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PEOPLE'S MOJAHEDIN ORGANIZATION OF IRAN v. U.S. DEPARTMENT OF STATE
PEOPLE'S MOJAHEDIN ORGANIZATION OF IRAN, Petitioner,
v.
UNITED STATES DEPARTMENT OF STATE AND HILLARY RODHAM CLINTON, IN HER
CAPACITY AS SECRETARY OF STATE, Respondents.
No. 09-1059.
United States Court of Appeals, District of Columbia Circuit.
Argued January 12, 2010.
Decided July 16, 2010.
Andrew L. Frey argued the cause for the petitioner. Miriam R. Nemetz,
Melanie W. Rughani, Steven M. Schneebaum, E. Barrett Prettyman Jr. and
Joshua D. Hawley were on brief. Ronald G. Precup entered an appearance.
Paul B. Stephan III was on brief for amici curiae the Honorable Alejo
Vidal-Quadras et al. in support of the petitioner.
James C. Martin and W. Thomas McGough Jr. were on brief for amici curiae
Colonel Gary L. Morsch, M.D. et al. in support of the petitioner.
Lawrence S. Robbins and Alan E. Untereiner were on brief for amici curiae
Iranian-American Society of Texas et al. in support of the petitioner.
Viet D. Dinh and Nathan A. Sales were on brief for amici curiae Members of
Congress in support of the petitioner.
Douglas Letter, Attorney, United States Department of Justice, argued the
cause for the respondents. Ileana M. Ciobanu, Attorney, was on brief.
Before: HENDERSON and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit
Judge.
Opinion for the court filed PER CURIAM.
Concurring opinion filed by Circuit Judge HENDERSON.
PER CURIAM:
This case is the fifth in a series of related actions challenging the United
States Secretary of State's designation of the Mojahedin-e Khalq
Organization (MEK) and its aliases as a Foreign Terrorist Organization
(FTO). The MEK, also called the People's Mojahedin Organization of Iran
(PMOI),[ <javascript:void(0)> 1 ] has challenged its FTO status before this
court three times. See People's Mojahedin Org. of Iran v. U.S. Dep't of
State, 182 F.3d 17, 18-19 (D.C. Cir. 1999) (PMOI I); Nat'l Council of
Resistance of Iran v. Dep't of State, 251 F.3d 192, 195-96 (D.C. Cir. 2001)
(NCRI I); People's Mojahedin Org. of Iran v. U.S. Dep't of State, 327 F.3d
1238, 1239 (D.C. Cir. 2003) (PMOI II). The National Council of Resistance of
Iran (NCRI), which the United States Department of State (State) considers
an alias or alter ego of the PMOI, has challenged its FTO status twiceonce
with the PMOI and once on its own. See NCRI I, 251 F.3d at 197; Nat'l
Council of Resistance of Iran v. Dep't of State, 373 F.3d 152, 154 (D.C.
Cir. 2004) (NCRI II). In NCRI I, the court remanded the petition to the
Secretary to provide certain due process protections to the PMOI and the
NCRI. See 251 F.3d at 209. In the other three cases, including both
petitions for review following remand in NCRI I, the court denied the
petitioners' challenges.
On July 15, 2008, citing a change in its circumstances, the PMOI petitioned
State and its Secretary for revocation of the PMOI's FTO designation. After
assembling a record comprised of materials submitted by both the PMOI and
the U.S. intelligence community, including classified information, the
Secretary rejected the PMOI's petition on January 12, 2009. See In the
Matter of the Review of the Designation of Mujahedin-e Khalq Organization
(MEK), and All Designated Aliases, as a Foreign Terrorist Organization, 74
Fed. Reg. 1273, 1273-74 (Jan. 12, 2009). The PMOI now seeks review of the
Secretary's decision. We conclude that the Secretary failed to accord the
PMOI the due process protections outlined in our previous decisions and
therefore remand.
I.
