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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 17, 2003 Decided May 9, 2003
No. 01-1465
& No. 01-1476
PEOPLE’S MOJAHEDIN ORGANIZATION OF IRAN,
PETITIONER
v.
DEPARTMENT OF STATE AND
COLIN L. POWELL, SECRETARY OF STATE,
RESPONDENTS
Petitions for Review of Orders of the
Department of State
Jacob A. Stein argued the cause for petitioner. With him
on the briefs were George A. Fisher and Ronald G. Precup.
Douglas Letter, Litigation Counsel, U.S. Department of
Justice, argued the cause and filed the brief for respondent.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS and SENTELLE, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SENTELLE.
Separate concurring opinion filed by Circuit Judge
EDWARDS.
SENTELLE, Circuit Judge: The People’s Mojahedin Organi-
zation of Iran (‘‘PMOI’’ or ‘‘Petitioner’’) seeks review of 1999
and 2001 decisions of the Secretary of State (collectively with
the Department of State ‘‘the Secretary’’ or ‘‘Respondent’’)
designating Petitioner as a foreign terrorist organization.
After review of Petitioner’s various claims that the designa-
tion violates constitutional and statutory rights of Petitioner,
we conclude that the Secretary acted according to law and in
full compliance with the requirements of the Constitution.
We therefore deny the petitions for the reasons set forth
more fully below.
I. Background
We note at the outset that this is PMOI’s third petition to
this court to review designations of the PMOI as a foreign
terrorist organization. See People’s Mojahedin Org. of Iran
v. Dep’t. of State, 182 F.3d 17 (D.C. Cir. 1999) (‘‘PMOI’’);
Nat’l Council of Resistance of Iran v. Dep’t. of State, 251
F.3d 192 (D.C. Cir. 2001) (‘‘NCOR’’). Our opinions disposing
of the prior petitions fully set forth the necessary back-
ground. Nonetheless, in order to lend a full understanding to
the present proceedings, we will briefly review the statute, as
well as the prior petitions and our disposition of them, before
proceeding to the issues immediately before us in this case.
The Anti–Terrorism and Effective Death Penalty Act of 1996
(‘‘Anti–Terrorism Act’’ or ‘‘AEDPA’’), 8 U.S.C. § 1189 (2000),
empowers the Secretary of State to designate an entity as a
‘‘foreign terrorist organization.’’ See generally, PMOI, 182
F.3d 17; NCOR, 251 F.3d 192. This designation causes the
blocking of any funds which the organization has on deposit
with any financial institution in the United States, 18 U.S.C.
3
§ 2339B(a)(2) (2000); exclusion from the United States of
representatives of the organization, 8 U.S.C.
§ 1182(a)(3)(B)(i)(IV) & (V) (2000); and pertinent to our
jurisdiction to review the designations before us, the Act
imposes criminal penalties on any persons ‘‘knowingly pro-
vid[ing] material support or resources’’ to such organization,
18 U.S.C. § 2339B(a)(1). As we noted on one of the earlier
visits, ‘‘[d]espite the seriousness of the consequences’’ of the
designation, the process leading to it is ‘‘a truncated one.’’
NCOR, 251 F.3d at 196. As we set out in more detail on the
two earlier petitions, see PMOI, 182 F.3d at 21–22, and
NCOR, 251 F.3d at 196–97, the Secretary compiles an admin-
istrative record and makes findings based on that record as to
whether the organization meets the statutory criteria for
designation as a foreign terrorist organization. Two features
distinguish this procedure from other administrative proceed-
ings governed by the Administrative Procedure Act (‘‘APA’’),
5 U.S.C. § 557(c) (2000). First, the AEDPA does not express
any right of the aggrieved party to comment on the adminis-
trative record or to present evidence for inclusion in that
record. See PMOI, 182 F.3d at 19; NCOR, 251 F.3d at 196.
Secondly, and most pertinent to the present review, the
statute expressly states that the Secretary is to consider the
classified information in making a designation and that classi-
fied information is not subject to disclosure under the Act
except to a reviewing court ex parte and in camera. 8 U.S.C.
