NATIONAL COUNCIL OF RESISTANCE OF IRAN, PETITIONER v. DEPARTMENT OF STATE AND COLIN L. POWELL, SECRETARY OF STATE, RESPONDENTS
No. 01-1480
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 2, 2004 Decided July 9, 2004
On Petition for Review of Orders of the Department of State
Paul F. Enzinna argued the cause and filed the briefs for petitioner. Martin D. Minsker entered an appearance.
Douglas Letter, Litigation Counsel, U.S. Department of Justice, argued the cause for respondents. With him on the brief was Peter D. Keisler, Assistant Attorney General.
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.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: This is the fourth in a series of related cases concerning the biennial designations by the Secretary of State of the Mojahedin-e Khalq Organization (MEK)1 and its aliases as a foreign terrorist organization (FTO). See People‘s Mojahedin Org. of Iran v. Dep‘t of State, 182 F.3d 17 (D.C. Cir. 1999) (PMOI I); National Council of Resistance of Iran v. Dep‘t of State, 251 F.3d 192 (D.C. Cir. 2001) (NCRI); People‘s Mojahedin Org. of Iran v. Dep‘t of State, 327 F.3d 1238 (D.C. Cir. 2003) (PMOI II); see generally
I.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) empowers the Secretary of State to designate an entity as an FTO whenever the Secretary determines that (1) the entity is foreign; (2) it engages in terrorist activity; and (3) the terrorist activity threatens the security of the United States or its nationals.
An FTO designation visits serious consequences on the affected organization: The Secretary of the Treasury may require financial institutions to freeze any assets of the FTO,
Despite these serious consequences of designation, the governing statute affords suspect entities only “truncated” participation in the administrative process leading to the designation and “quite limited” judicial review after the fact. NCRI, 251 F.3d at 196. As we noted in PMOI I, “unlike the run-of-the-mill administrative proceeding,” “there is [under
(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 [ex parte and in camera], or
(E) not in accord with the procedures required by law.
In 1997, and every two years since, the Secretary has designated MEK an FTO. See 1997 Designation, 62 Fed. Reg. at 52,650; 1999 Designation, 64 Fed. Reg. at 55,112; 2001 Redesignation, 66 Fed. Reg. at 51,089; 2003 Redesignation, 68 Fed. Reg. at 56,861. Starting in 1999, the Secretary added NCRI to the list of designated FTOs, having concluded that NCRI was an alias of MEK. See 1999 Designation, 64 Fed. Reg. at 55,112 (“I hereby designate ... the following organization as a foreign terrorist organization: ... Mujahedin-e Khalq Organization ... also known as National Council of Resistance, also known as NCR.“). NCRI now, for the second time, seeks review of that designation. In NCRI‘s previous challenge—brought jointly with MEK—we con-
As a constitutional matter, however, we determined that the procedures afforded by the statute and employed by the Secretary in arriving at those designations violated both organizations’ due process rights. See id. at 208-09. We did not vacate the Secretary‘s designation as to either MEK or NCRI, but remanded to the Secretary with instructions that each entity be afforded the opportunity to: (1) respond to any part of the Secretary‘s administrative record that is not classified material; (2) file evidence on its own behalf; and (3) be meaningfully heard by the Secretary. Id. at 210.
Both MEK and NCRI availed themselves of these opportunities. NCRI submitted voluminous materials that purported to demonstrate that it was sufficiently independent of MEK that it could not be considered an alias of that organization. On September 24, 2001, the State Department informed MEK and NCRI that the Secretary had decided to leave the 1999 designation of MEK in place but that “no such determination regarding the NCRI as an alias of the MEK is possible at this time.” Letter of Ambassador Francis X. Taylor, Coordinator for Counterterrorism, U.S. Dep‘t of State, at 2 (Sept. 24, 2001). This was shortly followed, on October 5, 2001, by the Secretary‘s redesignation of both MEK as an FTO and NCRI as an alias of MEK. See 2001 Redesignation, 66 Fed. Reg. at 51,089. 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.”
Nearly a year later, the State Department provided for NCRI‘s review additional materials obtained by the FBI in the course of “its long-running investigation of the MEK and NCRI.” Letter of Ambassador Francis X. Taylor, Coordinator for Counterterrorism, U.S. Dep‘t of State, at 1 (Sept. 4, 2002). Within two months, NCRI submitted its response. See Letter of Paul F. Enzinna, Esq. (Nov. 1, 2002). In May 2003, the State Department completed its review process and, on May 24, the Secretary decided to leave in place the 1999 and 2001 “designations of the National Council of Resistance (NCR) and the National Council of Resistance of Iran (NCRI) as foreign terrorist organization aliases of the Mujahedin-e Khalq (MEK).” Action Mem. from William Pope & William H. Taft, IV to the Secretary of State, at 3 (May 22, 2003) (Action Mem.). NCRI now petitions for review of this latest decision.
