Lead Opinion
Opinion for the court filed PER CURIAM.
Concurring opinion filed by Circuit Judge HENDERSON.
This case is the fifth in a series of related actions challenging -the United States Secretary of State’s designation of the Mojahedin-e Khalq Organization (MEK) and its aliases as a Foreign Terrorist Organization (FTO). The MEK, also called the People’s Mojahedin Organization of Iran (PMOI),
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.
I.
Although our earlier decisions detail the statutory scheme and the PMOI’s prior designations, we briefly review them again together with the events leading to this action.
We begin by describing the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which was amended as part of the Intelligence Reform and Terrorist Prevention Act of 2004, Pub.L. No. 108-458, § 7119, 118 Stat. 3638, 3801 (2004). Under AEDPA, the Secretary may designate an entity as an FTO if she determines that (A) the entity is foreign, (B) it engages in “terrorist activity” or “terrorism” and (C) the terrorist activity threatens the security of the United States or its nationals. 8 U.S.C. § 1189(a)(1). “Terrorist activity” is defined in section 1182(a)(3)(B)(iii) and includes hijacking, sabotage, kidnapping, assassination and the use of explosives, firearms, or biological, chemical or nuclear weapons with intent to endanger people or property, or a threat or conspiracy to do any of the foregoing. To “engage in terrorist activity” involves, among other acts, soliciting funds or affording material support for terrorist activities, id. § 1182(a)(3)(B)(iv), while “terrorism” means “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents,” 22 U.S.C. § 2656f(d)(2).
The FTO designation has at least three consequences: the Secretary of the United States Treasury Department may freeze the FTO’s assets, 8 U.S.C. § 1189(a)(2)(C); FTO members are barred from entering the United States, id. § 1182(a)(3)(B)(i)(IV), (V); and those who knowingly provide “material support or resources” to an FTO are subject to criminal prosecution, 18 U.S.C. § 2339B(a)(l). See Kahane Chai v. Dep’t of State,
(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.
8 U.S.C. § 1189(c)(3). This standard of review applies only to the first and second requirements, namely, (1) that the organization is foreign and (2) that it engages in terrorism or terrorist activity or retains the capability and intent to do so. We have held that the third requirement — that the organization’s activities threaten U.S. nationals or national security — presents an unreviewable political question. PMOI I,
As originally enacted, AEDPA permitted an FTO designation to remain in effect for only two years, which required the Secretary at the end of that time period to either compile a new administrative record and renew the designation or allow it to lapse. See 8 U.S.C. § 1189(a)(4)(A)-(B) (2003). Her determination was subject to review in this court. Id. § 1189(b) (2003). The Secretary first designated the PMOI as an FTO under AEDPA in 1997 and made successive designations in 1999, 2001 and 2003. See Designation of Foreign Terrorist Organizations, 62 Fed.Reg. 52,650 (Oct. 8, 1997) (1997 Designation); Designation of Foreign Terrorist Organizations, 64 Fed.Reg. 55,112 (Oct. 8, 1999) (1999 Designation); Redesignation of Foreign Terrorist Organizations, 66 Fed.Reg. 51,088, 51,089 (Oct. 5, 2001) (2001 Redesignation); Redesignation of Foreign Terrorist Organizations, 68 Fed.Reg. 56,860, 56,861 (Oct. 2, 2003) (2003 Redesignation). In PMOI I, we denied the PMOI’s petition for review of the initial 1997 Designation.
On remand, the Secretary allowed the PMOI and the NCRI to respond to the unclassified portions of the Secretary’s administrative record and also to supplement it. After reviewing the record so comprised, the Secretary re-entered the 1999 Designation as to the PMOI on September 24, 2001, see Letter of Ambassador Francis X. Taylor, Coordinator for Counterterrorism, U.S. Dep’t of State, at 2 (Sept. 24, 2001), and began a new two-year designation the following month as to both the PMOI and the NCRI, see 2001 Redesignation. We denied the PMOI’s petition for review. See PMOI II,
Shortly after NCRI II, and while the 2003 Redesignation of the PMOI was still in effect, the Congress lessened the Secre
C.
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.
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 reexamined by the Secretary of State in the next two years even if the MEK does not file a petition for revocation.
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.
Ordinarily, we would be required to decide whether to set aside the Secretary’s denial of the PMOI’s revocation petition on the ground that her conclusion that the PMOI “engages in terrorist activity ... or terrorism ... or retains the capability and intent to engage in terrorist activity or terrorism,” Revised Admin. Summ. 2-3, “lack[s] substantial support in the administrative record taken as a whole or in classified information submitted to the court.” 8 U.S.C. § 1189(c)(3)(D).
Here, however, we need not determine the adequacy of the record because, as the PMOI argues, our review “is not sufficient to supply the otherwise absent due process protection” of notice to the designated organization and an opportunity for a meaningful hearing. NCRI I,
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.
