*1 Airport congestion tween 1996 and 2008: PEOPLE’S MOJAHEDIN significantly. explaining
had increased Amendments, it the need for the detailed ORGANIZATION OF IRAN, specific airports congestion and recount- Petitioner findings ed the Federal Aviation v. congestion. Administration about chronic UNITED STATES DEPARTMENT OF 40,431-32 Fed.Reg. (citing See 73 Fed- Hillary Clinton, STATE and Rodham Administration, eral Aviation Capacity Capacity in her Airspace System Needs in the National Respondents. An Analysis Airports 2007-2025: Metropolitan Opera- Area Demand and No. 09-1059. 2007)). Capacity tional (May the Future United States Appeals, Court of It that congestion pricing reasoned “could District of Columbia Circuit. encourage more efficient use of [congest- airports” explained increasing ed] how Argued Jan. 2010. airport’s allowing rate base and it to July Decided impose a two-part landing ap- fee could proximate congestion pricing. 73 Fed. 40,431-32.
Reg. at course, congestion entirely
Of is not an problem.
new years ago More than 40 press, government, airlines,
“the themselves,
the airport operators and a
host of others that our airports [told us] ” Levine, are in a state of ‘crisis.’ Landing
Fees, 12 DOT, J.L. & Eeon. at 79. The
however, a continuing mandate to
manage the Nation’s air transportation
system. As the airspace is used ever more
intensively, it unsurprising that the De-
partment update would approach its
landing fees in an effort airport to relieve
congestion. long So as it complies with statutes, applicable creativity merits,
should be welcomed on its
spurned novelty. for its
III. Conclusion foregoing reasons,
For the
for review is Denied. *2 Frey argued L. the cause for
Andrew
Nemetz,
petitioner.
R.
Mela-
Miriam
Schneebaum,
Rughani,
nie
Steven M.
W.
Prettyman
E.
D.
Barrett
Jr.
Joshua
Precup
Hawley were on brief. Ronald G.
appearance.
entered an
III
on brief for
Stephan
Paul B.
was
Alejo Vidal-
amici curiae the Honorable
petitioner.
Quadras
support
et al.
of the
(NCRI),
James C. Martin and W. Thomas
of Resistance of Iran
which the
(State)
McGough Jr. were on brief for amici curiae
Department
United States
of State
Morsch,
Gary L.
M.D. et al. in
Colonel
ego
considers
alias or alter
petitioner.
PMOI,
challenged
its FTO status
*3
twice—once with the PMOI and once on
AJan E.
Lawrence S. Robbins and
Un-
I,
197;
its own. See NCRI
F.3d
tereiner were on brief for amici curiae
Nat’l Council
Resistance
Iran v.
of
of
Society
Iranian-American
of Texas et al.
State,
(D.C.Cir.
Dep’t
152,
373 F.3d
of
support
petitioner.
2004) (NCRI II).
In NCRI
the court
Dinh
Viet D.
and Nathan A. Sales were
petition
remanded the
on brief for amici curiae Members of Con-
provide certain
process protections
gress in petitioner.
the PMOI and the NCRI. See 251 F.3d at
Letter,
Douglas
Attorney, United States
cases,
In the other three
including
Justice,
Department
argued
of
the cause
petitions
both
for review following remand
Ciobanu,
respondents.
Ileana M.
in NCRI
the court
petition-
denied the
Attorney, was on brief.
challenges.
ers’
TATEL,
15, 2008,
July
citing
Before: HENDERSON and
On
change
WILLIAMS,
circumstances,
Judges,
Circuit
petitioned
Senior
Judge.
Circuit
and its
for revocation of the
designation.
PMOI’s FTO
After assem-
Opinion for the court filed PER
bling a
comprised
record
of materials sub-
CURIAM.
mitted
both the PMOI and the U.S.
intelligence community, including classified
Concurring opinion
filed Circuit
information,
Secretary rejected
Judge HENDERSON.