II.
NCRI‘s primary argument is that the Secretary‘s conclusion that NCRI is an alias of MEK lacks substantial support in the administrative record. NCRI insists that it is an umbrella organization of Iranian dissident persons and groups of which MEK is only a single member, no more powerful than any other. In addressing this contention, we begin with our earlier holding in this action. In NCRI, we concluded—based on the record then presented to us—that the Secretary‘s designation of NCRI as an alias of MEK “does not lack substantial support and ... is neither arbitrary, capricious, nor otherwise not in accordance with law.” 251 F.3d at 199. Although that decision is obviously not determinative of the question before us today—we are now reviewing a record that has since been supplemented both by the Government and NCRI—its holding must nevertheless inform our decision here. Logically, NCRI‘s challenge can succeed only if the new record materials establish its independence from MEK so that we can no longer affirm that “the Secretary, on
To explain our decision, we must first review what it means—in the very particular context of AEDPA—for one organization to be an alias of another. On its previous appeal, NCRI argued that the Secretary lacked authority under AEDPA to designate an entity an FTO based on a finding that it was an alias of another designated FTO. See id. at 200. We rejected that contention, finding that the grant of authority to designate FTOs “implies the authority to so designate an entity that commits the necessary terrorist acts under some other name.” Id. In so doing, we used a mathematics metaphor—specifically, the transitive property—to describe the alias concept: “Logically, indeed mathematically, if A equals B and B equals C, it follows that A equals C. If the NCRI is the [MEK], and if the [MEK] is a foreign terrorist organization, then the NCRI is a foreign terrorist organization also.” Id.; see also id. (“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.‘“). Seizing upon our earlier invocation of the transitive property, NCRI now argues that the administrative record does not demonstrate that “A equals B“—that is, that NCRI equals MEK—and therefore NCRI cannot be an alias of MEK. Indeed, NCRI rightly points out that even the State Department acknowledges that NCRI and MEK are not “one and the same.” See Pet. Reply Br. 4-6.
Implicit in NCRI‘s argument, however, is a mistaken assumption that the alias concept, under AEDPA, is bounded by the transitive property. This reads too much into our mathematical metaphor in NCRI. See Berkey v. Third Ave. Ry. Co., 244 N.Y. 84, 94 (1926) (Cardozo, J.) (“Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.“). While it is
To the contrary, our citation in NCRI to First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983), indicates that we intended the alias concept to have a sweep beyond the transitive. In that case, which concerned a suit brought by Banco Para El Comercio Exterior (BPECE) against First National City Bank for performance under a letter of credit, the Supreme Court held that First National could counterclaim for setoff of the value of its assets that had been seized and nationalized by the Cuban government, notwithstanding the fact that BPECE had been established by the Cuban government as a juridical entity separate from the government. See id. at 623-34. Acknowledging a presumption that “government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such,” id. at 626-27, the Court nevertheless concluded that the normally separate juridical status had to be set aside where the Cuban government was the real party in interest behind BPECE‘S letter of credit claim, id. at 632. The Court, in reaching its conclusion, looked to ordinary principles of agency law, noting that “where a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created, we have held that one may be held liable for the actions of the other.” Id. at 629 (citing NLRB v. Deena Artware, Inc., 361 U.S. 398, 402-04 (1960)). We think those same ordinary principles of agency law are fairly encompassed by the alias concept under AEDPA. When one entity so dominates and controls another that they must be considered principal and agent, it is appropriate, under AEDPA, to look past their separate juridical identities and to treat them as aliases.