§ 1189(a)(3)(B). A designation under the Act persists for two
years, and the Secretary may re-designate a foreign organiza-
tion as a foreign terrorist organization for succeeding two-
year periods. Id. § 1189(a)(4)(B).
In order for the Secretary to designate a foreign organiza-
tion as a foreign terrorist organization, he must make three
findings based on the administrative record, that:
A. the organization is a foreign organization;
B. the organization engages in terrorist activity TTT;
and
4
C. the terrorist activity or terrorism of the organization
threatens the security of United States nationals or the
national security of the United States.
Id. § 1189(a)(1)(A)-(C). See PMOI, 182 F.3d at 21.
An organization designated as a foreign terrorist organiza-
tion must seek judicial review of the designation in this court
under § 1189(b). That section empowers us only to ‘‘hold
unlawful and set aside’’ designations that we find to be
(A) arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or
immunity;
(C) in excess of statutory jurisdiction, authority, or limi-
tation, or short of statutory right;
(D) lacking substantial support in the administrative rec-
ord taken as a whole or in classified information submit-
ted to the court under paragraph (2), or
(E) not in accord with the procedures required by law.
8 U.S.C. § 1189(b)(3).
The Secretary has made successive designations of Peti-
tioner as a foreign terrorist organization in 1997, 1999, and
2001. Following the 1997 designation, Petitioner sought re-
view in a proceeding that generated our opinion in PMOI. In
that petition, the PMOI argued that the procedure for desig-
nation violated its due process rights to notice and hearing.
We easily disposed of any constitutional claim, holding that
‘‘[a] foreign entity without property or presence in this coun-
try has no constitutional rights under the due process
clauseTTTT’’ PMOI, 182 F.3d at 22. We then proceeded to
consider the rights of the organization under the statute.
This consisted principally of determining the legal sufficiency
of the Secretary’s administrative record to support the three
findings under § 1189(a)(1). As to the first, that the petition-
er was a foreign organization, there was no dispute; it was.
Id. at 24. As to the third, that ‘‘the terrorist activity of the
organization threatens the security of United States nationals
5
or the national security of the United States’’ we held that to
present a nonjusticiable question. Id. at 23. Such questions
concerning the foreign policy decisions of the Executive
Branch present political judgments, ‘‘ ‘decisions of a kind for
which the Judiciary has neither aptitude, facilities nor respon-
sibilities and have long been held to belong in the domain of
political power not subject to judicial intrusion or inquiry.’ ’’
Id. at 23 (quoting Chicago & Southern Air Lines, Inc. v.
Waterman Steamship Corp., 333 U.S. 103, 111 (1948)).
That left us solely with the question of the sufficiency of
the administrative record to support the Secretary’s determi-
nation that ‘‘the organization engages in terrorist activity.’’
We found that record sufficient. Id. at 24–25.
When the Secretary re-designated the PMOI as a foreign
terrorist organization in October of 1999, the organization
again petitioned this court for review. One item in the 1999
designation differed from the 1997 designation. In 1999 the
Secretary’s designation included a finding that the National
Council of Resistance of Iran, which claimed to be an organi-
zation independent of the PMOI, was an alias for the other
organization and that the National Council was therefore a
foreign terrorist organization as well—indeed, the same for-
eign terrorist organization. The National Council also peti-
tioned for review. We consolidated the two petitions. Peti-
tioners again raised the due process question with regard to
the failure of the statute to grant them notice of the content
of the file and an opportunity to be heard. The Secretary’s
finding that the NCOR and the PMOI were one and the same
made a material difference in the result of our review on the
constitutional question. Whereas the record before the court
in PMOI had established that the petitioning organization did
not have property or presence in the United States and was
therefore not entitled to assert due process rights under the
Constitution, on the record before us in the second case the
evidence supported the proposition that the National Council
did have such presence or property and was therefore enti-
tled to assert that claim. See NCOR, 251 F.3d at 201–02.
We therefore considered the merits of the due process claim.