Although our earlier decisions detail the statutory scheme and the PMOI's
prior designations, we briefly review them again together with the events
leading to this action.
A.
We begin by describing the Anti-Terrorism and Effective Death Penalty Act of
1996 (AEDPA), which was amended as part of the Intelligence Reform and
Terrorist Prevention Act of 2004, Pub. L. No. 108-458, § 7119, 118 Stat.
3638, 3801 (2004). Under AEDPA, the Secretary may designate an entity as an
FTO if she determines that (A) the entity is foreign, (B) it engages in
"terrorist activity" or "terrorism" and (C) the terrorist activity threatens
the security of the United States or its nationals. 8 U.S.C. § 1189(a)(1).
"Terrorist activity" is defined in section 1182(a)(3)(B)(iii) and includes
hijacking, sabotage, kidnapping, assassination and the use of explosives,
firearms, or biological, chemical or nuclear weapons with intent to endanger
people or property, or a threat or conspiracy to do any of the foregoing. To
"engage in terrorist activity" involves, among other acts, soliciting funds
or affording material support for terrorist activities, id. §
1182(a)(3)(B)(iv), while "terrorism" means "premeditated, politically
motivated violence perpetrated against noncombatant targets by subnational
groups or clandestine agents," 22 U.S.C. § 2656f(d)(2).
The FTO designation has at least three consequences: the Secretary of the
United States Treasury Department may freeze the FTO's assets, 8 U.S.C. §
1189(a)(2)(C); FTO members are barred from entering the United States, id. §
1182(a)(3)(B)(i)(IV), (V); and those who knowingly provide "material support
or resources" to an FTO are subject to criminal prosecution, 18 U.S.C. §
2339B(a)(1). See Kahane Chai v. Dep't of State, 466 F.3d 125, 127 (D.C. Cir.
2006); NCRI II, 373 F.3d at 154. A designated organization can attempt to
avoid these consequences by seeking review in this court no later than
thirty days after publication in the Federal Register of the Secretary's
designation, amended designation or determination in response to a petition
for revocation. See 8 U.S.C. § 1189(c)(1). Our review is based "solely upon
the administrative record, except that the Government may submit, for ex
parte and in camera review, classified information" that the Secretary used
to reach her decision. Id. § 1189(c)(2). The review "sounds like the
familiar procedure normally employed by the Congress to afford due process
in administrative proceedings" and is "reminiscent of other administrative
review." NCRI I, 251 F.3d at 196-97. Employing "APA-like language," PMOI I,
182 F.3d at 22, the statute requires that we "hold unlawful and set aside a
designation, amended designation, or determination in response to a petition
for revocation" that we find:
(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.
8 U.S.C. § 1189(c)(3). This standard of review applies only to the first and
second requirements, namely, (1) that the organization is foreign and (2)
that it engages in terrorism or terrorist activity or retains the capability
and intent to do so. We have held that the third requirementthat the
organization's activities threaten U.S. nationals or national
securitypresents an unreviewable political question. PMOI I, 182 F.3d at
23.
B.
As originally enacted, AEDPA permitted an FTO designation to remain in
effect for only two years, which required the Secretary at the end of that
time period to either compile a new administrative record and renew the
designation or allow it to lapse. See 8 U.S.C. § 1189(a)(4)(A)-(B) (2003).
Her determination was subject to review in this court. Id. § 1189(b) (2003).
The Secretary first designated the PMOI as an FTO under AEDPA in 1997 and
made successive designations in 1999, 2001 and 2003. See Designation of
Foreign Terrorist Organizations, 62 Fed. Reg. 52,650 (Oct. 8, 1997) (1997
Designation); Designation of Foreign Terrorist Organizations, 64 Fed. Reg.
55,112 (Oct. 8, 1999) (1999 Designation); Redesignation of Foreign Terrorist
Organizations, 66 Fed. Reg. 51,088, 51,089 (Oct. 5, 2001) (2001
Redesignation); Redesignation of Foreign Terrorist Organizations, 68 Fed.
