251 F.3d 192, 178
A.L.R. Fed. 705, 346 U.S.App.D.C. 131 United States Court of
Appeals, District of Columbia Circuit. NATIONAL COUNCIL OF
RESISTANCE OF IRAN and National Council of Resistance of Iran, U.S.
Representative Office, Petitioners, v. DEPARTMENT OF STATE
and Madeleine K. Albright, Secretary of State, Respondents. Nos. 99-1438, 99-1439. Argued Nov. 15, 2000. Decided June 8, 2001. Rehearing Denied Aug.
27, 2001. SUBSEQUENT HISTORY: Distinguished by: Islamic
American Relief Agency v. Unidentified FBI Agents, 394 F.Supp.2d 34 (D.D.C. Sep
15, 2005) (NO. CIV.A. 04-2264(RBW)) RELATED REFERENCES: Peoples Mojahedin
Organization of Iran v. U.S. Dept. of State, 182 F.3d 17, 337 U.S.App.D.C. 106
(D.C.Cir. Jun 25, 1999) (NO. 97-1648, 97-1670), rehearing and suggestion for
rehearing in banc denied (Aug 27, 1999), cert. denied, 529 U.S. 1104 (May 1,
2000) (No. 99-1070) Peoples Mojahedin Organization of Iran v. Department of
State, 327 F.3d 1238, 356 U.S.App.D.C. 101 (D.C.Cir. May 09, 2003) (No.
01-1465, 01-1476) National Council of Resistance of Iran v. Department of State, 373
F.3d 152, 362 U.S.App.D.C. 143 (D.C.Cir. Jul 09, 2004) (No. 01-1480) [*195] [**134] On Petitions for Review of an Order of the Secretary of
State. COUNSEL: Martin D. Minsker argued the cause for
petitioners National Council of Resistance of Iran and National Council of
Resistance of Iran, U.S. Representative Office. With him on the briefs were
Scott L. Nelson, Ellen Fels Berkman and Jody Manier Kris. Jacob A. Stein argued the cause for petitioner Peoples
Mojahedin Organization of Iran. With him on the briefs were George A. Fisher
and Ronald G. Precup. Douglas N. Letter, Litigation Counsel, U.S. Department of Justice,
argued the cause for respondents. With him on the briefs were David W. Ogden,
Acting Assistant Attorney General, H. Thomas Byron, III, Attorney, and Wilma A.
Lewis, U.S. Attorney at the time the briefs were filed. JUDGES: EDWARDS, Chief Judge, SENTELLE and HENDERSON,
Circuit Judges. Opinion for the Court filed by Circuit Judge SENTELLE. OPINION BY: SENTELLE, Circuit Judge: Two organizations, the National Council of Resistance of Iran and
the Peoples Mojahedin of Iran, petition for review of the
Secretarys designation of the two as constituting a foreign
terrorist organization [*196] [**135] under the
Anti-Terrorism and Effective Death Penalty Act of 1996, raising both statutory
and constitutional arguments. While we determine that the designation was in
compliance with the statute, we further determine that the designation does
violate the due process rights of the petitioners under the Fifth Amendment,
and we therefore remand the case for further proceedings consistent with this
opinion. The Statute Under the Anti-Terrorism and Effective Death Penalty Act of 1996
(Anti-Terrorism Act or AEDPA), 8 U.S.C.
§ 1189, the Secretary of State is empowered to designate an
entity as a foreign terrorist organization. id. See generally Peoples
Mojahedin Org. of Iran v. Dept of State, 182 F.3d 17 (D.C.Cir.1999).
The consequences of that designation are dire. The designation by the Secretary
results in blocking any funds which the organization has on deposit with any
financial institution in the United States. 18 U.S.C.
§ 2339B(a)(2). Representatives and certain members of the
organization are barred from entry into the United States. 8 U.S.C. § 1182(a)(3)(B)(i)(IV
& V). Perhaps most importantly, all persons within or subject to
jurisdiction of the United States are forbidden from knowingly
providing material support or resources to the organization. 18
U.S.C. § 2339B(a)(1). Despite the seriousness of the consequences of the determination,
the administrative process by which the Secretary makes it is a truncated one.
In part, the AEDPA imposes the Secretarys duties in
APA-like language. Peoples Mojahedin, 182 F.3d at 22. The
Secretary compiles an administrative record and based upon
that record makes findings. Cf. Administrative Procedure
Act, 5 U.S.C. § 557(c). If the Secretary makes the critical
findings that an entity is a foreign organization engaging in
terrorist activities that threaten the national security of the United
States, Peoples Mojahedin, 182 F.3d at 19
(construing 8 U.S.C. § 1189), that entity then suffers the
consequences listed above. Following the administrative designation there is judicial review.
