People's Mojahedin Organization of Iran v. United States Department of State
U.S. Court of Appeals6/25/1999
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Full Opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 5, 1999 Decided June 25, 1999
No. 97-1648
People's Mojahedin Organization of Iran,
Petitioner
v.
United States Department of State and
Madeleine K. Albright, Secretary of State,
Respondents
No. 97-1670
Liberation Tigers of Tamil Eelam,
Petitioner
v.
United States Department of State,
Respondent
On Petitions for Review of Orders of the
United States Secretary of State
---------
Jacob A. Stein argued the cause for petitioner in 97-1648.
With him on the briefs were George A. Fisher and Ronald G.
Precup.
Ramsey Clark argued the cause for petitioner 97-1670.
With him on the briefs was Lawrence W. Schilling.
Douglas N. Letter, Litigation Counsel, U.S. Department of
Justice, argued the cause for respondents in 97-1648. With
him on the brief were Frank W. Hunger, Assistant Attorney
General, Wilma A. Lewis, U.S. Attorney, John P. Schnitker
and H. Thomas Byron, III, Attorneys, U.S. Department of
Justice.
John P. Schnitker, Attorney, U.S. Department of Justice,
argued the cause for respondent in 97-1670. With him on the
brief were Frank W. Hunger, Assistant Attorney General,
Wilma A. Lewis, U.S. Attorney, Douglas N. Letter, Litigation
Counsel, U.S. Department of Justice, and H. Thomas Byron,
III, Attorney.
Before: Williams and Randolph, Circuit Judges, and
Buckley, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: The Antiterrorism and Effective
Death Penalty Act conferred upon the Secretary of State the
power to designate "foreign terrorist organizations." 8
U.S.C. s 1189. By order effective October 8, 1997, Secretary
of State Madeline K. Albright so designated the People's
Mojahedin Organization of Iran and the Liberation Tigers of
Tamil Eelam. See Designation of Foreign Terrorist Organi-
zations, 62 Fed. Reg. 52,650 (1997). Both groups have
brought petitions for judicial review of their designations
pursuant to 8 U.S.C. s 1189(b)(1).1
__________
1 Because these separate petitions involve the same statute and
similar claims, we decide both in a single opinion.
I
The statute before us is unique, procedurally and substan-
tively. On the basis of an "administrative record," the Secre-
tary of State is to make "findings" that an entity is a foreign
organization engaging in terrorist activities that threaten the
national security of the United States. See 8 U.S.C.
s 1189(a)(2)(A)(i), (3)(A). This language--"findings" on an
"administrative record"--is commonplace. We encounter it
day in and day out in cases coming from federal agencies.
But unlike the run-of-the-mill administrative proceeding, here
there is no adversary hearing, no presentation of what courts
and agencies think of as evidence, no advance notice to the
entity affected by the Secretary's internal deliberations.
When the Secretary announces the designation, through pub-
lication in the Federal Register, the organization's bank
accounts in the United States become subject to seizure and
anyone who knowingly contributes financial support to the
named entity becomes subject to criminal prosecution. See 8
U.S.C. ss 1189(a)(2)(C), 2339B(a)(1). Any classified informa-
tion on which the Secretary relied in bringing about these
consequences may continue to remain secret, except from
certain members of Congress and this court. See 8 U.S.C.
s 1189(a)(2)(A)(i), (b)(2). There is a provision for "judicial
review" confined to the material the Secretary assembled
before publishing the designation. See 8 U.S.C. s 1189(b)(2).
Because nothing in the legislation restricts the Secretary
from acting on the basis of third hand accounts, press stories,
material on the Internet or other hearsay regarding the
organization's activities, the "administrative record" may con-
sist of little else.
We will give the details of the governing provisions in a
moment. At this point in a judicial opinion, appellate courts
often lay out the "facts." We will not, cannot, do so in these
cases. What follows in the next two subsections may or may
not be facts. The information recited is certainly not evi-
dence of the sort that would normally be received in court. It
is instead material the Secretary of State compiled as a
record, from sources named and unnamed, the accuracy of
which we have no way of evaluating.
A
"The Liberation Tigers of Tamil Eelam was founded in
1976 for the purpose of creating a separate Tamil state in Sri
Lanka. The group began its war against the Government of
Sri Lanka in 1983 and has employed violent means, including
bombings and political assassination, to achieve the goal of a
separate entity in the North and East of the country. Some
50,000 people are estimated to have died in fourteen years of
fighting."2 "Sri Lankan military and intelligence sources that
have reported reliably in the past have identified the Ellalan
Force as another alias for the Liberation Tigers of Tamil
Eelam," which "will hereafter be referred to as the 'LTTE'."
"Headquartered in the Jaffna Peninsula [of Sri Lanka], ...