12,
petition
January
PMOI’s
2009. See
PER CURIAM:
In the Matter of the
Desig-
Review of the
Mujahedin-e
nation of
Khalq Organization
This case is the fifth in a series of
(MEK),
Aliases,
and All Designated
as a
related actions challenging -the United
Foreign
Organization,
Terrorist
74 Fed.
States
of State’s
of
(Jan.
1273,
2009).
Reg.
12,
1273-74
The
Mojahedin-e
Khalq Organization
PMOI now seeks
review of the
(MEK) and its
a Foreign
aliases as
Terror
decision. We conclude that the Secretary
(FTO).
Organization
MEK,
ist
The
also
failed to accord the
PMOI the due
People’s Mojahedin
called the
Organization
protections
previous
outlined
our
deci-
(PMOI),1
of Iran
challenged
its FTO
sions and therefore remand.
status before this court three times. See
People’s Mojahedin Org.
Iran v. U.S.
of
State,
(D.C.Cir.
Dep’t
182 F.3d
18-19
of
I.
1999) (PMOI I); Nat’l Council
Resis
of
State,
Dep’t
Although
tance
Iran v.
our
251 F.3d
earlier decisions detail the
of
(D.C.Cir.2001) (NCRI I);
statutory
195-96
Peo
scheme and the
prior
PMOI’s
ple’s Mojahedin Org.
Iran v.
Dep’t designations,
briefly
again
review them
(D.C.Cir.
together
leading
events
to this
2003) (PMOI II). The National Council
action.
PMOI,
petitioner
1. Because the
in this case is the
we refer to the MEK and all associ-
Iran,
People’s Mojahedin Organization of
ated aliases as the PMOI.
Register
cation in the Federal
the Sec-
A.
retary’s designation,
amended
Anti-Ter-
describing the
begin by
We
in response
or determination
to a
Penalty Act of
Death
and Effective
rorism
1189(c)(1).
for revocation. See 8 U.S.C.
(AEDPA),
amended as
which was
“solely
ad-
Our review is based
and Ter-
Intelligence
Reform
part of
record, except
ministrative
that the Gov-
2004, Pub.L. No.
Prevention Act of
rorist
submit,
parte
for ex
and in
ernment
108-458,
118 Stat.
review,
camera
classified information”
(2004).
AEDPA,
Under
used to reach her decision.
if
entity
as an FTO she
may designate
1189(c)(2).
Id.
The review “sounds like
(A)
entity
foreign,
*4
determines
procedure normally employed
the familiar
(B)
activity”
in “terrorist
or
engages
it
Congress
to afford due
in
(C)
activity
the terrorist
“terrorism” and
proceedings”
administrative
and is “remi-
security of the United States
threatens the
niscent of other administrative review.”
1189(a)(1).
§
nationals. 8 U.S.C.
or its
I,
Employing
NCRI
going.
“engage
To
discretion, or otherwise not in accor-
involves,
acts,
among
soliciting
other
funds
law;
dance with
for terrorist
affording
support
or
material
(B)
activities,
1182(a)(3)(B)(iv),
contrary
right,
§
to constitutional
id.
while
“premeditated, politi-
power, privilege,
immunity;
or
“terrorism” means
cally
perpetrated
motivated
violence
(C)
statutory jurisdiction,
in excess of
against
targets
noncombatant
subna-
limitation,
authority, or
or short of statu-
22
groups
agents,”
tional
or clandestine
tory right;
2656f(d)(2).
§
U.S.C.
(D)
lacking
support
substantial
administrative record taken as a whole
designation
The FTO
has at least
or in
information submitted to
classified
consequences:
three
(2),
paragraph
the court under
or
Treasury Department may
United States
(E)
procedures
accord with the
assets,
freeze
8
FTO’s
U.S.C.
by law.
required
1189(a)(2)(C);
§
FTO members
are
1189(c)(3).