8 U.S.C. § 1189(b). While that statutory procedure, so far as
it goes, sounds like the familiar procedure normally employed by the Congress
to afford due process in administrative proceedings, the similarity to process
afforded in other administrative proceedings ends there. As we have observed
before, this statute
is unique, procedurally and
substantively. Peoples Mojahedin, 182 F.3d at 19. The
unique feature of this statutory procedure is the dearth of procedural
participation and protection afforded the designated entity. At no point in the
proceedings establishing the administrative record is the alleged terrorist
organization afforded notice of the materials used against it, or a right to
comment on such materials or the developing administrative record. Nothing in
the statute forbids the use of third hand accounts, press stories,
material on the Internet or other hearsay regarding the organizations
activities
. id. at 19. The Secretary may base the findings on
classified material, to which the organization has no access at any point
during or after the proceeding to designate it as terrorist. The entity may obtain judicial review by application to this court
not later than thirty days after the publication of the designation in the
Federal Register. 8 U.S.C. § 1189(b)(1). But that review is
quite limited. Review is based solely upon the administrative record. Granted
this is not in itself an unusual limitation, but one common to many
administrative reviews. However, under the AEDPA the aggrieved [*197] [**136] party has had
no opportunity to either add to or comment on the contents of that
administrative record; and the record can, and in our experience generally
does, encompass classified information used in making the
designation, as to which the alleged terrorist organization never has
any access, and which the statute expressly provides the government may submit
to the court ex parte and in camera. id. § 1189(b)(2). The scope of judicial review is limited as well. We are to hold
unlawful and set aside designations that we find 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 under paragraph (2), or (E) not in accord with the procedures required
by law. Id. § 1189(b)(3). Again, this limited scope is
reminiscent of other administrative review, but again, it has the unique
feature that the affected entity is unable to access, comment on, or contest
the critical material. Thus the entity does not have the benefit of meaningful
adversary proceedings on any of the statutory grounds, other than procedural
shortfalls so obvious a Secretary of State is not likely to commit them. Designations under the statute persist for two years and are
renewable for additional two-year periods by the same procedure as the original
designation. id. § 1189(a)(4)(B). In the decisions now under
review, we consider two petitions under § 1189(b). The Petitions By notice of October 8, 1999, the Secretary of State, inter alia,
redesignated petitioner Peoples Mojahedin of Iran
(PMOI) as a foreign terrorist organization pursuant to 8
U.S.C. § 1189. 64 Fed.Reg. 55,112 (1999). The two-year
redesignation of the PMOI extended the October 8, 1997 designation of the same
group as a terrorist organization. This court rejected a petition for review of
the 1997 designation in Peoples Mojahedin Org. of Iran v.
Dept of State, 182
F.3d 17 (D.C.Cir.1999). In the 1999 designation, then Secretary Madeleine
Albright for the first time included the designation of the second petitioner
before us, the National Council of Resistance of Iran
(NCRI). The Secretary found that the NCRI is an alter ego
or alias of the PMOI. [FN1] Both petitioners argue that the Secretarys
designation deprives them of constitutionally protected rights without due
process of law. NCRI argues additionally that the Secretary had no statutory
authority to find that it was an alias or alter ego of PMOI. For the reasons
set forth below, we agree with the due process argument, while rejecting the
statutory claim. FN1. A third petitioner, National Council of
Resistance of Iran-United States (NCRI-US) joined the brief
of NCRI, fearful that because the Secretary did not distinguish between the
NCRI and NCRI-US it may have been included in the designation as well. In its
brief to this court, the United States agrees that NCRI-US was not so
designated, and we therefore do not separately consider any claims on behalf of
that entity. Analysis A. The Alias Finding 1. Record Support NCRI launches a two-pronged attack on the Secretarys
designation of it as an alias [*198] [**137] for the PMOI. Its first argument is a
three-step analysis forwarding the proposition that the
Secretarys alias designation of NCRI has no support in the
record. Brief of NCRI at 6. The first step of its reasoning is the
generally uncontroversial proposition that Article III [of the
Constitution] forbids courts from rubberstamping Executive decisions.
id.
at 7. In support of this premise of its syllogism, counsel reminds us that the
courts have rejected interpretations of statutes that cast Article
III judges in the role of petty functionaries
required to enter as a
court judgment an executive officers decision but stripped of
capacity to evaluate independently whether the executive decision is
correct. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 426, 115
S.Ct. 2227, 132 L.Ed.2d 375 (1995). While there will be unreviewable Executive
decisions, and legitimate differences of opinion as to which decisions fall
within the rubberstamp category condemned in Gutierrez, and which are simply
unreviewable decisions, see generally id. at 448-49, 115 S.Ct. 2227 (Souter, J.,
dissenting), we can accept the Councils general proposition for
purposes of this discussion and move to the further steps of its three-part
analysis. In applying the rubberstamping premise to the present designation
of the NCRI as an alias of the PMOI, the Council draws from the Act and from
our application of it in Peoples Mojahedin the principle that
designations under the Act must survive a review in which the court determines
that the designation has substantial support in the administrative
record taken as a whole or in classified information submitted to the
court, 8 U.S.C. § 1189(b)(3)(D), and is not
arbitrary, capricious, an abuse of discretion or otherwise not in
accordance with law. id. § 1189(b)(3)(A). [FN2]
Again, the basic proposition, being drawn from the words of the statute, may be
assumed. Although the Councils brief disputes our prior application
of the test in Peoples Mojahedin and seems to invite us to overrule
that decision, this panel has no power to do so, even if we were inclined to
accept the invitation. See, e.g., LaShawn A. v. Barry, 87 F.3d 1389, 1395
(D.C.Cir.1996) (en banc) (One three-judge panel
does not
have the authority to overrule another three-judge panel of the
court.); United States v. Kolter, 71 F.3d 425, 431 (D.C.Cir.1995)
(This panel would be bound by [a prior] decision even if we did not
agree with it.). FN2. The Council does not rely on the other
requirements of § 1189(b)(3). Proceeding from the two premisesthat the AEDPA does not
require this Court to rubberstamp the Secretarys decision, and that
the process of reviewing without rubberstamping involves applying the
substantial-record-support and-arbitrary-and-capricious standardsthe
NCRI concludes that we must set aside the designations, as there is
no support in the 1999 SAR [Summary of Administrative Report] for the
fundraising allegation. Brief of NCRI at 12. However, that conclusion
depends upon our accepting not only the first two steps of the syllogism, but
also the Councils factual proposition that the only difference
between the 1999 alias designation and the 1997 review in which the Secretary
did not designate the Council as an alias of the PMOI is an FBI
agents hearsay declaration concerning the use of the National Council
of Resistance name in fundraising for the PMOI in the United States. It is at
this point that the Councils reasoning conspicuously founders, even
if we uncritically accept the first two steps. First, we can neither confirm nor deny that the agents
declaration is the only difference in the record support between [**138] [*199] the 1997 and
1999 records. We may under the AEDPA consider the entire record before us
including any classified submissions under § 1189(b)(1)(2).