Reg. 56,860, 56,861 (Oct. 2, 2003) (2003 Redesignation). In PMOI I, we
denied the PMOI's petition for review of the initial 1997 Designation. 182
F.3d at 25. In her 1999 redesignation, the Secretary coupled the PMOI with
the NCRI, which the Secretary considered the PMOI's alter ego or alias. See
1999 Designation. On review, we held that the Secretary had substantial
support to so conclude but we remanded after concluding that the PMOI and
the NCRI had been denied due process. See NCRI I, 251 F.3d at 209.
On remand, the Secretary allowed the PMOI and the NCRI to respond to the
unclassified portions of the Secretary's administrative record and also to
supplement it. After reviewing the record so comprised, the Secretary
re-entered the 1999 Designation as to the PMOI on September 24, 2001, see
Letter of Ambassador Francis X. Taylor, Coordinator for Counterterrorism,
U.S. Dep't of State, at 2 (Sept. 24, 2001), and began a new two-year
designation the following month as to both the PMOI and the NCRI, see 2001
Redesignation. We denied the PMOI's petition for review. See PMOI II, 327
F.3d at 1245. The Secretary's 2001 Redesignation also concluded that the
NCRI was the PMOI's alter ego and was thus also properly designated an FTO.
At the same time, State assured the NCRI that it would make a de novo
determination of its FTO designation after completing a review of the
materials the NCRI had submitted to the Secretary. See NCRI II, 373 F.3d at
155 (citing Letter of Ambassador Francis X. Taylor, Coordinator for
Counterterrorism, U.S. Dep't of State, at 1 (Oct. 5, 2001)). In May 2003,
the Secretary left in place the 1999 Designation and 2001 Redesignation of
the NCRI as an alias of the PMOI and an FTO and, on review, we upheld the
Secretary's decision. See NCRI II, 373 F.3d at 154 (denying petition for
review because "the Secretary's latest designation complied with the
governing statute and all constitutional requirements"). Before our decision
issued, the Secretary had already redesignated the PMOI again in October
2003.[ <javascript:void(0)> 2 ] See 2003 Redesignation.
Shortly after NCRI II, and while the 2003 Redesignation of the PMOI was
still in effect, the Congress lessened the Secretary's administrative burden
by amending AEDPA to remove the two-year limitation on an FTO designation.
See Intelligence Reform and Terrorist Prevention Act of 2004 § 7119. A
designation no longer lapses. Instead, a designated organization may seek
revocation two years after the designation is made or, if the designated
organization has previously filed a petition for revocation, two years after
that petition is resolved. 8 U.S.C. § 1189(a)(4)(B)(ii). To seek revocation,
an FTO "must provide evidence in that petition that the relevant
circumstances. . . are sufficiently different from the circumstances that
were the basis for the designation such that a revocation with respect to
the organization is warranted." Id. § 1189(a)(4)(B)(iii). The Secretary has
180 days from the date of the petition to make her revocation decision. Id.
§ 1189(a)(4)(B)(iv)(I). In making her decision, the Secretary may rely on
classified information, which "shall not be subject to disclosure for such
time as it remains classified, except that such information may be disclosed
to a court ex parte and in camera for purposes of judicial review." Id. §
1189(a)(4)(B)(iv)(II). If five years elapse without a petition for
revocation from the FTO, the Secretary conducts her own review to determine
if revocation is appropriate. Id. § 1189(a)(4)(C)(i). Unlike a determination
made in response to a petition for revocation, her ex mero motu decision is
not judicially reviewable. Id. § 1189(a)(4)(C)(ii). While the Secretary may
revoke a designation at any time, id. § 1189(a)(6)(A), the statute directs
that she shall revoke a designation if she finds that either "the
circumstances that were the basis for the designation have changed in such a
manner as to warrant revocation," or "the national security of the United
States warrants a revocation," id.
C.
