* People’s Mojahedin Org. of Iran v. U.S. Department of State (D.C. Cir. July 16, 2010) (remanding to State Department for reconsideration of FTO designation)
In an opinion posted here, a D.C. Circuit panel (Tatel and Williams, with separate concurrence by Henderson) holds that the State Department failed to provide adequate process to PMOI in connection with PMOI’s effort to repeal its designation as a foreign terrorist organization. It’s the latest round in seemingly endless litigation regarding the process that the State Department must use when considering designation of an entity entitled to 5th Amendment procedural due process protections.
Key excerpts from the per curiam majority opinion:
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.
*4 This action began in July 2008, when the PMOI filed a petition for revocation of its 2003 Redesignation. The PMOI argued that the 2003 Redesignation should be revoked because of its dramatically changed circumstances since the Secretary’s and this court’s last reviews. It submitted evidence to the Secretary of its changed circumstances, asserting that, since its initial FTO designation in 1997, it had: ceased its military campaign against the Iranian regime and renounced violence in 2001; voluntarily handed over its arms to U.S. forces in Iraq and cooperated with U.S. officials at Camp Ashraf (where all of its members operating in Iraq are consolidated) in 2003; shared intelligence with the U.S. government regarding Iran’s nuclear program; in 2004 obtained "protected person" status under the Fourth Geneva Convention for all PMOI members at Camp Ashraf based on the U.S. investigators’ conclusions that none was a combatant or had committed a crime under any U.S. laws; disbanded its military units and disarmed the PMOI members at Ashraf, all of whom signed a document rejecting violence and terror; and obtained delisting as a terrorist organization from the United Kingdom (the Proscribed Organisations Appeal Commission and the Court of Appeal) in 2008 and from the European Union (the European Court of First Instance) in 2009. The PMOI also thrice supplemented its petition with additional information and letters in support from members of the U.S. Congress, members of the UK and European parliaments and retired members of the U.S. military, among others.
After reviewing an administrative record consisting of both classified and unclassified information, the Secretary denied the PMOI’s petition and published its denial in the Federal Register on January 12, 2009. See 74 Fed.Reg. at 1273-74. She also provided the PMOI with a heavily redacted 20-page administrative summary of State’s review of the record, which summary referred to 33 exhibits, many of which were also heavily or entirely redacted. See Admin. Summ. (Jan. 8, 2009) (Unclassified Version); Revised Admin. Summ. (Apr. 24, 2009) (Unclassified Version). The Secretary’s determination was based on the administrative record, "supporting exhibits and supplemental filings by the MEK in support of the Petition, as well as information from a variety of sources, including the U.S. Intelligence Community." Revised Admin. Summ. 2. She wrote that "in considering the evidence as a whole, the MEK has not shown that the relevant circumstances are sufficiently different from the circumstances that were the basis for the 2003 re-designation," and that "[a]s a consequence, the MEK continues to be a foreign organization that engages in terrorist activity … or terrorism … or retains the capability and intent to" do so. Id.; see 74 Fed.Reg. at 1273-74. Nevertheless she also noted:
In light of the evidence submitted by the MEK that it has renounced terrorism and the uncertainty surrounding the MEK presence in Iraq, the continued designation of the MEK should be re-examined by the Secretary of State in the next two years even if the MEK does not file a petition for revocation.
*5 Revised Admin. Summ. 20. Although the Secretary informed the PMOI of her decision the day before it was published in the Federal Register, she did not provide the organization any unclassified material on which she intended to rely. See Resp’ts’ Br. 20 (after denying revocation petition "[t]he State Department … provided to the PMOI an unclassified summary of the evidence in the record and the agency’s analysis of the issues").
The PMOI filed a timely petition for review on February 11, 2009 under 8 U.S.C. § 1189(c). It asks us to vacate the Secretary’s decision and remand with instructions to revoke its FTO designation based on a lack of substantial support in the record. Alternatively, the PMOI asks us to vacate its designation on the ground that the Secretary did not comply with the due process requirements set forth in our earlier decisions by failing to provide it with advance notice of her proposed action and the unclassified record on which she intended to rely, as well as by failing to provide it with any access to the classified record.
State submitted its classified administrative record on March 30, 2009 for ex parte and in camera review under 8 U.S.C. § 1189(c)(2); it subsequently filed a redacted, unclassified version in August 2009. In filing the latter document, State noted that it intended to file additional documents as soon as its declassification review was finished. It later supplemented the record with newly declassified material 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. [FN3]
FN3. 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 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).
[O]ur cases require the Secretary to notify the PMOI of the unclassified material "upon which [s]he propose[d] to rely" and to allow the PMOI "the opportunity to present, at least in written form, such evidence as [it] may be able to produce to rebut the administrative record or otherwise negate the proposition that" it is an FTO. NCRI I, 251 F.3d at 209.
*6 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. [FN4] 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….").
FN4. 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.