In fact, the substantial support test relied upon by the
Council expressly empowers us to set aside the designations only if they
lack [ ] substantial support in the administrative record taken as a
whole or in classified information submitted to the courts under paragraph
(2). 8 U.S.C. § 1189(b)(3)(D). As we recognized in Peoples
Mojahedin, we will not, cannot, in a case under this
statute lay out the facts.
182 F.3d at 19. As we further recognized in that decision, our only function in
reviewing a designation of an organization as a foreign terrorist organization
is to decide if the Secretary, on the face of things, had enough
information before her to come to the conclusion that the organizations were
foreign and engaged in terrorism. id. at 25. We see no
greater function for our review of the alias designation. We have, as the
statute mandates, reviewed the administrative record taken as a whole and the
classified information submitted to the court. We conclude that the
Secretarys designation of the National Council of Resistance as an
alias for the PMOI does not lack substantial support and that designation is
neither arbitrary, capricious, nor otherwise not in accordance with law. The Council argues that we must nonetheless strike down the alias
designation in 1999 because the State Department in 1997 determined that the
NCRI was not an alias of PMOI. In the Councils view, this new
designation is barred by the principle that when an executive agency
switches position, it must provide a reasoned explanation for the
change. Brief of NCRI at 16 (citing Motor Vehicle Manufacturers
Assn v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct.
2856, 77 L.Ed.2d 443 (1983)). Again, the principle of law offered by the
Council is incontrovertible, but it does not apply to this case. If the
Secretary had taken the 1997 record and reached a different conclusion,
presumably she would have to offer us some reason for the change. Whether this
reason would have to be disclosed to the appellants is arguable given the role
of classified material in reviews under this statute but she might at least
have been required to explain to the court the reason for the change. However,
the Secretary was not acting on the same record. There is no logical reason for
concluding that there has been no change in either the facts or the
Secretarys knowledge of the facts between the 1997 refusal to
designate and the 1999 designation. In short, on the record at hand, we cannot
find that the Secretary erred in her application of the statute. We therefore
must affirm that designation unless the Secretary overstepped either statutory
or constitutional authority. 2. The Statutory Authority for the Alias Device The Councils second argument is that the Secretary has
made no statutory finding that the NCRI meets the three elements for
designation as a foreign terrorist organization: That is, that the Council is
(1) a foreign terrorist organization, (2) engaging in terrorist activities that
(3) threatens the national security of the United States. Peoples
Mojahedin, 182 F.3d at 19 (construing 8 U.S.C. § 1189).
Only in one sense is this true. That is, the Secretary did not expressly find
that the NCRI is that sort of organization doing those sorts of things under
its own name. The Secretary did, however, find that the PMOI is a foreign
organization engaging in terrorist activities to threaten the national security
of the United States, and that the NCRI and the PMOI are one and *200 **139 the
same. This is tantamount to finding that the NCRI itself meets those criteria.
Logically, indeed mathematically, if A equals B and B equals C, it follows that
A equals C. If the NCRI is the PMOI, and if the PMOI is a foreign terrorist
organization, then the NCRI is a foreign terrorist organization also. The Council argues, without citation of authority, that because
the statute does not expressly allow for an alias designation, the rationale
followed by the Secretary in the present case is beyond her statutory power.
Again, this argument fails. It is true that the Secretary, like any federal
agency, has no power, no capacity to act except by
delegation of authority
from the legislature. Railway
Labor Executives Assn v. Natl Mediation Bd., 29 F.3d 655, 670
(D.C.Cir.1994) (en banc). It is also true that Congress did not expressly
empower the Secretary to use the alias rationale. It is further true, however,
that the delegation from Congress may be either expressed or
implied. id. Here, the power to designate an organization as a foreign
terrorist organization if it commits the necessary sort of terrorist acts under
its own name implies the authority to so designate an entity that commits the
necessary terrorist acts under some other name. It would simply make no sense for us to hold that Congress
empowered the Secretary to designate a terrorist organizationso as to
block any funds which such organization has on deposit with any financial
institution in the United States, to bar its representatives and many or most
of its members from entry into the United States, and to prevent anyone in the
United States from providing material resources or support the
organizationonly for such periods of time as it took such
organization to give itself a new name, and then let it happily resume the same
status it would have enjoyed had it never been designated. If the Secretary has
the power to work those dire consequences on an entity calling itself
Organization A, the Secretary must be able to work the same
consequences on the same entity while it calls itself Organization
B. We cannot presume that Congress intended so vain an act as the
Councils argument would have us conclude. Cf. First National City
Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 103 S.Ct.