This action began in July 2008, when the PMOI filed a petition for
revocation of its 2003 Redesignation. The PMOI argued that the 2003
Redesignation should be revoked because of its dramatically changed
circumstances since the Secretary's and this court's last reviews. It
submitted evidence to the Secretary of its changed circumstances, asserting
that, since its initial FTO designation in 1997, it had: ceased its military
campaign against the Iranian regime and renounced violence in 2001;
voluntarily handed over its arms to U.S. forces in Iraq and cooperated with
U.S. officials at Camp Ashraf (where all of its members operating in Iraq
are consolidated) in 2003; shared intelligence with the U.S. government
regarding Iran's nuclear program; in 2004 obtained "protected person" status
under the Fourth Geneva Convention for all PMOI members at Camp Ashraf based
on the U.S. investigators' conclusions that none was a combatant or had
committed a crime under any U.S. laws; disbanded its military units and
disarmed the PMOI members at Ashraf, all of whom signed a document rejecting
violence and terror; and obtained delisting as a terrorist organization from
the United Kingdom (the Proscribed Organisations Appeal Commission and the
Court of Appeal) in 2008 and from the European Union (the European Court of
First Instance) in 2009. The PMOI also thrice supplemented its petition with
additional information and letters in support from members of the U.S.
Congress, members of the UK and European parliaments and retired members of
the U.S. military, among others.
After reviewing an administrative record consisting of both classified and
unclassified information, the Secretary denied the PMOI's petition and
published its denial in the Federal Register on January 12, 2009. See 74
Fed. Reg. at 1273-74. She also provided the PMOI with a heavily redacted
20-page administrative summary of State's review of the record, which
summary referred to 33 exhibits, many of which were also heavily or entirely
redacted. See Admin. Summ. (Jan. 8, 2009) (Unclassified Version); Revised
Admin. Summ. (Apr. 24, 2009) (Unclassified Version). The Secretary's
determination was based on the administrative record, "supporting exhibits
and supplemental filings by the MEK in support of the Petition, as well as
information from a variety of sources, including the U.S. Intelligence
Community." Revised Admin. Summ. 2. She wrote that "in considering the
evidence as a whole, the MEK has not shown that the relevant circumstances
are sufficiently different from the circumstances that were the basis for
the 2003 re-designation," and that "[a]s a consequence, the MEK continues to
be a foreign organization that engages in terrorist activity . . . or
terrorism . . . or retains the capability and intent to" do so. Id.; see 74
Fed. Reg. at 1273-74. Nevertheless she also noted:
In light of the evidence submitted by the MEK that it has renounced
terrorism and the uncertainty surrounding the MEK presence in Iraq, the
continued designation of the MEK should be re-examined by the Secretary of
State in the next two years even if the MEK does not file a petition for
revocation.
Revised Admin. Summ. 20. Although the Secretary informed the PMOI of her
decision the day before it was published in the Federal Register, she did
not provide the organization any unclassified material on which she intended
to rely. See Resp'ts' Br. 20 (after denying revocation petition "[t]he State
Department . . . provided to the PMOI an unclassified summary of the
evidence in the record and the agency's analysis of the issues").
The PMOI filed a timely petition for review on February 11, 2009 under 8
U.S.C. § 1189(c). It asks us to vacate the Secretary's decision and remand
with instructions to revoke its FTO designation based on a lack of
substantial support in the record. Alternatively, the PMOI asks us to vacate
its designation on the ground that the Secretary did not comply with the due
process requirements set forth in our earlier decisions by failing to
provide it with advance notice of her proposed action and the unclassified
record on which she intended to rely, as well as by failing to provide it
with any access to the classified record.
