People's Mojahedin Organization v. United States Department of State

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2010 Decided July 16, 2010

No. 09-1059

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

On Petition for Review of an Order
of the Department of State

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.
 2

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),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 twice—once with the PMOI and once on its own.
See NCRI I, 251 F.3d at 197; Nat’l Council of Resistance of Iran

1
Because the petitioner in this case is the People’s Mojahedin
Organization of Iran, or the PMOI, we refer to the MEK and all
associated aliases as the PMOI.
 3

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
 4

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:
 5

(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 requirement—that the organization’s
activities threaten U.S. nationals or national security—presents
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
 6

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
 7

decision issued, the Secretary had already redesignated the
PMOI again in October 2003.2 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

2
The Secretary designated the Mujahedin-e Khalq Organization,
along with the following aliases: Mujahedin-e Khalq; MEK; MKO;
People’s Mujahedin Organization of Iran (including its U.S. office and
all other offices worldwide); PMOI; Organization of the People’s Holy
Warriors of Iran; Sazeman-e Mujahedin-e Khalq-e Iran; National
Council of Resistance (including its U.S. office and all other offices
worldwide); NCR; National Council of Resistance of Iran (including
its U.S. office and all other offices worldwide); NCRI; National
Liberation Army of Iran; NLA; and the Muslim Iranian Student’s
Society. 2003 Redesignation.
 8

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
 9

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
 10

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
twice—once 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.3

3
Among the disclosures in the declassified material: “the MEK
trained females at Camp Ashraf in Iraq to perform suicide attacks in
Karbala”; “the MEK solicits money under the false pretext of
humanitarian aid to the Iranian population”; “an August 2008 U.S.
Intelligence Community Terrorist Threat Assessment, clearly states
that the MEK retains a limited capability to engage in terrorist activity
or terrorism”; “[t]he MEK publicly renounced violence in 2001, but
 11

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

limited intelligence reporting indicates that the group has not ended
military operations, repudiated violence, or completely or voluntarily
disarmed”; “[t]he [intelligence community] assesses that although
there has not been a confirmed terrorist attack by the MEK since the
organization surrendered to Coalition Forces in 2003, the MEK retains
a limited capability and the intent to use violence to achieve its
political goals”; and “UN inspectors say that much of the information
provided to the UN by the MEK about Iran’s nuclear program has a
political purpose and has been wrong.” Suppl. Admin. R. (filed Oct.
27, 2009).
 12

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.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 compiling—an 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

4
Although we do not require advance notification of the
Secretary’s decision upon an adequate showing that “earlier
notification would impinge upon the security and other foreign policy
goals of the United States,” NCRI I, 251 F.3d at 208, State does not
suggest the Secretary had this concern.
 13

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.5

5
At oral argument, State noted that, unlike the procedure
originally set forth in AEDPA, whereby the Secretary compiled a new
administrative record on a biennial basis, today no record is compiled
until the FTO files a petition for revocation. See Arg. Tr. 29-30. This
leaves the Secretary only 180 days from that filing to contact multiple
defense and intelligence agencies, compile the administrative record
 14

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 offered—not even evidence refuting whatever unclassified
material the Secretary may have relied on—could 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 209.6

and make a determination—and thus inadequate opportunity to
complete the “extremely difficult and time consuming process” of
providing declassified portions of the record in advance of her
decision. Id. 25:20-21. Time constraints, however, cannot override
constitutional constraints.
6
In NCRI I, by declining to assume that the PMOI could not have
changed the Secretary’s mind in the absence of due process
 15

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

protections, we cast doubt on whether any denial could be found
harmless, perhaps because a convincing response by the FTO to the
unclassified material might affect the Secretary’s view not only of that
evidence but of the classified material as well. See 251 F.3d at 209.
In other words, because of the due process denial, we declined to
consider whether the record nevertheless substantially supported the
Secretary’s determination. And while it is true that we held a similar
due process denial harmless in Kahane Chai, we did so only because
the government, in response to the petitioners’ objections, “offered to
do and in 2004 did a de novo determination of their status” with the
attendant “opportunity to inspect and to supplement the record upon
which the review would be based.” 466 F.3d at 132.
 16

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.
 17

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
 18

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,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

7
State agrees that “only legitimately classified information should
be redacted from the public version of the Administrative Record” and
thus has reviewed and disclosed all material that it believes can be
safely declassified consistent with national security interests. Resp’ts’
Br. 41.
 19

(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
material—and the sources therefor—that 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.1 See id.

1
For example, in PMOI II we rejected the contention that the
PMOI’s redesignation under AEDPA was unconstitutional because
“the Secretary relied on secret information to which [the PMOI was]
not afforded access”: “We have already established in [NCRI I] the
process which is due under the circumstances of this sensitive matter
of classified intelligence in the effort to combat foreign terrorism. The
Secretary has complied with the standard we set forth therein, and
nothing further is due.” PMOI II, 327 F.3d at 1242-43. The court
 2

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.2 While these decisions are not under AEDPA, they treat

went on to note that “even if we err in describing the process due, even
had the Petitioner been entitled to have its counsel or itself view the
classified information, the breach of that entitlement has caused it no
harm.” Id. at 1243. But I read the subjunctive phrase beginning with
“even if” as an alternative holding which means both holdings
constitute precedent. See Natural Res. Def. Council, Inc. v. Nuclear
Regulatory Comm'n, 216 F.3d 1180, 1189 (D.C. Cir. 2000) (“‘[W]here
there are two grounds, upon either of which an appellate court may
rest its decision, and it adopts both, the ruling on neither is obiter
[dictum], but each is the judgment of the court, and of equal validity
with the other.’” (quoting Dooling v. Overholser, 243 F.2d 825, 828
(D.C. Cir. 1957) (internal quotations omitted))).
2
See Jifry v. Fed. Aviation Admin., 370 F.3d 1174, 1184 (D.C.
Cir. 2004) (“While the pilots protest that without knowledge of the
specific evidence on which TSA relied, they are unable to defend
against the charge that they are security risks, the court has rejected
the same argument in the terrorism listing cases. The due process
protections afforded to them 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) (“That the designation comes under an
Executive Order issued under a different statutory scheme makes no
difference. HLF's complaint, like that of the Designated [FTOs] in the
earlier cases, that due process prevents its designation based upon
classified information to which it has not had access[,] is of no
avail.”).
 3

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.