2591, 77 L.Ed.2d 46 (1983) (Cuban bank established by Cuban government as
separate judicial entity would not be so treated due to the relationship
between the bank and the Cuban government). As this is the last of the statutory arguments advanced by either
petitioner, the designations before us must stand, unless they fail on
constitutional grounds. B. The Due Process Claim Both petitioners assert that by designating them without notice or
hearing as a foreign terrorist organization, with the resultant interference
with their rights to obtain and possess property and the rights of their
members to enter the United States, the Secretary deprived them of
liberty, or property, without due process of law, in
violation of the Fifth Amendment of the United States Constitution. We agree.
The United Statess defense against the constitutional claims of the
petitioners is two-fold: (1) that the petitioners have no protected
constitutional rights and (2) that even if they have such rights, none are
violated. Both lines of defense fail. 1. The Presence of Petitioners We consider first the eligibility of the petitioners for
constitutional protection. In resisting the claims of the PMOI to due process
protection, the government [*201] [**140] asserts that nearly all of
these arguments are foreclosed by the binding precedent of this Court in the Peoples
Mojahedin published decision, where this Court rejected those same
arguments. Brief of the Secretary at 20. In fact, in that decision
this court rejected only the statutory arguments. We did so after concluding
that the petitioners in that case had established no constitutional entitlement
because a foreign entity without property or presence in this country
has no constitutional rights, under the Due Process Clause or
otherwise. Peoples Mojahedin Org. of Iran v.
Dept of State, 182 F.3d 17, 22 (D.C.Cir.1999). We left the
constitutional questions for such time as a designated foreign terrorist
organization might be able to establish its constitutional presence in the
United States. Therefore, that decision cannot foreclose constitutional claims
asserted by the PMOI in this case unless for some reason it forecloses the
possibility of our concluding that the entities before us now have a presence
in this country. It does not. First, for Peoples Mojahedin to foreclose any
question as to the NCRI, the government must rely on the two entities being
one, a proposition we have been willing to accept for purposes of the alias
designation which brings NCRI within the ambit of the terrorist designation
bestowed upon the PMOI. Even accepting their identity for all purposes, the Peoples
Mojahedin decision cannot foreclose our reconsideration of the presence
question, just as the 1997 failure to designate the NCRI as an alias for the
PMOI did not bar the Secretary from reconsidering that question in 1999. We
accepted, and continue to accept, the governments proposition in
support of the 1999 designation that the record is not the same and the
decision is not the same as in 1997. Therefore, the fact that the PMOI had not
established a constitutional presence in the United States in 1997 under its
own name cannot possibly establish that neither the PMOI nor the NCRI had
established a presence by 1999. And while we accept the governments
proposition that neither the record nor the classified information establishes
a presence for the PMOI under its own name, we cannot agree that the same is
true as to the NCRI. The government admits that the record before us reflects that the
NCRI has an overt presence within the National Press Building in
Washington, D.C., and further recognizes that the NCRI claims an
interest in a small bank account. The government attempts to blow this away by
saying that foreign entities receive
constitutional protections [only] when they have come within the territory of
the United States and developed substantial connections within
this country. Brief of the Secretary at 39
(quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110
S.Ct. 1056, 108 L.Ed.2d 222 (1990)) (bracketed material and emphasis added by
the Secretary). Accepting that quotation, with the bracketed addition of
only at face value, the Secretary asserts that this
evidence in the record would not support a conclusion that the Council has
developed substantial connections. On that basis, the Secretary then asserts
that the NCRI is not entitled to constitutional protection. We reject the
Secretarys position for multiple reasons. First, the Secretarys construction of the quotation from
Verdugo-Urquidez is misleading. In context, the full sentence by the Supreme Court
did contain the word only but not in the same position as
the government brackets it. The High Court rejected the application of several
prior cases Plyler v. Doe, 457 U.S. 202, 102 S.Ct.
2382, 72 L.Ed.2d 786 (1982); Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct.
472, 97 L.Ed. 576 (1953); [*202] [**141] Bridges v. Wixon, 326 U.S. 135, 65 S.Ct.
1443, 89 L.Ed. 2103 (1945); Russian Volunteer Fleet v. United States, 282 U.S. 481, 51 S.Ct.
229, 75 L.Ed. 473 (1931); Wong Wing v. United States, 163 U.S. 228, 16 S.Ct.
977, 41 L.Ed. 140 (1896); and Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct.
1064, 30 L.Ed. 220 (1886)which were offered by an alien who had been
arrested. The Court stated: These cases, however, establish only that aliens receive
constitutional protections when they have come within the territory of the
United States and developed substantial connections with this country. Verdugo-Urquidez, 494 U.S. at 271, 110 S.Ct. 1056 (emphasis
added). The critical adverb limits the application of prior precedent. In Verdugo-Urquidez, the Court rejected
the claims of a Mexican citizen arrested in Mexico to constitutional
protections under the United States Constitution outside the United States.