State submitted its classified administrative record on March 30, 2009 for
ex parte and in camera review under 8 U.S.C. § 1189(c)(2); it subsequently
filed a redacted, unclassified version in August 2009. In filing the latter
document, State noted that it intended to file additional documents as soon
as its declassification review was finished. It later supplemented the
record with newly declassified material twiceonce on September 8, 2009, the
day the PMOI's opening brief was due, and again on October 27, 2009, about
two weeks before the PMOI's reply brief due date.[ <javascript:void(0)> 3 ]
II.
Ordinarily, we would be required to decide whether to set aside the
Secretary's denial of the PMOI's revocation petition on the ground that her
conclusion that the PMOI "engages in terrorist activity . . . or terrorism .
. . or retains the capability and intent to engage in terrorist activity or
terrorism," Revised Admin. Summ. 2-3, "lack[s] substantial support in the
administrative record taken as a whole or in classified information
submitted to the court." 8 U.S.C. § 1189(c)(3)(D).
Here, however, we need not determine the adequacy of the record because, as
the PMOI argues, our review "is not sufficient to supply the otherwise
absent due process protection" of notice to the designated organization and
an opportunity for a meaningful hearing. NCRI I, 251 F.3d at 208 (designated
organization entitled to "opportunity to be heard `at a meaningful time and
in a meaningful manner'" (quoting Mathews v. Eldridge, 424 U.S. 319, 333
(1976))). In other words, even were we to agree with State that the record
is sufficient, we cannot uphold the designation absent the procedural
safeguards required by our precedent. Specifically, our cases require the
Secretary to notify the PMOI of the unclassified material "upon which [s]he
propose[d] to rely" and to allow the PMOI "the opportunity to present, at
least in written form, such evidence as [it] may be able to produce to rebut
the administrative record or otherwise negate the proposition that" it is an
FTO. NCRI I, 251 F.3d at 209.
This did not happen here. The PMOI was notified of the Secretary's decision
and permitted access to the unclassified portion of the record only after
the decision was final.[ <javascript:void(0)> 4 ] And even though the PMOI
was given the opportunity to include in the record its own evidence
supporting delisting, it had no opportunity to rebut the unclassified
portion of the record the Secretary was compilingan omission, the PMOI
argues, that deprived it of the due process protections detailed in our
previous decisions. See Pet'r's Br. 23 ("[T]he Secretary's decision is
procedurally infirm because PMOI was given no opportunity to rebut the
administrative record . . . .").
State does not deny that the Secretary failed to provide the type of notice
specified in NCRI I. But it argues that she complied with our precedent well
enough in light of the statutory scheme as altered by the 2004 AEDPA
amendments and the "flexible" nature of due process. Arg. Tr. 22:18-21; see
NCRI I, 251 F.3d at 205 (quoting Morrissey v. Brewer, 408 U.S. 471, 481
(1972)). Within that framework, State argues, the Secretary provided the
PMOI with all of the process constitutionally due by informally meeting with
the PMOI in October 2008 (at the PMOI's request), by allowing the PMOI to
supplement the administrative record with evidence of its own and by sharing
unclassified material with the PMOI (but not before her denial of the
revocation petition). See Resp'ts' Br. 18, 44-45 (citing PMOI II, 327 F.3d
at 1242; NCRI I, 251 F.3d at 208-09) (PMOI received "notice along with the
opportunity to be effectively heard" and "nothing more is required by this
Court"). State also urges that, even if the Secretary should have turned
over the unclassified portion of the record before its January 2009
decision, her failure to do so was harmless.
We disagree on both counts. Nothing in the 2004 amendments provides a basis
for relaxing the due process requirements we outlined for the redesignation
decision at issue in NCRI I. Although phrased slightly differently, the
Secretary's fundamental inquiry is the same for both redesignation under the
old statute and revocation under the new. Compare 8 U.S.C. § 1189(a)(4)(B)
(2003) (redesignation appropriate if "relevant circumstances" initially
warranting designation "still exist") with id. § 1189(a)(6) (revocation
appropriate if "circumstances that were the basis for the designation have
changed in such a manner as to warrant revocation"). So, too, is our
standard of review the same under both versions of the statute whether we
review a "designation," a "redesignation" or a "petition for revocation."