The inclusion of these fundamental precepts of agency law within AEDPA‘s alias concept is entirely consistent with—
We need not plumb all the complexities of agency law to determine when an agent, under AEDPA, is the alias of its principal. It is sufficient for our purposes to note that the requisite relationship for alias status is established at least when one organization so dominates and controls another that the latter can no longer be considered meaningfully independent from the former. See, e.g., NLRB v. Deena Artware, Inc., 361 U.S. 398, 403 (1960) (“‘Dominion may be so complete, interference so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent.’ “) (quoting Berkey, 244 N.Y. at 95); Casino Ready Mix, Inc. v. NLRB, 321 F.3d 1190, 1196 (D.C. Cir. 2003) (“‘agent’ is one who agrees to act ‘subject to [a principal‘s] control’ “) (quoting RESTATEMENT (SECOND) OF AGENCY § 1, cmt. a (1958)); cf. Transamerica Leasing, Inc. v. La Republica de Venezuela, 200 F.3d 843, 848 (D.C. Cir. 2000) (“A sovereign is amenable to suit based upon the actions of an instrumentality it dominates because the sovereign and the instrumentality
We thus frame our inquiry here as whether “the Secretary, on the face of things, had enough information before [him] to come to the conclusion” that NCRI was dominated and controlled by MEK. PMOI I, 182 F.3d at 25. 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. While our determination is buttressed by classified information provided to us on an ex parte and in camera basis—the contents of which we cannot discuss—the voluminous unclassified materials contained in the administrative record by themselves and by a comfortable margin provide sufficient support for the Secretary‘s conclusion, given the standard of review. It would serve little purpose to catalogue all the material in the administrative record supporting the conclusion that NCRI is dominated and controlled by MEK, but we will set out below a few of the pieces of information we found to be most compelling. As we do so, it bears repeating that AEDPA does not permit us, in exercising our limited judicial review, to make any “judgment whatsoever regarding whether the material before the Secretary is or is not true,” but allows us to inquire only whether the Secretary “had enough information before [him] to come to the conclusion” that NCRI is dominated and controlled by MEK. Id.
After an extensive investigation of MEK and NCRI, the FBI reported to the State Department that “[i]t is the unanimous view of the FBI personnel who are involved in and familiar with the FBI‘s investigation of the [MEK] that the NCRI is not a separate organization, but is instead, and has been, an integral part of the MEK at all relevant times.” Letter of Charles Frahm, Section Chief, International Terrorism Operations Section II, at 1 (Aug. 28, 2002). Contrary to NCRI‘s portrayal of itself as an umbrella organization, of which the MEK was just one member, the FBI concluded that it is NCRI that is “the political branch” of the MEK. Id. Attach. at 1.
Additionally, earlier investigations of MEK and NCRI had revealed that the two organizations shared an essentially unitary leadership structure. The overall head of MEK, Massoud Rajavi, also leads NCRI. And Rajavi‘s wife, Maryam Rajavi, was selected by NCRI to be Iran‘s President-in-Exile. Id. Attach. at 2; see also id. Attach. at 4 (“The leadership of [MEK] and NCRI is intermixed, and the entities operate in a day-to-day way as a single unit.“). These facts corroborated the FBI‘s earlier conclusion prior to the 2001 designation of NCRI as an FTO that “the NCR/NCRI is in fact controlled by and inseparable from the MEK.” Decl. of Agent Michael Rolince (quoted in Action Mem., Tab 2 at 11).
The State Department acknowledged that “NCRI has submitted numerous affidavits purporting to show that it is not controlled by the MEK and is not an MEK front,” and even credited some of NCRI‘s “subsidiary points.” Action Mem., Tab 2 at 12, 9. The agency, however, concluded that “the evidence developed by the FBI is convincingly to the contrary.” Id. Tab 2 at 12. It may be true that the State Department relied very heavily on the conclusions of the counterterrorism experts of the FBI. As noted above, though, under the narrow powers of judicial review Congress has accorded to us under AEDPA, 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.
III.
This leaves only NCRI‘s constitutional challenges to certain procedures employed in making that designation. Specifically, NCRI argues that due process requires that (1) it be provided access to any classified materials that the Secretary relied upon in making the designation, and (2) it have an adversary hearing before the agency at which it could confront witnesses against it. Both these arguments are foreclosed by our earlier decisions in NCRI and PMOI II. See 251 F.3d at 208-09; 327 F.3d at 1242-43. Concerning NCRI‘s claim that it is entitled to review classified materials, in NCRI we wrote that the government “need not disclose the classified information to be presented in camera and ex parte to the court under the statute.” 251 F.3d at 208. In PMOI II, addressing the same claim, this time brought by MEK, we were even more emphatic: “We reject this contention.... We already decided in [NCRI] that due process required the disclosure of only the unclassified portions of the administrative record.” 327 F.3d at 1242. PMOI II also disposes of NCRI‘s claim for an adversary hearing. There, we held that NCRI established the constitutional baseline for fair process and, the Government having complied with those commands on remand, that “nothing further is due.” Id. at 1243. We reach the same conclusion with regard to NCRI.
The petition for review is denied.