Neither the word only nor anything else in the holding
purports to establish whether aliens who have entered the territory of the
United States and developed connections with this country but not substantial
ones are entitled to constitutional protections. In any event, we are not undertaking to determine, as a general
matter, how substantial an aliens connections
with this country must be to merit the protections of the Due Process Clause or
any other part of the Constitution. Rather, we have reviewed the entire record
including the classified information and determine that NCRI can rightly lay
claim to having come within the territory of the United States and developed
substantial connections with this country. We acknowledge that in reviewing the
whole record, we have included the classified material. As we noted above and
in Peoples Mojahedin, we will not and cannot disclose the contents
of the record. We note further that the PMOI has made little serious assertion
of an independent presence in the United States. Unfortunately for the cause of
the Secretary, the PMOI does not need one. Insofar as PMOIs claimed
presence is concerned, the United States is now hoist with its own petard. The
Secretary concluded in her designation, which we upheld for the reasons set
forth above, that the NCRI and the PMOI are one. The NCRI is present in the
United States. If A is B, and B is present, then A is present also. The Secretary offers one further argument for the proposition that
petitioners are not entitled to the protection of the Due Process Clause. The
Secretary asserts that the United States exercises the powers of external
sovereignty independent of the affirmative grants of the Constitution as an
inherent attribute of sovereignty under international law. See, e.g., Kleindienst
v. Mandel, 408 U.S. 753,
765, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). As a result of that sovereignty, the
Secretary contends, the government interacts with foreign entities not within
the constitutional framework, but through the system of international law and
diplomacy. Specifically, the Secretary asserts that foreign governmental
entities therefore lie[ ] outside the structure of the
union.&nbsdp; Brief of the Secretary at 35 (quoting Principality
of Monaco v. Mississippi, 292
U.S. 313, 330, 54 S.Ct. 745, 78 L.Ed. 1282 (1934)). This argument need not
detain us long. It is certainly true that sovereign states interact with each
other through diplomacy and even coercion in ways not affected by
constitutional protections such as the Due Process Clause. However, since
neither the PMOI nor the NCRI is a government, none of the authorities offered
by the Secretary have any force. The closest the Secretary can come is to
assert that the Council has described itself as a government in
exile. That untested claim is [*203] [**142] not sufficient by itself to
bring the Council within the ambit of authorities governing the
interrelationship of two sovereigns. If the United States were to recognize the
Council as a government, or even perhaps to deal with it as if it were a
government, then the result might be different. But on the present record, the
Secretary has deemed the Council to be nothing but a foreign terrorist
organization, and it is as such that the Secretary must litigate with that entity. The PMOI and NCRI have entered the territory of the United States
and established substantial connections with this country. The cases
distinguished by the Verdugo-Urquidez Court make plain that both
organizations therefore are entitled to the protections of the Constitution.
See, e.g., Kwong Hai Chew v. Colding, 344 U.S. at 596, 73 S.Ct. 472 (holding that
an alien who permanently resided in the United States was a person
within the protection of the Fifth Amendment and therefore was
entitled to due process); Bridges v. Wixon, 326 U.S. at 148, 65 S.Ct. 1443
(holding that a permanent alien resident was entitled to the First
Amendments guarantees of free speech and press); Russian Volunteer
Fleet v. United States, 282 U.S. at 489, 491-92, 51 S.Ct. 229 (holding that a
Russian corporation whose property was taken by the United States was
an alien friend, and hence deserved protection under the
Fifth Amendments Takings Clause); Wong Wing v. United States, 163 U.S. at 238, 16
S.Ct. 977 (holding that permanent alien residents were entitled to due process
under the Fifth Amendment, and indictment by grand jury under the Sixth
Amendment); and Yick Wo v. Hopkins, 118 U.S. at 369, 6 S.Ct. 1064 (holding that
permanent alien residents deserved protection under the Fourteenth
Amendments Due Process Clause). We therefore proceed to consider
whether the PMOI and NCRI have been deprived of a constitutional right. 2. The Due Process Claims a. The deprivation The government argues that even accepting the proposition that
petitioners are entitled to the protection of the Due Process Clause of the
Fifth Amendment, the designation process and its consequences do not deprive
them of life, liberty, or property. The Secretary contends that this question
is settled by Paul v. Davis, 424 U.S. 693, 96 S.Ct.
1155, 47 L.Ed.2d 405 (1976), in which the Supreme Court held that the
government does not, simply by the act of defaming a person, deprive him of
liberty or property rights protected by the Due Process Clause. id. at 708-10, 96 S.Ct.
1155. However, Paul v. Davis held much more than the point for which the
government asserts it. That case concerned the stigmatizing of plaintiffs by police
officers distributing a flyer listing them among active
shoplifters. In reversing a circuit decision that the dissemination
of such information implicated the Due Process Clause, the High Court entered
the holding upon which the government relies. But in doing so, it analyzed and
distinguished its earlier decision in Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct.
507, 27 L.Ed.2d 515 (1971). In Constantineau, a state statute empowered
a local police chief, without notice or hearing to a citizen, to cause a notice
to be posted in all retail outlets that that person was one who by
excessive drinking exhibited specified undesirable traits,
such as exposing himself or family to want or becoming
dangerous to the peace of the community. id. at 434, 91 S.Ct. 507
(quoting Wis. Stat. § 176.26 (1967)). The Constantineau Court
held that this stigmatizing posting without notice or hearing constituted a
violation of [*204] [**143] the Fifth Amendment Due Process Clause. In explaining its
refusal to follow Constantineau, the Paul Court noted specific language from
the Constantineau holding: Where a persons good name,
reputation, honor, or integrity is at stake because of what the government is
doing to him, notice and opportunity to be heard are essential. 424 U.S. at 708, 96 S.Ct. 1155 (quoting Constantineau, 400 U.S. at 437, 91
S.Ct. 507 (emphasis supplied by the Paul Court)). The Paul Court then went on to note the effects of the excessive
drinking posting beyond stigmatization: That is, the posted individual could
not purchase or even receive by gift alcoholic beverages within the city limits
for one year. Thus, the Paul Court held, the appropriate rule of law is that
where the government issues a stigmatizing posting (or designation) as a result
of which the stigmatized individual is deprived
of a right
previously held under state law, due process is required. id. The deprivation under
the Wisconsin statute as described in Paul v. Davis was the
right to purchase or obtain liquor in common with the rest of the
citizens. id. Like the parties in Constantineau, and unlike the
parties in Paul, petitioners here have suffered more than mere stigmatization.