See id. § 1189(c)(3). And while the amended version of the statute puts the
burden on an FTO to "provide evidence" of changed circumstances, see id. §
1189(a)(4)(B)(iii), the Secretary must still compile a record supporting the
continued designation, see id. § 1189(a)(6)(B). In short, we have held due
process requires that the PMOI be notified of the unclassified material on
which the Secretary proposes to rely and an opportunity to respond to that
material before its redesignation; nothing in the amended statute suggests
that this protection is any less necessary in the revocation context.[
<javascript:void(0)> 5 ]
Nor do we find the Secretary's failure to provide the required notice and
unclassified material in advance of her decision harmless because the
information at the "heart" of the Secretary's decision is classified and
could not have been shared in any event. Resp'ts' Br. 45-46. State's
characterization notwithstanding, at argument it acknowledged that the
Secretary's decision was based not on "just the classified information" but
rather "on the record as a whole." Arg. Tr. 31:24-32:1-7; see Suppl. Admin.
R. 19 ("In considering the body of evidence as a whole, intelligence and
national security experts conclude that the MEK has not demonstrated that
the circumstances that were the basis for the original designation have
changed in such a manner as to warrant revocation."). Hence, State asks us
to assume that nothing the PMOI would have offerednot even evidence
refuting whatever unclassified material the Secretary may have relied
oncould have changed her mind. We explicitly rejected this argument in NCRI
I. See 251 F.3d at 209 ("We have no reason to presume that the petitioners
in this particular case could have offered evidence which might have either
changed the Secretary's mind or affected the adequacy of the record[, but] .
. . without the due process protections which we have outlined, we cannot
presume the contrary either."). Far from assuming that the classified record
obviated further review, we held that our limited role "is not sufficient to
supply the otherwise absent due process protection." Id. at 209.[
<javascript:void(0)> 6 ]
To illustrate, during the briefing in this case, the Secretary twice
supplemented the unclassified record with formerly classified materials.
These disclosures include the statement that PMOI members planned suicide
attacks in Karbala. Because it learned of this information only after it
petitioned for judicial review, the PMOI attempts to distinguish and
discredit it for the first time before us. See Pet'r's Reply Br. 21 (calling
allegations "so manifestly implausible that they earned no mention in the
Government's brief"). Citing PMOI I, 182 F.3d at 19, 25, State argues that
the Secretary may consider "sources named and unnamed, the accuracy of which
we have no way of evaluating," and that we cannot make any "judgment
whatsoever regarding whether the material before the Secretary is or is not
true." Nevertheless, to the extent we defer to the Secretary's fact-finding
process, we have done so with the understanding that the Secretary has
adhered to the procedural safeguards of the due process clause, see NCRI I,
251 F.3d at 209, and afforded the designated organization a fair opportunity
to respond to the unclassified record.
At oral argument, State suggested that the PMOI, now in possession of the
unclassified portions of the record (including the newly declassified
material), may go back to the Secretary and provide evidence to rebut it.
See Arg. Tr. 26:19-20. We think a better approach is the one the
then-Secretary took after remand in NCRI I, when, apparently faced with a
similar time crunch, he made a designation that was to be reevaluated once
he fully reviewed the supplemented record. See NCRI II, 373 F.3d at 155 ("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.'" (quoting Letter of Ambassador
Francis X. Taylor, Coordinator for Counterterrorism, U.S. Dep't of State, at
1 (Oct. 5, 2001))).
Our reluctance to accept State's "no harm, no foul" theory is greater in
light of the fact that we are unsure what material the Secretary in fact
relied on or to what portion of 8 U.S.C. § 1189(a)(1)(B) she found it
relevant. While "it is emphatically not our province to second-guess the
Secretary's judgment as to which affidavits to credit and upon whose
conclusions to rely," the Congress has required us to determine "whether the
`support' marshaled for the Secretary's designation was `substantial.'" NCRI
II, 373 F.3d at 159 (quoting 8 U.S.C. § 1889A(b)(3)(D)). Some of the reports
included in the Secretary's analysis on their face express reservations
about the accuracy of the information contained therein. See, e.g., Suppl.
