¹

I

The statute before us is unique, procedurally and substantively. On the basis of an "administrative record," the Secretary of State is to make "findings" that an entity is a foreign organization engaging in terrorist activities that threaten the national security of the United States. See 8 U.S.C. § 1189(a)(2)(A)(i), (3)(A). This language--"findings" on an "administrative record"--is commonplace. We encounter it day in and day out in cases coming from federal agencies. But unlike the run-of-the-mill administrative proceeding, here there is no adversary hearing, no presentation of what courts and agencies think of as evidence, no advance notice to the entity affected by the Secretary's internal deliberations. When the Secretary announces the designation, through publication in the Federal Register, the organization's bank accounts in the United States become subject to seizure and anyone who knowingly contributes financial support to the named entity becomes subject to criminal prosecution. See 8 U.S.C. §§ 1189(a)(2)(C), 2339B(a)(1). Any classified informaion on which the Secretary relied in bringing about these consequences may continue to remain secret, except from certain members of Congress and this court. See 8 U.S.C. § 1189(a)(2)(A)(i), (b)(2). There is a provision for "judicial review" confined to the material the Secretary assembled before publishing the designation. See 8 U.S.C. § 1189(b)(2). Because nothing in the legislation restricts the Secretary from acting on the basis of third hand accounts, press stories, material on the Internet or other hearsay regarding the organization's activities, the "administrative record" may consist of little else.

We will give the details of the governing provisions in a moment. At this point in a judicial opinion, appellate courts often lay out the "facts." We will not, cannot, do so in these cases. What follows in the next two subsections may or may not be facts. The information recited is certainly not evidence of the sort that would normally be received in court. It is instead material the Secretary of State compiled as a record, from sources named and unnamed, the accuracy of which we have no way of evaluating.

A

"The Liberation Tigers of Tamil Eelam was founded in 1976 for the purpose of creating a separate Tamil state in Sri Lanka. The group began its war against the Government of Sri Lanka in 1983 and has employed violent means, including bombings and political assassination, to achieve the goal of a separate entity in the North and East of the country. Some 50,000 people are estimated to have died in fourteen years of fighting."² "Sri Lankan military and intelligence sources that have reported reliably in the past have identified the Ellalan Force as another alias for the Liberation Tigers of Tamil Eelam," which "will hereafter be referred to as the 'LTTE'." "Headquartered in the Jaffna Peninsula [of Sri Lanka], ... Velupillai Prabhakaran," "the founder and leader of Sri Lanka's LTTE ... organized the insurgency group to pursue an independent homeland for Tamils in Sri Lanka's northern and eastern regions out of frustration over the ethnic discrimination of the Sri Lankan government, according to press reports." "Tamils ... are the mainstay of his organization, according to US military officials."

A February 1995 news story from Hong Kong stated: "Sri Lanka's Tamil Tiger rebels denied plans to assassinate President Chandrika Kumaratunga but tacitly

admitted having killed former Indian Premier Rajiv Gandhi, press reports here said Tuesday.... Tigers have also been accused of killing Sri Lankan President Ranasinghe Premadasa in May 1993 and opposition leader Gamini Dissanayake in October last year. However, Tigers have denied all these killings." "[T]he LTTE tried to assassinate leaders of the Tamil Eelam Liberation Organization (TELO)--a Tamil political party--on August 26 [1996]. The President of the party escaped, but a district leader was killed." A report dated July 1996 stated: "A suicide bomb attack by the Liberation Tigers of Tamil Eelam ... narrowly missed killing a key [cabinet minister] and left 25 dead...." A State Department report on terrorist activity in 1996 reported that: "The LTTE has refrained from targeting Western tourists, but a front group--the Ellalan Force--continued to send threatening letters to Western missions and the press."

"The LTTE ... uses its international contacts to procure weapons, communications, and bomb-making equipment. The LTTE exploits large Tamil communities in North America, Europe, and Asia to obtain funds and supplies for its fighters in Sri Lanka."

B

A CIA Intelligence Research Paper, dated July 1993, reports that the People's Mojahedin Organization of Iran--the MEK, for short--"is the largest and most active Iranian dissident group. Its primary goal is the overthrow of the Iranian Government, after which it would seek to establish a nontheocratic republic.... The MEK's history, marked by violence and terrorism, belies its claim to uphold democratic ideals. Formed in the early 1960s, its origins reflect both Marxist and Islamic influences, and its history is studded with anti-Western activity." ³

The MEK "collaborated with Ayatollah Khomeini to overthrow the former Shah of Iran. As part of that struggle, they assassinated at least six American citizens, supported the takeover of the U.S. embassy, and opposed the release of American hostages." "[In 1972] the MEK exploded time bombs at more than a dozen sites throughout Tehran, including the Iran-American Society, ... and the offices of Pepsi Cola and General Motors. From 1972-75 ... the Mojahedin continued their campaign of bombings, damaging such targets as the offices of Pan-American Airlines, Shell Oil Company, and British organizations." "The MEK has been unable since the mid-1980s to mount terrorist operations inside Iran on the same scale as its earlier activities because of government repression and the group's lack of popular support." "In June 1987 the MEK formed a military wing, the National Liberation Army of Iran (NLA), which is located in eastern Iraq along the central Iran-Iraq border area." "In April 1992, the MEK used its sympathizers in the United States, Canada, Germany, France, the United Kingdom, Switzerland, the Netherlands, Sweden, Norway, Denmark and Australia to launch virtually simultaneous attacks on Iranian embassies and installations." In March 1994 Reuters and the BBC reported that the MEK "said its fighters attacked and disabled 14 oil pipelines in the north of Khuzistan province during military operations" and took credit for "25 other ... attacks it said took place in Iran between March 8 and March 18."

"The MEK looks to expatriate Iranians who are not members of the organization for financial support and manpower." "Baghdad is the MEK's primary supporter and closest ally." "The MEK has offices and members throughout Europe, North America, the Middle East and in Australia. These offices are responsible for collecting donations from private citizens--especially Iranian expatriates--for the MEK and for organizing activities such as demonstrations to show support for the MEK."

C

Section 1189(a)(1), as added by the Antiterrorism and Effective Death Penalty Act of 1996, Pub L. No. 104-132, § 302, 110 Stat. 1214, 1248, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 356, 110 Stat. 3009, 3009-644, empowers the Secretary of State to designate a "foreign terrorist organization" if the Secretary finds three things: "(A) the organization is a foreign organization"; "(B) the organization engages in terrorist activity" as defined in the provisions set forth in the margin;⁴ and "(C) the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States." Such activities threaten the "national...