Velupillai Prabhakaran," "the founder and leader of Sri Lan-
ka's LTTE ... organized the insurgency group to pursue an
independent homeland for Tamils in Sri Lanka's northern and
eastern regions out of frustration over the ethnic discrimina-
tion of the Sri Lankan government, according to press re-
ports." "Tamils ... are the mainstay of his organization,
according to US military officials."
A February 1995 news story from Hong Kong stated: "Sri
Lanka's Tamil Tiger rebels denied plans to assassinate Presi-
dent Chandrika Kumaratunga but tacitly admitted having
killed former Indian Premier Rajiv Gandhi, press reports
here said Tuesday.... Tigers have also been accused of
killing Sri Lankan President Ranasinghe Premadasa in May
1993 and opposition leader Gamini Dissanayake in October
last year. However, Tigers have denied all these killings."
"[T]he LTTE tried to assassinate leaders of the Tamil Eelam
Liberation Organization (TELO)--a Tamil political party--on
August 26 [1996]. The President of the party escaped, but a
district leader was killed." A report dated July 1996 stated:
"A suicide bomb attack by the Liberation Tigers of Tamil
Eelam ... narrowly missed killing a key [cabinet minister]
and left 25 dead...." A State Department report on terror-
ist activity in 1996 reported that: "The LTTE has refrained
__________
2 All quotations in this part A are from the public version of the
administrative record.
from targeting Western tourists, but a front group--the
Ellalan Force--continued to send threatening letters to West-
ern missions and the press."
"The LTTE ... uses its international contacts to procure
weapons, communications, and bomb-making equipment.
The LTTE exploits large Tamil communities in North Amer-
ica, Europe, and Asia to obtain funds and supplies for its
fighters in Sri Lanka."
B
A CIA Intelligence Research Paper, dated July 1993, re-
ports that the People's Mojahedin Organization of Iran--the
MEK, for short--"is the largest and most active Iranian
dissident group. Its primary goal is the overthrow of the
Iranian Government, after which it would seek to establish a
nontheocratic republic.... The MEK's history, marked by
violence and terrorism, belies its claim to uphold democratic
ideals. Formed in the early 1960s, its origins reflect both
Marxist and Islamic influences, and its history is studded with
anti-Western activity." 3
The MEK "collaborated with Ayatollah Khomeini to over-
throw the former Shah of Iran. As part of that struggle,
they assassinated at least six American citizens, supported
the takeover of the U.S. embassy, and opposed the release of
American hostages." "[In 1972] the MEK exploded time
bombs at more than a dozen sites throughout Tehran, includ-
ing the Iran-American Society, ... and the offices of Pepsi
Cola and General Motors. From 1972-75 ... the Mojahedin
continued their campaign of bombings, damaging such targets
as the offices of Pan-American Airlines, Shell Oil Company,
and British organizations." "The MEK has been unable since
the mid-1980s to mount terrorist operations inside Iran on
the same scale as its earlier activities because of government
repression and the group's lack of popular support." "In
__________
3 According to 62 Fed. Reg. at 52,650, the People's Mojahedin
Organization of Iran is also known as the Mujahedin-e Khalq, the
MEK, the MKO, the PMOI, the Organization of the People's Holy
Warriors of Iran and the Sazeman-e Mujahedin-e Khalq-e Iran.
June 1987 the MEK formed a military wing, the National
Liberation Army of Iran (NLA), which is located in eastern
Iraq along the central Iran-Iraq border area." "In April
1992, the MEK used its sympathizers in the United States,
Canada, Germany, France, the United Kingdom, Switzerland,
the Netherlands, Sweden, Norway, Denmark and Australia to
launch virtually simultaneous attacks on Iranian embassies
and installations." In March 1994 Reuters and the BBC
reported that the MEK "said its fighters attacked and dis-
abled 14 oil pipelines in the north of Khuzistan province
during military operations" and took credit for "25 other ...
attacks it said took place in Iran between March 8 and March
18."
"The MEK looks to expatriate Iranians who are not mem-
bers of the organization for financial support and manpower."
"Baghdad is the MEK's primary supporter and closest ally."
"The MEK has offices and members throughout Europe,
North America, the Middle East and in Australia. These
offices are responsible for collecting donations from private
citizens--especially Iranian expatriates--for the MEK and
for organizing activities such as demonstrations to show
support for the MEK."