Admin. R., MEK-11 (describing "possible plans to attack [the] international
zone in Baghdad" but conceding that "the ultimate sources of the information
was [sic] unknown and as such, their access, veracity, and motivations were
unknown"). Similarly, while including reports about the Karbala suicide
attack plot described above, the Secretary did not indicate whether she
accepted or discredited the reports and we do not know whether the PMOI can
rebut the reports.
In other instances, the Secretary cited a source that it seemed to regard as
credible but did not indicate to what part of the statute the source's
information was relevant. For example, her analysis described a federal
grand jury indictment alleging that MEK has engaged in fraud in fundraising
operations and she faulted the PMOI for failing to discuss its finances in
its submission to the Secretary. Suppl. Admin. R. 11. It is unclear,
however, whether the Secretary believes that fundraising under false
pretenses is direct evidence of terrorist activity or instead bears on the
PMOI's "capability" to engage in terrorist activity in the future or its
"intent" to do so. 8 U.S.C. § 1189(a)(1)(B). While we will not substitute
our judgement for that of the Secretary in deciding which sources are
credible, we must determine whether the record before her provides "a
sufficient basis for a reasonable person to conclude" that the statutory
requirements have been met. Kahane Chai, 466 F.3d at 129 (citing PMOI I, 182
F.3d at 25). Without knowing whether, or how, the Secretary evaluated the
record material, we are unable to do so.
III.
As we noted in NCRI I, "[w]e recognize that a strict and immediate
application of the principles of law which we have set forth herein could be
taken to require a revocation of the designation[] before us[, but] . . . we
also recognize the realities of the foreign policy and national security
concerns asserted by the Secretary in support of th[e] designation." 251
F.3d at 209. We thus leave the designation in place but remand with
instructions to the Secretary to provide the PMOI the opportunity to review
and rebut the unclassified portions of the record on which she relied. In so
doing, we emphasize two things:
First, as earlier explained, the Secretary should indicate in her
administrative summary which sources she regards as sufficiently credible
that she relies on them; and she should explain to which part of section
1189(a)(1)(B) the information she relies on relates. Second, although the
Secretary must give the PMOI an opportunity to rebut the unclassified
material on which she relies,[ <javascript:void(0)> 7 ] AEDPA does not
allow access to the classified record as it makes clear that classified
material "shall not be subject to disclosure for such time as it remains
classified, except that such information may be disclosed to a court ex
parte and in camera for purposes of judicial review." 8 U.S.C. §
1189(a)(4)(B)(iv)(II); see id. § 1189(c)(2) (providing for court's "ex parte
and in camera review" of "classified information used in making the
designation"). Our cases under AEDPA have suggested that this procedure can
satisfy due process requirements, at least where the Secretary has not
relied critically on classified material and the unclassified material
provided to the FTO is sufficient to justify the designation. See NCRI II,
373 F.3d at 159-60; PMOI II, 327 F.3d at 1243 ("We already decided in [NCRI
I] that due process required the disclosure of only the unclassified
portions of the administrative record.") (emphasis in original); NCRI I, 251
F.3d at 202, 208-09 ("We acknowledge that in reviewing the whole record, we
have included the classified material[, but] . . . we will not and cannot
disclose the contents of the record," which "is within the privilege and
prerogative of the executive"); see also Jifry v. Fed. Aviation Admin., 370
F.3d 1174, 1182, 1184 (D.C. Cir. 2004) (pilot denied licensure has no right
to access to classified record because "[t]he due process protections
afforded . . . parallel those provided under similar circumstances in [NCRI
I and PMOI II], and are sufficient to satisfy our case law"); Holy Land
Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 164 (D.C. Cir. 2003)
("HLF's complaint, like that of the Designated Foreign Terrorists
Organizations in [NCRI I and PMOI II], that due process prevents its
designation [under a different law] based upon classified information to
which it has not had access is of no avail."). We note, however, that none
of the AEDPA cases decides whether an administrative decision relying
critically on undisclosed classified material would comport with due process
because in none was the classified record essential to uphold an FTO
designation. But they do indicate that, for the purpose of today's remand,
affording PMOI an opportunity to review and rebut the unclassified portions
of the record, coupled with the Secretary's assurance that she has evaluated
the materialand the sources thereforthat she relied on to make her
decision, may be sufficient to provide the requisite due process.