Rather than being posted as drunkards, the petitioners have been designated as
foreign terrorist organizations under the AEDPA. Rather than being deprived of
the previously held right to purchase liquor, they have been deprived of the
previously held right tofor examplehold bank accounts, and
to receive material support or resources from anyone within the jurisdiction of
the United States. Many people, presumably including the members of the Council
and the PMOI, would consider these to be rights more important than the right
to purchase liquor. We consider at least one of them equally entitled to
constitutional protection. The most obvious rights to be impaired by the Secretarys
designation are the petitioners property rights. Specifically, there
is before us at least a colorable allegation that at least one of the
petitioners has an interest in a bank account in the United States. As they are
one, if one does, they both do. We have no idea of the truth of the allegation,
there never having been notice and hearing, but for the present purposes, the
colorable allegation would seem enough to support their due process claims. Russian
Volunteer Fleet v. United States, 282 U.S. 481, 491-92, 51
S.Ct. 229, 75 L.Ed. 473 (1931), makes clear that a foreign organization that
acquires or holds property in this country may invoke the protections of the
Constitution when that property is placed in jeopardy by government
intervention. This is not to say that the government cannot interfere with that
and many other rights of foreign organizations present in the United States; it
is only to say that when it does so it is subject to the Due Process Clause. The other two consequences of the designation less clearly
implicate interests protected by the Due Process Clause. As to the right of the
members of the organizations to enter the United States, the Secretary argues
with some convincing force that aliens have no right of entry and that the
organization has no standing to judicially assert rights which its members
could not bring to court. See, e.g., Takahashi v. Fish and Game
Commn, 334 U.S. 410,
419, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948). The organizations counter that the
present act limits the ability to travel abroad of its members who are already
in the United States as they know they would be denied readmission. [*205] [**144] As to the third consequence of the
designationthat is the banning of the provision of material support
or resources to the organizationsboth parties again raise colorable
arguments. The petitioners, citing such cases as Aptheker v. Secretary of
State,
378 U.S. 500, 507, 84
S.Ct. 1659, 12 L.Ed.2d 992 (1964), and NAACP v. Alabama, 357 U.S. 449, 78 S.Ct.
1163, 2 L.Ed.2d 1488 (1958), assert that this limitation deprives their members
of First Amendment associational and expressive rights. The government asserts
that the limitation does not affect the ability of anyone to engage in advocacy
of the goals of the organizations, but only from providing material support
which might likely be employed in the pursuit of unlawful terrorist purposes as
of First Amendment protected advocacy. See Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133-34
(9th Cir.2000). On each of the second and third consequences, each side offers
plausible arguments. But we need not decide as an initial matter whether those
consequences invade Fifth Amendment protected rights of liberty, because the
invasion of the Fifth Amendment protected property right in the first
consequence is sufficient to entitle petitioners to the due process of law. b. When process is due As petitioners argue, the fundamental norm of due process clause
jurisprudence requires that before the government can constitutionally deprive
a person of the protected liberty or property interest, it must afford him
notice and hearing. Mathews v. Eldridge, 424 U.S. 319, 334-35, 96
S.Ct. 893, 47 L.Ed.2d 18 (1976). Therefore, petitioners argue that the
Secretary was obligated to give them notice of her intent to make the
declarations of terrorist status and previous nature, and afford them the
opportunity to respond to the evidence upon which she proposed to make those
declarations and to be heard on the proper resolution of the questions. Indeed,
[the Supreme] Court consistently has held that some form of hearing
is required before an individual is finally deprived of a property
interest. id. at 333, 96 S.Ct. 893. At the same time, the Supreme Court has made clear that
[i]t is by now well established that
due process unlike some legal rules, is
not a technical conception with a fixed content unrelated to time, place and
circumstances. Gilbert v. Homar, 520 U.S. 924, 930, 117
S.Ct. 1807, 138 L.Ed.2d 120 (1997) (quoting Cafeteria and Restaurant Workers
v. McElroy, 367 U.S. 886,
895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). Otherwise put, due
process is flexible and calls for such procedural protections as the particular
situation demands. Morrissey v. Brewer, 408 U.S. 471, 481, 92
S.Ct. 2593, 33 L.Ed.2d 484 (1972). Citing Homar, and Morrissey, inter alia, the
United States contends that since due process consists only of that process
which is due under the circumstances, even given our holding that petitioners
are protected by the due process clause, they are not due any procedural
protection that they have not already received. When analyzing the petitioners claims, and the governments
defenses, we are mindful that two distinct questions remain for us to
determine. We have dispensed with the issue as to whether petitioners are
entitled to due process; the questions remaining for us are what due process,
and when. That is, to what procedural devices must the petitioners have access
in order to protect their interests against the deprivations worked by the
statute, and must that access be afforded before the Secretarys
declaration, or is it sufficient under the circumstances that [*206] [**145] such access be
available post-deprivation? The government rightly reminds us that the Supreme
Court established in Mathews v. Eldridge and indeed even before that decision, that identification of the specific dictates
of due process generally requires consideration of three distinct factors:
first, the private interests that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest of the procedure
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the governments interest, including the