States,
§
This standard of
entering
barred from
United
8 U.S.C.
1182(a)(3)(B)(i)(IV), (V);
only
§
review
to the first and second
applies
id.
and those
(1)
knowingly provide
requirements, namely,
organi-
“material
that the
who
(2)
subject
foreign
engages
an
are
zation
that it
or resources” to
FTO
prosecution,
or terrorist
or retains
criminal
18
U.S.C.
terrorism
2339B(a)(l).
Dep’t
capability
Kahane
v.
and intent
to do so. We
See
Chai
State,
(D.C.Cir.2006);
requirement
127
that the third
466 F.3d
held
—that
II,
threaten
designated
organization’s
On Shortly allowed after and while the respond and the NCRI to Redesignation to the of the PMOI was still portions effect, unclassified of the Secretary’s ad- Congress lessened the Secre- Secretary designated Mujahedin-e 2. The (including Resistance its U.S. office and all Khalq Organization, along following NCR; with the worldwide); other offices National MEK; MKO; Mujahedin-e Khalq; aliases: (including Council of Resistance of Iran (in- People’s Mujahedin Organization of Iran worldwide); U.S. office and all other offices cluding its U.S. office and all other offices NCRI; Iran; Army National Liberation worldwide); PMOI; Organization of the Peo- NLA; and the Muslim Iranian Student’s Soci- Iran; ple's Holy Warriors of Sazeman-e Mu- ety. Redesignation. Iran; jahedin-e Khalq-e National Council of by amending burden C. tary’s administrative two-year limitation AEDPA to remove began July This action when the Intelligence designation. an FTO petition filed a for revocation of its Act Terrorist Prevention Reform and Redesignation. argued The PMOI designation longer A no Redesignation that the 2003 should be Instead, organization lapses. designated dramatically voked because of its changed after years seek revocation two circumstances since the or, if designated is made It court’s last reviews. submitted evi- dence to changed of its cir- organization previously petition filed cumstances, that, asserting since its initial revocation, years peti- two after that FTO it had: ceased its tion resolved. U.S.C. military campaign against the Iranian re- 1189(a)(4)(B)(ii). revocation, To seek 2001; gime and renounced violence in vol- peti- “must evidence in that FTO untarily handed over its arms to U.S. the relevant circumstances ... tion Iraq forces in and cooperated with U.S. sufficiently are different from the circum- (where Camp officials at Ashraf all of its desig- that were the basis for the stances operating Iraq members are consolidat- respect nation such that a revocation with ed) 2003; intelligence shared organization is warranted.” Id. government regarding Iran’s nuclear 1189(a)(4)(B)(iii). The has 180 program; in 2004 obtained “protected per- days from the date of the to make son” status under Fourth Geneva Con- her revocation decision. Id. vention for all PMOI at Camp members *6 1189(a)(4)(B)(iv)(I). § her deci- making Ashraf on the investigators’ based U.S. sion, Secretary may rely on classified conclusions none was a combatant or information, subject “shall not be which a any had committed crime under U.S. disclosure for such time as it remains clas- laws; military disbanded its units and dis- sified, except may that such information be Ashraf, armed the PMOI members at all parte disclosed to a court ex camera signed rejecting of whom a document vio- judicial purposes for review.” Id. terror; delisting lence and and obtained as 1189(a)(4)(B)(iv)(II). years § If five organization a terrorist from the United a elapse petition without for revocation (the Kingdom Organisations Proscribed FTO, from the conducts her Appeal of Ap- Commission and Court own review to determine if revocation is peal) European 2008 and from the Un- 1189(a)(4)(C)(i). § appropriate. Id. Un- (the Instance) ion European Court of First response like a determination made in to a supple- 2009. The PMOI also thrice revocation, petition for her ex mero motu petition mented its with additional infor- judicially decision is not reviewable. Id. mation and letters in from support mem- 1189(a)(4)(C)(ii). § Congress, While the bers of the U.S. members of the time, European parliaments UK and retired designation any revoke a id. military, among members of the U.S. oth- 1189(a)(6)(A), the statute directs that ers. designation she shall revoke a if she finds