For the reasons set forth above, the Secretary's denial of the People's
Mojahedin of Iran's petition for revocation of its 2003 designation as a
foreign terrorist organization is remanded to the Secretary for further
proceedings consistent with this opinion.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
We are to uphold the Secretary's determination unless it "lack[s]
substantial support in the administrative record taken as a whole or in
classified information submitted to the court." 8 U.S.C. § 1189(c)(3)(D)
(emphasis added). In my view, the classified portion of the administrative
record provides "substantial support" for her determination that the PMOI
either continues to engage in terrorism or terrorist activity or retains the
capability and intent to do so and, consequently, for her denial of the
PMOI's revocation petition. Further, our cases have repeatedly emphasized
what the statute makes clear: the PMOI enjoys no right to access classified
material the Secretary relied on. See NCRI I, 251 F.3d at 208 (state's
notice to designated entities "need not disclose the classified information
to be presented in camera and ex parte to the court under the statute"); see
also PMOI II, 327 F.3d at 1242 (we "already decided in [NCRI I] that due
process required the disclosure of only the unclassified portions")
(emphasis in original). And we have upheld against due process challenge an
AEDPA designation that relied on both classified and unclassified material.
See NCRI II, 373 F.3d at 152 ("Based on our review of the entire
administrative record and the classified materials appended thereto, we find
that the Secretary did have an adequate basis for his conclusion.")
(emphasis added). Although we acknowledged later in the same opinion that
the unclassified record alone would have sufficed to support the
designation, we have consistently and unambiguously followed this reading of
NCRI I in virtually every AEDPA case.[ <javascript:void(0)> 8 ] See id. at
159-60 (access argument is "foreclosed by our earlier decisions in [NCRI I]
and PMOI II"); cf. Kahane Chai v. Dep't of State, 466 F.3d 125, 129 (D.C.
Cir. 2006) (declining to resolve due process claim because "we can uphold
the designations based solely upon the unclassified portion of the
administrative record"). Moreover, other precedent also affirms
administrative decisions relying on classified material, each rejecting a
due process challenge on the basis of PMOI II and NCRI I.[
<javascript:void(0)> 9 ] While these decisions are not under AEDPA, they
treat our AEDPA precedent as binding and are, in any event, binding
themselves.
According to the Secretary, however, as in NCRI I her decision was based on
both classified and unclassified material. Because the PMOI had no
opportunity to access/rebut the unclassified portions before the Secretary's
decision was final, it is not clear that she would have denied the
revocation petition had that material been made available to the PMOI
earlier. In addition, the Secretary herself appears to have recognized the
ambiguity of the record by recommending a sua sponte reexamination of the
PMOI's status in two years. Revised Admin. Summ. 20 ("In light of the
evidence submitted by the MEK that it has renounced terrorism and the
uncertainty surrounding the MEK presence in Iraq, the continued designation
of the MEK should be re-examined by the Secretary of State in the next two
years even if the MEK does not file a petition for revocation."). In short,
were I confident that she had evaluated and relied on what I consider to be
the substantial support contained in the classified record only (along with
the sources therefor), I would affirm. Because I am not, I join my
colleagues in remanding to the Secretary.
[Non-text portions of this message have been removed]
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