At oral argument, State suggested that the PMOI, now in possession of the unclassified portions of the record (including the newly declassified material), may go back to the Secretary and provide evidence to rebut it. See Arg. Tr. 26:19-20. We think a better approach is the one the then-Secretary took after remand in NCRI I, when, apparently faced with a similar time crunch, he made a designation that was to be reevaluated once he fully reviewed the supplemented record. See NCRI II, 373 F.3d at 155 ("At that time, the State Department assured NCRI that although ‘the present situation … requires continued designation of [NCRI] as an alias of MEK for now,’ upon the completion of review of NCRI’s submissions, ‘the Secretary will make a de novo determination in light of the entire record, including the material you have submitted.’ " (quoting Letter of Ambassador Francis X. Taylor, Coordinator for Counterterrorism, U.S. Dep’t of State, at 1 (Oct. 5, 2001))).
*8 Our reluctance to accept State’s "no harm, no foul" theory is greater in light of the fact that we are unsure what material the Secretary in fact relied on or to what portion of 8 U.S.C. § 1189(a)(1)(B) she found it relevant. While "it is emphatically not our province to second-guess the Secretary’s judgment as to which affidavits to credit and upon whose conclusions to rely," the Congress has required us to determine "whether the ‘support’ marshaled for the Secretary’s designation was ‘substantial.’ " NCRI II, 373 F.3d at 159 (quoting 8 U.S.C. § 1889A(b)(3)(D)). Some of the reports included in the Secretary’s analysis on their face express reservations about the accuracy of the information contained therein. See, e.g., Suppl. Admin. R., MEK-11 (describing "possible plans to attack [the] international zone in Baghdad" but conceding that "the ultimate sources of the information was [sic] unknown and as such, their access, veracity, and motivations were unknown"). Similarly, while including reports about the Karbala suicide attack plot described above, the Secretary did not indicate whether she accepted or discredited the reports and we do not know whether the PMOI can rebut the reports.
In other instances, the Secretary cited a source that it seemed to regard as credible but did not indicate to what part of the statute the source’s information was relevant. For example, her analysis described a federal grand jury indictment alleging that MEK has engaged in fraud in fundraising operations and she faulted the PMOI for failing to discuss its finances in its submission to the Secretary. Suppl. Admin. R. 11. It is unclear, however, whether the Secretary believes that fundraising under false pretenses is direct evidence of terrorist activity or instead bears on the PMOI’s "capability" to engage in terrorist activity in the future or its "intent" to do so. 8 U.S.C. § 1189(a)(1)(B). While we will not substitute our judgement for that of the Secretary in deciding which sources are credible, we must determine whether the record before her provides "a sufficient basis for a reasonable person to conclude" that the statutory requirements have been met. Kahane Chai, 466 F.3d at 129 (citing PMOI I, 182 F.3d at 25). Without knowing whether, or how, the Secretary evaluated the record material, we are unable to do so.
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:
*9 First, as earlier explained, the Secretary should indicate in her administrative summary which sources she regards as sufficiently credible that she relies on them; and she should explain to which part of section 1 189(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, [FN7] AEDPA does not allow access to the classified record as it makes clear that classified material "shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review." 8 U.S.C. § 1189(a)(4)(B)(iv)(II); see id. § 1189(c)(2) (providing for court’s "ex parte and in camera review" of "classified information used in making the designation"). Our cases under AEDPA have suggested that this procedure can satisfy due process requirements, at least where the Secretary has not relied critically on classified material and the unclassified material provided to the FTO is sufficient to justify the designation. See NCRI II, 373 F.3d at 159-60; PMOI II, 327 F.3d at 1243 ("We already decided in [NCRI I ] that due process required the disclosure of only the unclassified portions of the administrative record.") (emphasis in original); NCRI I, 251 F.3d at 202, 208-09 ("We acknowledge that in reviewing the whole record, we have included the classified material[, but] … we will not and cannot disclose the contents of the record," which "is within the privilege and prerogative of the executive"); see also Jifry v. Fed. Aviation Admin., 370 F.3d 1174, 1182, 1184 (D.C .Cir.2004) (pilot denied licensure has no right to access to classified record because "[t]he due process protections afforded … parallel those provided under similar circumstances in [NCRI I and PMOI II ], and are sufficient to satisfy our case law"); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 164 (D.C.Cir.2003) ("HLF’s complaint, like that of the Designated Foreign Terrorists Organizations in [NCRI I and PMOI II ], that due process prevents its designation [under a different law] based upon classified information to which it has not had access is of no avail."). We note, however, that none of the AEDPA cases decides whether an administrative decision relying critically on undisclosed classified material would comport with due process because in none was the classified record essential to uphold an FTO designation. But they do indicate that, for the purpose of today’s remand, affording PMOI an opportunity to review and rebut the unclassified portions of the record, coupled with the Secretary’s assurance that she has evaluated the material–and the sources therefor–that she relied on to make her decision, may be sufficient to provide the requisite due process.
FN7. 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.
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.
*10 So ordered.