function involved and the fiscal and administrative burdens that the additional
or substitute procedural requirements would entail. 424 U.S. at 335, 96 S.Ct. 893 (citing Goldberg v. Kelly, 397 U.S. 254, 263-71, 90
S.Ct. 1011, 25 L.Ed.2d 287 (1970)). Unlike the advocates before us, we do not
have the luxury of blurring the question of what and when. We must determine
what process is sufficient to afford petitioners the protection of the Fifth
Amendment, and whenin terms of pre-deprivation or
post-deprivationthat process must be available. The Secretary reviews the three elements of the balancing inquiry
set forth in Mathews to conclude that the balancing tips decidedly in
favor of the government and justifies postponing review until after the
Secretarys designation. Brief of the Secretary at 46. However,
while we acknowledge that the factors set forth, being drawn as they are from
the Supreme Court case, are necessarily the right ones, we must note that the
government has made little effort to tie the factors to the question of
when as opposed to what due process is
to be afforded. As to the private interest, the government compares the
interests asserted by petitioners in this case with that asserted in United
States v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492,
126 L.Ed.2d 490 (1993). In that case, the Supreme Court considered
whether, in the absence of exigent circumstances, the Due Process
Clause of the Fifth Amendment prohibits the government in a civil forfeiture
case from seizing real property without first affording the owner notice and an
opportunity to be heard. The Court expressly held that it
does. id. at 46, 114 S.Ct. 492. The government argues from the
facts of James Daniel Good Real Property that the importance of the real estate
forfeited in that case dwarfs the importance of the interests of an
organization in, for example, a bank account, and concludes that somehow that
case supports the proposition that the interest to be protected here is not
sufficiently important to warrant due process. This strikes us as a non sequitur. The fact that the Supreme Court
has held that the Fifth Amendment provides protection for a highly important
property interest is at most neutral on the question of whether that Amendment
provides protection to an arguably less important property interest, or even a
concededly less important one. If anything, the decision would seem to weigh in
favor of affording due process protection to the interest asserted by
petitionersit being a property interest as was the interest before
the Supreme Court in James Daniel Good Real Property. As to the second factor, that is, the risk of erroneous
deprivation, the Secretary again offers an analysis of questionable relevance.
The government reminds us that the Secretary must, under the statute, consult
with the Attorney General and the Secretary of Treasury before designating a
foreign terrorist organization, 8 U.S.C. § 1189(c)(4), and
must notify congressional leaders seven days before designating such [*207] [**146] an
organization, id. § 1189(a)(2)(A). While we understand the
Secretarys point that more heads are likely to reach a sounder
result, the application of that facially commonsensical notion to due process
questions is, to put it charitably, unclear. The United States functions with a
unitary executive, created in Article II of the Constitution and constrained by
the Fifth Amendment from depriving anyone protected by that Amendment of life,
liberty or property without due process of law. The involvement of more than
one of the servants of that unitary executive in commencing a deprivation does
not create an apparent substitute for the notice requirement inherent in the
constitutional norm. Neither is it apparent how notice by the Article II branch
of government to representatives of the Article I branch can substitute for
notice to the person deprived. Again, the government has offered nothing that
apparently weighs in favor of a post-deprivational as opposed to
pre-deprivational compliance with due process requirements of the Constitution. As to the third Mathews v. Eldridge
factorthe governments interest, including the
function involved in the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail, 424 U.S. at 319,
96 S.Ct. 893the Secretary rightly reminds us that no
governmental interest is more compelling than the security of the nation.
Haig v. Agee, 453 U.S. 280,
307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981). It is on this very point that the
Secretary most clearly has failed to distinguish between the what of the Due
Process Clause and the when. Certainly the United States enjoys a privilege in
classified information affecting national security so strong that even a
criminal defendant to whose defense such information is relevant cannot pierce
that privilege absent a specific showing of materiality. United States v.
Yunis,
867 F.2d 617, 623- 24 (D.C.Cir.1989) (applying the Classified Information
Procedure Act, 18 U.S.C.App. §§ 1-16 (1982)). As we
will discuss further infra, that strong interest of the government
clearly affects the naturethe what of the due
process which must be afforded petitioners. It is not immediately apparent how
that affects the when of the processthat is,
whether due process may be effectively provided post-deprivation as opposed to
pre-deprivation. In support of the argument that the
foreign-policy/national-security nature of the evidence supports the
constitutional adequacy of a post-deprivation remedy, the Secretary offers our
decision in Palestine Information Office v. Shultz, 853 F.2d 932
(D.C.Cir.1988). The Secretary is correct that in that case, we held that where
the Secretary of State had ordered the closing of an office (arguably, a
foreign ministry) in this country in response to and in an attempt to curb
alleged terrorist activities, the burden on the government of
requiring a hearing before the closing of [the] foreign mission was
sufficient to warrant dispensing with any otherwise available pre-deprivation
hearing. id. at 942. We did so recognizing the
changeable and explosive nature of contemporary
international relations, and the fact that the executive is immediately privy
to information which cannot be swiftly presented to, evaluated by, and acted
upon by the legislature
. id. at 943 (quoting Zemel
v. Rusk,
381 U.S. 1, 17, 85 S.Ct.
1271, 14 L.Ed.2d 179 (1965)). We remain committed to, and indeed bound by, that same reasoning.