that either “the circumstances were reviewing After an administrative record designation for changed the basis consisting of both classified and unclassi- in such a manner as to revoca- warrant information, fied denied tion,” security or “the national of the Unit- petition published PMOI’s its denial in revocation,” Register January ed States warrants a id. the Federal on Fed.Reg. any also organization See 1273-74. She unclassified material on provided heavily the PMOI with a redact- which she rely. Resp’ts’ intended to 20-page summary ed administrative of Br. (after denying petition revocation record, State’s review of the which sum- ... Department provided “[t]he exhibits, mary many referred summary the PMOI an unclassified heavily entirely which were also redact- agency’s evidence the record and the (Jan. 2009) (Un- ed. See Admin. Summ. issues”). analysis of the Version); classified Revised Admin. timely The PMOI filed a 2009) (Unclassified (Apr. Summ. Ver- on February review 2009 under 8 sion). The determination was 1189(c). U.S.C. It asks us to vacate the record, “sup- based on the administrative Secretary’s decision and remand with in- porting supplemental filings exhibits and structions to revoke its FTO Petition, support the MEK in based on a lack of substantial well variety as information from a Alternatively, record. the PMOI asks sources, including the Intelligence us to vacate its on ground Community.” Revised Admin. Summ. 2. comply did not She wrote that “in considering the evi- process requirements set forth our whole, dence as the MEK has not shown by failing earlier decisions provide that the relevant circumstances are suffi- with advance proposed notice of her action ciently different from the circumstances and the unclassified record on which she that were the basis for the re-desig- rely, intended to by failing as well as nation,” and that a consequence, the “[a]s it with access to the classified MEK foreign organiza- continues to be a record. that engages tion ... terrorist or terrorism ... or capability retains the State submitted its classified administra- Id.; and intent to” Fed.Reg. do so. see 74 tive record March parte 2009 for ex at 1273-74. Nevertheless she also noted: and in camera review under 8 U.S.C.
In light of the evidence submitted 1189(c)(2); it subsequently filed *7 MEK that it has renounced terrorism dacted, unclassified version in August and uncertainty the surrounding the document, In filing 2009. the latter State presence MEK in Iraq, the continued noted that it intended to file additional designation of the MEK should be re- documents as soon as its declassification by examined the review was finished. It supplement- later years the next two if even the MEK newly ed the record with declassified ma- does not file a petition for revocation. 8, 2009, terial September twice—once on day due, Revised Admin. Summ. 20. the the Although opening PMOI’s brief was 27, 2009, informed the again PMOI of her deci- on October about two day sion the published before it was in the weeks before the reply PMOI’s brief due Register, Federal provide she did not date.3 Among
3. the disclosures in the capability engage declassified a limited to in terrorist ac- terrorism”; Camp tivity material: "the MEK trained publicly females at "[t]he or MEK Iraq perform Ashraf in to suicide attacks in nounced violence in but limited intelli- Karbala”; money gence "the MEK reporting group solicits under indicates that the pretext the false military of humanitarian aid operations, repudiated not ended vio- lence, population”; disarmed”; August Iranian "an completely voluntarily 2008 U.S. or or Intelligence Community [intelligence community] Terrorist Threat As- "[t]he that assesses sessment, clearly although states that the MEK retains there has not been a confirmed ter- that” it is an FTO. NCRI
II.
required to
Ordinarily, we would be
happen
This did not
here. The PMOI
to
aside the
decide whether
set
notified
was
decision
petition on
of the PMOI’s revocation
denial
permitted
access to the unclassified
that her conclusion
ground
only
portion of the record
the deci-
after
...
“engages
activity
in terrorist
or
PMOI
though
sion was final.4 And even
capability
...
terrorism
or retains
in-
given
opportunity
PMOI was
to
engage
in terrorist
intent
clude in the record its own
sup-
evidence
terrorism,”
2-3,
Summ.