State does not deny that the Secretary failed to provide the type of notice specified in NCRI I. But it argues that she complied with our precedent well enough in light of the statutory scheme as altered by the 2004 AEDPA amendments and the “flexible” nature of due process. Arg. Tr. 22:18-21; see NCRI I,
We disagree on both counts. Nothing in the 2004 amendments provides a basis for relaxing the due process requirements we outlined for the redesignation decision at issue in NCRI I. Although phrased slightly differently, the Secretary’s fundamental inquiry is the same for both redesignation under the old statute and revocation under the new. Compare 8 U.S.C. § 1189(a)(4)(B) (2003) (redesignation appropriate if “relevant circumstances” initially warranting designation “still exist”) with id. § 1189(a)(6) (revocation appropriate if “circumstances that were the basis for the designation have changed in such a manner as to warrant revocation”). So, too, is our standard of review the same under both versions of the statute whether we review a “designation,” a “redesignation” or a “petition for revocation.” See id. § 1189(c)(3). And while the amended version of the statute puts the burden on an FTO to “provide evidence” of changed circumstances, see id. § 1189(a)(4)(B)(iii), the Secretary must still compile a record supporting the continued designation, see id. § 1189(a)(6)(B). In short, we have held due process requires that the PMOI be notified of the unclassified material on which the Secretary proposes to rely and an opportunity to respond to that material before its redesignation; nothing in the amended statute suggests that this protection is any less necessary in the revocation context.
Nor do we find the Secretary’s failure to provide the required notice and unclassified material in advance of her decision harmless because the information at the “heart” of the Secretary’s decision is classified and could not have been shared in any event. Resp’ts’ Br. 45-46. State’s characterization notwithstanding, at argument it acknowledged that the Secretary’s decision was based not on “just the classified information” but rather “on the record as a whole.” Arg. Tr. 31:24-32:1-7; see Suppl. Admin. R. 19 (“In considering the body of evidence as a whole, intelligence and national security experts conclude that the MEK has not demonstrated that the circumstances that were the basis for the original designation have changed in such a manner as to warrant revocation.”). Hence, State asks us to assume that nothing the PMOI would have offered — not even evidence refuting whatever unclassified material the Secretary may have relied on — could have changed her mind. We explicitly rejected this argument in NCRI I. See
To illustrate, during the briefing in this case, the Secretary twice supplemented the unclassified record with formerly classified materials. These disclosures include the statement that PMOI members planned suicide attacks in Karbala. Because it learned of this information only after it petitioned for judicial review, the PMOI attempts to distinguish and discredit it for the first time before us. See Pet’r’s Reply Br. 21 (calling allegations “so manifestly implausible that they earned no mention in the Government’s brief’). Citing PMOI I,
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,
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,
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 fund-raising 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
ill.
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.”
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 1189(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,
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.
So ordered.
Notes
. Because the petitioner in this case is the People’s Mojahedin Organization of Iran, or the PMOI, we refer to the MEK and all associated aliases as the PMOI.
. The Secretary designated the Mujahedin-e Khalq Organization, along with the following aliases: Mujahedin-e Khalq; MEK; MKO; People’s Mujahedin Organization of Iran (including its U.S. office and all other offices worldwide); PMOI; Organization of the People's Holy Warriors of Iran; Sazeman-e Mujahedin-e Khalq-e Iran; National Council of Resistance (including its U.S. office and all other offices worldwide); NCR; National Council of Resistance of Iran (including its U.S. office and all other offices worldwide); NCRI; National Liberation Army of Iran; NLA; and the Muslim Iranian Student’s Society. 2003 Redesignation.
. 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 ter
. 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,
. At oral argument, State noted that, unlike the procedure originally set forth in AEDPA, whereby the Secretary compiled a new administrative record on a biennial basis, today no record is compiled until the FTO files a petition for revocation. See Arg. Tr. 29-30. This leaves the Secretary only 180 days from that filing to contact multiple defense and intelligence agencies, compile the administrative record and make a determination — and thus inadequate opportunity to complete the "extremely difficult and time consuming process” of providing declassified portions of the record in advance of her decision. Id. 25:20-21. Time constraints, however, cannot override constitutional constraints.
. In NCRI I, by declining to assume that the PMOI could not have changed the Secretary’s mind in the absence of due process protections, we cast doubt on whether any denial could be found harmless, perhaps because a convincing response by the FTO to the unclassified material might affect the Secretary’s view not only of that evidence but of the classified material as well. See
. Slate 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.
Concurrence Opinion
concurring:
We are to uphold the Secretary’s determination unless it “lack[s] substantial support in the administrative record taken as a whole or in classified information submitted to the court." 8 U.S.C. § 1189(c)(3)(D) (emphasis added). In my view, the classified portion of the administrative record provides “substantial support” for her determination that the PMOI either continues to engage in terrorism or terrorist activity or retains the capability and intent to do so and, consequently, for her denial of the PMOI’s revocation petition. Further, our cases have repeatedly emphasized what the statute makes clear: the PMOI enjoys no right to access classified material the Secretary relied on. See NCRI I,
According to the Secretary, however, as in NCRI I her decision was based on both classified and unclassified material. Because the PMOI had no opportunity to access/rebut the unclassified portions before the Secretary’s decision was final, it is not clear that she would have denied the revocation petition had that material been made available to the PMOI earlier. In addition, the Secretary herself appears to have recognized the ambiguity of the record by recommending a sua sponte reexamination of the PMOI’s status in two years. Revised Admin. Summ. 20 (“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.”). In short, were I confident that she had evaluated and relied on what I consider to be the substantial support contained in the classified record only (along with the sources therefor), I would affirm. Because I am not, I join my colleagues in remanding to the Secretary.
. For example, in PMOI II we rejected the contention that the PMOI's redesignation under AEDPA was unconstitutional because “the Secretary relied on secret information to which [the PMOI was] not afforded access”: “We have already established in [NCRI /] the process which is due under the circumstances of this sensitive matter of classified intelligence in the effort to combat foreign terrorism. The Secretary has complied with the standard we set forth therein, and nothing further is due.” PMOI II,
. See Jifry v. Fed. Aviation Admin.,