nationalsecuritylaw al-Haramain Islamic Foundation v. Dep’t of Treasury (9th Cir. Sep. 23, 2011)

September 23, 2011

* al-Haramain Islamic Foundation v. Dep’t of Treasury (9th Cir. Sep. 23, 2011)

A 9th Circuit panel has determined that the OFAC designation process is unconstitutional in various ways, but that the designation of al-Haramain was appropriate. The opinion is here, and the conclusion follows:

In summary, we hold as follows:

1. Substantial evidence supports the redesignation of AHIF-Oregon as a specially designated global terrorist under EO 13,224, for two of the three reasons advanced by OFAC. We affirm the district court’s ruling to that effect under the Administrative Procedure Act.

2. OFAC may rely on classified information to make a designation decision. But OFAC violated AHIF-Oregon’s Fifth Amendment right to due process by failing to provide constitutionally adequate notice and a meaningful opportunity to respond, and by failing to mitigate the use of classified information by, for example, preparing and disclosing an unclassified summary. Nonetheless, because the outcome of the designation process in this instance would not have been altered by respecting those due process rights, those constitutional errors were harmless and no judicial relief is available to AHIF-Oregon. Again, we affirm the district court’s ruling.

3. OFAC violated AHIF-Oregon’s Fourth Amendment right to be free from unreasonable seizures when it froze that domestic entity’s assets without ever obtaining a warrant. Accordingly, we reverse the district court’s contrary ruling. With respect to any potential remedy, because the parties did not brief the issue and because the district court has not ruled on it, we remand for that court to consider, in the first instance, what relief, if any, may be available to AHIFOregon.

4. MCASO has a First Amendment right to engage in the forms of coordinated advocacy that it seeks, such as holding a joint press conference with AHIF-Oregon. The contentbased prohibitions on MCASO’s speech violate the First Amendment. We therefore reverse the district court’s dismissal of Plaintiffs’ First Amendment claim.

AFFIRMED in part, REVERSED in part, and REMANDED.

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