Revised Admin.
porting delisting,
opportunity
it had no
the adminis
substantial
“lack[s]
rebut the unclassified
of the record
or in
trative record taken as whole
classi
omission,
compiling
was
—an
to the court.”
fied information submitted
argues,
deprived
the PMOI
it of the
1189(c)(3)(D).
8 U.S.C.
process protections
due
detailed in our
previous decisions. See Pet’r’s Br. 23
however,
Here,
we need
determine
(“[T]he Secretary’s decision is procedurally
because, as the
adequacy
of the record
infirm
given
oppor-
because PMOI was
no
argues, our review “is not
sufficient
tunity to rebut
the administrative rec-
due
supply
the otherwise absent
ord....”).
protection”
designated
of notice to the
or
ganization
opportunity
and an
for a mean
deny
State does not
that the
I, 251 F.3d at
ingful hearing.
type
speci
208 failed to
of notice
(designated organization
“op
argues
entitled to
fied
NCRI I. But it
that she
‘at a
portunity
meaningful
complied
precedent
enough
to be heard
time
with our
well
”
meaningful
(quoting
light
statutory
and in a
manner’
scheme as altered
319, 333,
v.
the 2004 AEDPA
Eldridge,
Mathews
amendments and the
(1976))).
process.
In other
“flexible”
Arg.
S.Ct.
L.Ed.2d 18
nature
due
Tr.
words,
22:18-21;
agree
even were we to
with State
see NCRI
231 critically relied on classified mate- din of Iran’s for revocation of its has not provided rial the unclassified material foreign as a terrorist or- justify the FTO is sufficient to ganization is remanded to the Secretary II, at designation. See NCRI 373 F.3d proceedings for further consistent with (“We II, 159-60; at 327 F.3d opinion. I
already pro- in that due [NCRI ] decided So ordered. only the disclosure of required cess portions of the administrative unclassified HENDERSON, KAREN LECRAFT record.”) (emphasis original); in NCRI Judge, concurring: Circuit (‘We acknowledge at 208-09 251 F.3d uphold Secretary’s We are to deter record, in the whole we reviewing mination it sup unless substantial “lack[s] material, have included the classified but] port the administrative taken as record ... will not and cannot disclose the we a whole or in sub classified information record,” which “is within contents mitted court." 8 U.S.C. prerogative of the execu- privilege 1189(c)(3)(D) added). (emphasis my tive”); v. Fed. Aviation Ad- Jifry see also view, the classified of the adminis (D.C.Cir. min., 1174, 1182, 370 F.3d provides trative record sup “substantial 2004) right licensure has no (pilot denied port” for her determination that the PMOI to classified record because access engage either continues to in terrorism or process protections due afforded ... “[t]he terrorist the capability retains cir- parallel provided those under similar and, and intent to do so consequently, for II], I cumstances and PMOI [NCRI her denial of the peti PMOI’s revocation law”); satisfy our and are sufficient to case Further, Found, repeatedly tion. our cases have Holy & Dev. v. Land for Relief emphasized what the statute makes clear: (D.C.Cir.2003) Ashcroft, 333 F.3d enjoys right the PMOI no to access classi (“HLF’s Desig- like that of the complaint, fied material the relied on. See Foreign Organizations nated Terrorists (state’s 251 F.3d notice to ], II process I and PMOI that due [NCRI designated entities “need disclose the prevents a different [under presented classified information to be information to law] based classified avail.”). parte camera and ex to the court under is of which has not had access no however, statute”); II, note, that none of the AED- see also PMOI 327 F.3d We (we PA “already cases decides whether an administra- decided in I [NCRI ] relying critically tive decision on undis- process required that due disclosure comport closed classified material would only the portions”) (emphasis unclassified with due because none was the original). And upheld against we have uphold classified record essential an process challenge due an AEDPA designa they designation. FTO But do indicate tion that relied on un both classified and that, remand, purpose today’s for the classified material. See NCRI affording opportunity to review (“Based at 152 on our review the entire portions and rebut unclassified administrative record and the classified record, coupled assur- thereto, appended materials we find that ance that she has evaluated material— adequate did have an basis and the sources therefor —that she relied conclusion.”) added). (emphasis for his Al decision, may to make her be sufficient though acknowledged later the same requisite process. opinion that the unclassified record alone above, desig would have sufficed to