We held that the statute, as applied by the Secretary, did not
6
provide ‘‘the fundamental requirement of due process,’’ that
is, ‘‘the opportunity to be heard at a meaningful time and in a
meaningful manner.’’ Id. at 208 (internal quotations omitted)
(citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
Based on our holding that the designees had not received
the process they were due, we remanded the question to the
Secretary for reconsideration. Id. at 209. We directed that
on remand the Secretary should provide the petitioners ‘‘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 provide them
‘‘an opportunity to be meaningfully heard’’ on the issues
before the Secretary. Id. After the remand, the Secretary
provided the PMOI with an opportunity to respond to the
unclassified evidence, considered all material submitted by
the PMOI along with both the unclassified and classified
material in file, and reentered the 1999 designation on Sep-
tember 24, 2001, followed by a new two-year designation on
October 5, 2001, based on material in the 1997 and 1999
administrative records, together with a new record compiled
in 2001. The PMOI once again petitioned this court for
relief.
II. Analysis
A. Due Process and Sufficiency of Evidence
Petitioner raises several arguments. First, it contends that
its redesignation as a terrorist organization under 8 U.S.C.
§ 1189 is unconstitutional under the Due Process Clause of
the Fifth Amendment of the Constitution because the statute
permitted the Secretary to rely upon secret evidence–the
classified information that respondents refused to disclose
and against which PMOI could therefore not effectively de-
fend. We reject this contention. As noted above, that stat-
ute authorizes designation of a foreign terrorist organization
when the Secretary finds three elements. As to the first,
that is that the organization is a foreign organization, there is
not and cannot be any dispute. The People’s Mojahedin is so
assuredly a foreign organization that until the Secretary’s
7
designation of the NCOR as its alias, it could not even
establish a presence in the United States. See PMOI, 182
F.3d at 22–23. Nothing has changed in that regard since our
prior decisions on the subject.
As to the second element, the PMOI advances a colorable
argument: that the Secretary was able under § 1189(a)(3)(B)
to ‘‘consider classified information in making [this designa-
tion]’’ and that the classified information was not ‘‘subject to
disclosure’’ except to the court ex parte and in camera for
purposes of this judicial review. Petitioner contends that this
violates the due process standard set forth in Abourezk v.
Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986), ‘‘that a court
may not dispose of the merits of a case on the basis of ex
parte, in camera submissions.’’ While colorable, this argu-
ment will not carry the day.
First, we have already set forth in NCOR the due process
standards that the Secretary must meet in making designa-
tions under the statute. We held that the Constitution
requires the Secretary in designating foreign terrorist organi-
zations to provide to the potential designees, ‘‘notice that the
designation is impending.’’ NCOR, 251 F.3d at 208. We
further required that the Secretary must afford the potential
designee an ‘‘opportunity to be heard at a meaningful time
and in a meaningful manner.’’ Id. at 209 (citing Mathews v.
Eldridge, 424 U.S. at 333). The record reflects that the
Secretary complied with our instructions.
Granted, petitioners argue that their opportunity to be
heard was not meaningful, given that the Secretary relied on
secret information to which they were not afforded access.
The response to this is twofold. We already decided in
NCOR that due process required the disclosure of only the
unclassified portions of the administrative record. 251 F.3d
at 207–09. We made that determination informed by the
historically recognized proposition that under the separation
of powers created by the United States Constitution, the
Executive Branch has control and responsibility over access
to classified information and has ‘‘ ‘compelling interest’ in
withholding national security information from unauthorized
8
persons in the course of executive business.’’ Dep’t. of the
Navy v. Egan, 484 U.S. 518, 527 (1988) (quoting Snepp v.
United States, 444 U.S. 507, 509 n.3 (1980)). In the context of
another statutory scheme involving classified information, we
noted the courts are often ill-suited to determine the sensitivi-
ty of classified information. United States v. Yunis, 867 F.2d
617, 623 (D.C. Cir. 1989) (‘‘Things that did not make sense to
[a judge] would make all too much sense to a foreign counter
intelligence specialistTTTT’’). The Due Process Clause re-
quires only that process which is due under the circumstances
of the case. See Morrissey v. Brewer, 408 U.S. 471, 481
(1972) (‘‘due process is flexible and calls for such procedural
protections as the particular situation demands.’’). We have
already established in NCOR the process which is due under
the circumstances of this sensitive matter of classified intelli-
gence in the effort to combat foreign terrorism. The Secre-
tary has complied with the standard we set forth therein, and
nothing further is due.
