Opinion for the Court filed by Circuit Judge SENTELLE.
Two organizations, the National Council of Resistance of Iran and the People’s Mojahedin of Iran, petition for review of the Secretary’s designation of the two as constituting a “foreign terrorist organiza
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 People's Mojahedin Org. of Iran v. Dep't of State,
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 Secretary's duties in "APA-like language." People's Mojahedin,
Following the administrative designation there is judicial review. 8 U.S.C. § 1189(b). While that statutory proce-clure, 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." People's Mojahedin,
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
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 un-' der review, we consider two petitions under § 1189(b).
The Petitions
By notice of October 8, 1999, the Secretary of State, inter alia, redesignated petitioner People’s 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 redesig-nation 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 People’s Mojahedin Org. of Iran v. Dep’t of State,
Analysis
A. The Alias Finding
1. Record Support
NCRI launches a two-pronged attack on the Secretary’s designation of it as an alias
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 People's 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~.
Proceeding from the two premises-that the AEDPA does not require this Court to rubberstamp the Secretary's decision, and that the process of reviewing without rub-berstamping involves applying the substantial-record-support and-arbitrary-and-capricious standards-the 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 Council's 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 agent's 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 Council's reasoning conspicuously founders, even if we uncritically accept the first two steps.
First, we can neither confirm nor deny that the agent's declaration is the only difference in the record support be
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 Council’s 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 Ass’n v. State Farm Mut. Auto. Ins. Co.,
2. The Statutory Authority for the Alias Device
The Council’s 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. People’s Mojahedin,
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’ Ass’n v. Nat’l Mediation Bd.,
It would simply make no sense for us to hold that Congress empowered the Secretary to designate a terrorist organization-\so 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 organization-only 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 Council’s argument would have us conclude. Cf. First National City Bank v. Banco Para El Comercio Exterior de Cuba,
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 States’s 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
First, for People’s 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 them identity for all purposes, the People’s 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 government’s 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 government’s 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,
First, the Secretary’s 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,
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,
In any event, we are not undertaking to determine, as a general matter, how “substantial” an alien’s 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 People’s 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 PMOI’s 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,
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
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,
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,
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,
Where a person’s 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.
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 to — for example— hold 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 Secretary’s designation are the petitioners’ property rights. Specifically, there is before us at least a color-able 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,
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 Comm’n,
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,
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,
When analyzing the petitioners’ claims, and the government’s 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 Secretary’s declaration, or is it sufficient under the circumstances that
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 government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.
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 Secretary’s 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,
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 petitioners — it 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 Treasurj before designating a foreign terrorist organization, 8 U.S.C. § 1189(c)(4), and must notify congressional leaders seven days before designating such
As to the third Matheivs v. Eldridge factor — “the government’s interest, including the function involved in the fiscal and administrative burdens that the additional or substitute procedural requirement would entail,”
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,
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 depriva
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 Secretary’s 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 nation’s intelligence-gathering capabilities from what these documents revealed about sources and methods.” Ym-is,
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. Eldndge, “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ”
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
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 Secretary’s 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 Secretary’s 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 Secretary’s designation of the National Council of Resistance of Iran and the People’s Mojahedin of Iran as being one foreign terrorist organization be remanded to the Secretary for further proceedings consistent with this opinion.
Notes
. 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.
. The Council does not rely on the other requirements of~ 1189(b)(3).