For the reasons set forth nation, People’s Mojahe- consistently unambig denial of the we have *12 232 I of
uously reading followed this revocation had that material been virtually every AEDPA case.1 See id. at made available to the In PMOI earlier. (access addition, argument by 159-60 is “foreclosed the appears herself [NCRI recognized ambiguity our earlier decisions of the I] rec- II”); Dep’t Kahane Chai v. sponte PMOI sua by ord recommending reex- cf. (D.C.Cir.2006) (de 466 F.3d 129 amination of the PMOI’s status in two (“In process years. claim clining to resolve due be Revised Admin. Summ. uphold designations light can cause “we of the evidence submitted solely upon based the unclassified MEK that it has renounced terrorism and record”). Moreover, uncertainty of the administrative surrounding the MEK also affirms precedent other administrative presence Iraq, the continued designa- material, relying decisions on classified tion of the MEK should be re-examined rejecting process challenge each due of State'in the next two II the basis of and NCRI I.2 While years if even the MEK does not file a AEDPA, these decisions are not under revocation.”). short, petition for were I they treat our AEDPA precedent as bind confident that she had evaluated and relied are, event, ing binding them on what I consider to be the substantial selves. support contained in the classified record only (along therefor), with the sources I According Secretary, however, not, join would affirm. I am I my Because I NCRI her decision was based on both colleagues remanding to Secretary. classified and unclassified material. Be- cause the PMOI had no opportunity to the unclassified portions be-
access/rebut final,
fore the decision was it is
not clear that she would have denied the example, rejected [dictum],
1. For in PMOI II we on neither is obiter but each court, redesignation judgment contention that the PMOI's equal validity un- and of ” der AEDPA was (quoting Dooling unconstitutional because with the other.’ v. Overhol- ser, (D.C.Cir.1957) (inter- “the relied 243 F.2d on secret information to omitted))). quotations [the which nal was] afforded access”: already “We have established in [NCRI/] the process Admin., which is due under the circumstances Jifry 2. See v. Fed. Aviation 370 F.3d of this sensitive (D.C.Cir.2004) (“While matter of classified intelli- pilots gence foreign in the effort to combat protest terror- knowledge specific that without complied relied, ism. The they evidence on which TSA are un- therein, nothing standard we set forth against charge they able to defend are risks, further is due.” PMOI security 1242- rejected the court has the same 43. The court went on to note that "even if argument listing in the terrorism cases. The due, describing we err in even process protections par- afforded to them had the been Petitioner entitled to have provided its allel those under similar circum- II], counsel or itself view the classified informa- [NCRI stances in I and PMOI and are tion, law.”); breach of that entitlement has satisfy Holy sufficient to our case Found, caused it no harm.” Id. at 1243. But I read Ashcroft, Land & Dev. v. for Relief subjunctive phrase beginning (D.C.Cir.2003) (“That with “even desig- F.3d holding if” as an alternative which means nation comes under an Executive Order is- holdings precedent. both constitute Nat- statutory sued under a different scheme Council, ural Regula- Res. Inc. v. Nuclear complaint, makes no difference. HLF’s like Def. Comm’n, tory (D.C.Cir. Designated that of the [FTOs] the earlier 2000) (“ '[Wjhere cases, grounds, there are two process prevents designa- that due upon appellate either of which an court tion based classified information to decision, both, access[,] avail.”). adopts ruling rest its and it which it has not had is of no