However, 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. This brings us to Petitioner’s statuto-
ry objection. Petitioner argues that there is not adequate
record support for the Secretary’s determination that it is a
foreign terrorist organization under the statute. However, on
this element, even the unclassified record taken alone is quite
adequate to support the Secretary’s determination. Indeed,
as to this element—that is, that the organization engages in
terrorist activities—the People’s Mojahedin has effectively
admitted not only the adequacy of the unclassified record, but
the truth of the allegation. By statutory definition, ‘‘terrorist
activity’’ is
any activity which is unlawful under the laws of the place
where it is committed (or which, if TTT committed in the
United States, would be unlawful under the laws of the
United States or any State) and which involves any of the
following:
9
(I) The hijacking or sabotage of any conveyance (in-
cluding an aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill,
injure, or continue to detain, another individual in
order to compel a third person (including a govern-
mental organization) to do or abstain from doing any
act as an explicit or implicit condition for the release of
the individual seized or detained.
(III) A violent attack upon an internationally protect-
ed person (as defined in section 1116(b)(4) of Title 18)
or upon the liberty of such a person.
(IV) An assassination.
(V) The use of any—
(a) biological agent, chemical agent, or nuclear
weapon or device, or
(b) explosive or firearm (other than for mere per-
sonal monetary gain),
with intent to endanger, directly or indirectly, the
safety of one or more individuals or to cause substan-
tial damage to property.
(VI) A threat, attempt, or conspiracy to do any of the
foregoing.
8 U.S.C. § 1182(a)(3)(B)(iii) (2000 & Supp. 2003).
By its own admission, the PMOI has
(1) attacked with mortars the Islamic Revolutionary
Prosecutor’s Office; (2) assassinated a former Iranian
prosecutor and killed his security guards; (3) killed the
Deputy Chief of the Iranian Joint Staff Command, who
was the personal military adviser to Supreme Leader
Khamenei; (4) attacked with mortars the Iranian Central
Command Headquarters of the Islamic Revolutionary
Guard Corps and the Defense Industries Organization in
Tehran; (5) attacked and targeted with mortars the
offices of the Iranian Supreme Leader Khamenei, and of
the head of the State Exigencies Council; (6) attacked
with mortars the central headquarters of the Revolution-
10
ary Guards; (7) attacked with mortars two Revolutionary
Guards Corps headquarters; and (8) attacked the head-
quarters of the Iranian State Security Forces in Tehran.1
Were there no classified information in the file, we could
hardly find that the Secretary’s determination that the Peti-
tioner engaged in terrorist activities is ‘‘lacking substantial
support in the administrative record taken as a whole,’’ even
without repairing to the ‘‘classified information submitted to
the court.’’ 8 U.S.C. § 1189(b)(3)(D).
To summarize, the Secretary did not deprive Petitioner of
any process to which it was constitutionally entitled. Even if
the record supported a finding of violation of due process,
such a violation would be harmless as the unaffected portion
of the record is ample to support the determination made.
The remaining element under § 1189(a)(1) is that ‘‘the
terrorist activity or terrorism of the organization threatens
the security of United States nationals or the national securi-
ty of the United States.’’ Id. § 1189(a)(1)(C). The thrust of
Petitioner’s argument is that its allegedly terrorist acts were
not acts of terrorism under the statute, because they do not
meet the requirement of subsection (C). Petitioner argues
that the attempt to overthrow the despotic government of
Iran, which itself remains on the State Department’s list of
state sponsors of terrorism, is not ‘‘terrorist activity,’’ or if it
is, that it does not threaten the security of the United States
or its nationals. We cannot review that claim. In PMOI we
expressly held that that finding ‘‘is nonjusticiable.’’ 182 F.3d
at 23. As we stated in that decision, ‘‘it is beyond the judicial
function for a court to review foreign policy decisions of the
Executive Branch.’’ Id. (citing Chicago & Southern Air
Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111
(1948)). Even if we differed with the analysis of the prior
panel of this court, which we do not, we are bound by its
decision. LaShawn v. Barry, 87 F.3d 1389, 1395 (D.C. Cir.