It is simply not the case, however, that the Secretary has shown how affording
the organizations whatever due process they are due before their designation as
foreign terrorist organizations and the resulting deprivation [*208] [**147] of right would
interfere with the Secretarys duty to carry out foreign policy. To oversimplify, assume the Secretary gives notice to one of the
entities that: We are considering designating you as a
foreign terrorist organization, and in addition to classified information, we
will be using the following summarized administrative record. You have the
right to come forward with any other evidence you may have that you are not a
foreign terrorist organization. It is not immediately apparent how the foreign policy goals of the
government in general and the Secretary in particular would be inherently
impaired by that notice. It is particularly difficult to discern how such a
notice could interfere with the Secretarys legitimate goals were it
presented to an entity such as the PMOI concerning its redesignation. We
recognize, as we have recognized before, that items of classified information
which do not appear dangerous or perhaps even important to judges might
make all too much sense to a foreign counterintelligence specialist
who could learn much about this nations intelligence-gathering
capabilities from what these documents revealed about sources and
methods. Yunis, 867 F.2d at 623. We extend that recognition to the
possibility that alerting a previously undesignated organization to the
impending designation as a foreign terrorist organization might work harm to
this countys foreign policy goals in ways that the court would not
immediately perceive. We therefore wish to make plain that we do not foreclose
the possibility of the Secretary, in an appropriate case, demonstrating the
necessity of withholding all notice and all opportunity to present evidence
until the designation is already made. The difficulty with that in the present
case is that the Secretary has made no attempt at such a showing. We therefore hold that the Secretary must afford the limited due
process available to the putative foreign terrorist organization prior to the
deprivation worked by designating that entity as such with its attendant
consequences, unless he can make a showing of particularized need. c. What process is due We have no doubt foreshadowed our conclusion as to what process
the Secretary must afford by our discussion of when the Secretary must afford
it. That is, consistent with the full history of due process jurisprudence, as
reflected in Mathews v. Eldridge, [t]he fundamental requirement of due
process is the opportunity to be heard at a meaningful time and in a
meaningful manner. 424 U.S. at 333, 96 S.Ct. 893
(quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85
S.Ct. 1187, 14 L.Ed.2d 62 (1965)). To make plain what we have assumed above,
those procedures which have been held to satisfy the Due Process Clause have
included notice of the action sought, along with the
opportunity to effectively be heard. id. at 334, 96 S.Ct. 893. This, we hold,
is what the Constitution requires of the Secretary in designating organizations
as foreign terrorist organizations under the statute. The Secretary must afford
to the entities under consideration notice that the designation is impending.
Upon an adequate showing to the court, the Secretary may provide this notice
after the designation where earlier notification would impinge upon the
security and other foreign policy goals of the United States. The notice must include the action sought, but need not disclose
the classified information to be presented in camera and ex parte to the court under
the statute. This is within the privilege and prerogative of the executive, and
we do not intend to compel a breach in the [*209] [**148] security which that branch is
charged to protect. However, the Secretary has shown no reason not to offer the
designated entities notice of the administrative record which will in any event
be filed publicly, at the very latest at the time of the courts
review. We therefore require that as soon as the Secretary has reached a
tentative determination that the designation is impending, the Secretary must
provide notice of those unclassified items upon which he proposes to rely to
the entity to be designated. There must then be some compliance with the
hearing requirement of due process jurisprudencethat is, the
opportunity to be heard at a meaningful time and in a meaningful manner
recognized in Mathews, Armstrong, and a plethora of other cases. We do not
suggest that a hearing closely approximating a judicial trial is
necessary. Mathews, 424 U.S. at 333, 96 S.Ct. 893. We do,
however, require that the Secretary afford to entities considered for imminent
designation the opportunity to present, at least in written form, such evidence
as those entities may be able to produce to rebut the administrative record or
otherwise negate the proposition that they are foreign terrorist organizations. It is for this reason that even in those instances when
post-deprivation due process is sufficient, our review under
§ 1189(b) is not sufficient to supply the otherwise absent
due process protection. The statutory judicial review is limited to the
adequacy of the record before the court to support the Secretarys
executive decision. That record is currently compiled by the Secretary without
notice or opportunity for any meaningful hearing. We have no reason to presume
that the petitioners in this particular case could have offered evidence which
might have either changed the Secretarys mind or affected the
adequacy of the record. However, without the due process protections which we
have outlined, we cannot presume the contrary either. Remedy We 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 designations before us. However, we also recognize the
realities of the foreign policy and national security concerns asserted by the
Secretary in support of those designations. We further recognize the timeline
against which all are operating: the two-year designations before us expire in
October of this year. We therefore do not order the vacation of the existing
designations, but rather remand the questions to the Secretary with
instructions that the petitioners be afforded the opportunity to file responses
to the nonclassified evidence against them, to file evidence in support of
their allegations that they are not terrorist organizations, and that they be
afforded an opportunity to be meaningfully heard by the Secretary upon the
relevant findings. While not within our current order, we expect that the Secretary
will afford due process rights to these and other similarly situated entities
in the course of future designations. Conclusion For the reasons set forth above, we order that the
Secretarys designation of the National Council of Resistance of Iran
and the Peoples Mojahedin of Iran as being one foreign terrorist
organization be remanded to the Secretary for further proceedings consistent
with this opinion. |