1996) (one panel of the court does not have the authority to
overrule another). In short, we find neither statutory nor
1We note that Petitioner does not contest the ‘‘unlawfulness’’ of
these acts as required by 8 U.S.C. § 1182(a)(3)(B)(iii).
11
due process errors in the Secretary’s designation of petitioner
as a foreign terrorist organization.
B. Petitioner’s Other Claims
Petitioner raises several other arguments to the effect that
the designation violates its constitutional rights. Those war-
ranting separate discussion fall under the general heading of
First Amendment claims. Petitioner’s argument that its
First Amendment rights have been violated rests on the
consequences of the designation. Petitioner argues that by
forbidding all persons within or subject to the jurisdiction of
the United States from ‘‘knowingly provid[ing] material sup-
port or resources,’’ 18 U.S.C. § 2339B(a)(1), to it as a desig-
nated foreign terrorist organization, the statute violates its
rights of free speech and association guaranteed by the First
Amendment. We disagree.
As the Ninth Circuit held in Humanitarian Law Project v.
Reno, 205 F.3d 1130, 1135 (9th Cir. 2000), the statute ‘‘is not
aimed at interfering with the expressive component of [the
organization’s] conduct but at stopping aid to terrorist
groups.’’ It is conduct and not communication that the
statute controls. We join the Ninth Circuit in observing that
‘‘there is no constitutional right to facilitate terrorism by
giving terrorists the weapons and explosives with which to
carry out their grisly missions.[2] Nor, of course, is there a
right to provide resources with which terrorists can buy
weapons and explosives.’’ Id. at 1133.
Although we have reviewed Petitioner’s other arguments,
none warrants relief, nor separate discussion.
2 Although not raised by either party, at the instruction of the
court the parties addressed the possibility that the 1999 designation
was moot. Both parties agree, as does the court, that a realistic
possibility exists of prosecutions under 18 U.S.C. § 2339A–2339C
for crimes related to the terrorist designation of the PMOI during
the period of that designation so that this controversy escapes
mootness under the ‘collateral consequences’ exception recognized
in, e.g., Public Utilities Comm’n of California v. FERC, 100 F.3d
1451, 1460 (9th Cir. 1996); National Iranian Oil Co. v. Mapco
Int’l., Inc., 983 F.2d 485, 490 (3d Cir. 1992).
12
III. Conclusion
For the reasons set forth above, we conclude that in the
designation and redesignation of the People’s Mojahedin of
Iran as a foreign terrorist organization, the Secretary of
State afforded all the process that the organization was due,
and that this designation violated neither statutory nor consti-
tutional rights of the Petitioner. We therefore deny the
petitions for review.
So ordered.
1
EDWARDS, Circuit Judge, concurring: I concur in the judg-
ment denying the petitions for review. I find it unnecessary,
however, to reach the constitutional due process challenge to
the Secretary’s use of classified evidence to designate peti-
tioner.
The public, unclassified administrative record, including
petitioner’s own submissions to the Secretary, contains more
than enough evidence to support the determination that peti-
tioner engages in terrorist activity. The Government fol-
lowed the procedures that we required in National Council of
Resistance of Iran v. Department of State, 251 F.3d 192 (D.C.
Cir. 2001). Petitioner offered a wealth of submissions to the
Secretary, which the public record now includes. Not only is
there enough evidence in the public record to support the
Secretary’s determination that petitioner engaged in the acts
alleged, there appears to be no dispute over the facts support-
ing that determination. And, for the reasons stated in the
majority opinion, I agree that petitioner’s activities clearly fall
within the statutory definition of ‘‘terrorist activity’’ under 8
U.S.C. § 1182(a)(3)(B)(iii) (2000 & Supp. 2003). Therefore, I
find it unnecessary to reach petitioner’s constitutional due
process challenge to the Secretary’s use of secret, classified
material to bolster its determination.
In sum, because there is substantial, unrefuted evidence in
the public, unclassified record for the designation of petition-
er as a foreign terrorist organization, I agree that the petition
for review should be denied.