C
Section 1189(a)(1), as added by the Antiterrorism and
Effective Death Penalty Act of 1996, Pub L. No. 104-132,
s 302, 110 Stat. 1214, 1248, as amended by the Illegal Immi-
gration Reform and Immigrant Responsibility Act of 1996,
Pub. L. No. 104-208, s 356, 110 Stat. 3009, 3009-644, empow-
ers the Secretary of State to designate a "foreign terrorist
organization" if the Secretary finds three things: "(A) the
organization is a foreign organization"; "(B) the organization
engages in terrorist activity" as defined in the provisions set
forth in the margin;4 and "(C) the terrorist activity of the
__________
4 Terrorist activity is defined as any activity which is:
unlawful ... where it is committed (or which, if committed in
the United States, would be unlawful under [state or federal
law]), and which involves any of the following:
organization threatens the security of United States nationals
or the national security of the United States." Such activities
threaten the "national security" when they threaten the "na-
tional defense, foreign relations, or economic interests of the
United States." See 8 U.S.C. s 1189(c)(2).5 Upon notifica-
tion that the Secretary plans to designate an organization, the
Secretary of the Treasury may require U.S. financial institu-
tions that possess or control assets of that organization to
block all financial transactions involving those assets until
further directive from him, by Act of Congress or order of a
court. See 8 U.S.C. s 1189(a)(2)(C).
The knowing provision of material support or resources to
a designated organization is a crime punishable by a fine or
up to ten years imprisonment, or both. See 18 U.S.C.
__________
(I) The hijacking or sabotage of any conveyance (including
an aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill,
injure, or continue to detain, another individual in order to
compel a third person (including a governmental organiza-
tion) to do or abstain from doing any act as an explicit or
implicit condition for the release of the individual seized or
detained.
(III) A violent attack upon an internationally protected
person ... or upon the liberty of such a person.
(IV) An assassination.
(V) The use of any--
(a) biological agent, chemical agent, or nuclear weapon
or device, or
(b) explosive or firearm (other than for mere personal
monetary gain),
with intent to endanger, directly or indirectly, the safety of one
or more individuals or to cause substantial damage to property.
(VI) A threat, attempt, or conspiracy to do any of the
foregoing.
8 U.S.C. s 1182(a)(3)(B)(ii).
5 The statute requires the Secretary to notify certain members of
the House and Senate before making a designation, but she need
not notify the organizations being considered for designation, nor
give them an opportunity to be heard. See 8 U.S.C.
s 1189(a)(2)(A).
s 2339B(a)(1). Alien members or representatives of desig-
nated organizations may not be admitted to the United
States. See 8 U.S.C. s 1182(a)(3)(B)(i)(IV), (V).
Also, 8 U.S.C. s 1189(a)(8) states that "[i]f a designation
under this subsection has become effective under paragraph
(1)(B), a defendant in a criminal action shall not be permitted
to raise any question concerning the validity of the issuance
of such designation as a defense or an objection at any trial or
hearing." (This last provision seems to contain a miscitation.
Paragraph (1)(B) does not deal with a designation's becoming
effective; (1)(B) is the paragraph requiring a finding of
terrorist activity. It appears that s 1189(a)(8) meant to refer
to paragraph (2)(B).)
The judicial review provision states that a designated orga-
nization may, within 30 days of publication in the Federal
Register, file a petition for judicial review in the United
States Court of Appeals for the District of Columbia Circuit.
8 U.S.C. s 1189(b)(1). The court is to look only at the
"administrative record" the Secretary has assembled, al-
though "the Government may submit, for ex parte and in
camera review, classified information used in making the
designation." See 8 U.S.C. s 1189(b)(2).
In APA-like language, s 1189(b)(3) provides that the court
shall "hold unlawful and set aside a designation the court
finds to be" "arbitrary, capricious, an abuse of discretion,"
"contrary to constitutional right, power, privilege or immuni-
ty," "in excess of statutory jurisdiction, authority or limita-
tion," "lacking substantial support in the administrative rec-
ord taken as a whole or in classified information submitted to
the court" or a designation that was not made "in ac-
cord[ance] with the procedures required by law." 8 U.S.C.
s 1189(b)(3).
II
These cases bear some resemblance to Joint Anti-Fascist
Refugee Committee v. McGrath, 341 U.S. 123 (1951), in which
the Attorney General, purportedly acting pursuant to an
Executive Order, designated certain organizations as Commu-
nist on a list furnished to the Civil Service Commission. No
majority opinion emerged, but in separate opinions Justices
Black (id. at 143), Frankfurter (id. at 173), Douglas (id. at
176) and Jackson (id. at 186-87) stated that the Fifth Amend-
ment's due process clause barred the government from so
condemning organizations without giving them notice and
opportunity to be heard. In view of Joint Anti-Fascist Refu-
gee Committee, and other authorities, the LTTE and the
MEK suppose that s 1189 deprived them of due process of
law, particularly since the Secretary's designations had the
effect of making it a crime to donate money to them. Com-
pare Paul v. Davis, 424 U.S. 693, 704-05 (1976).
We put to one side situations in which an organization's
bank deposits were seized as a result of the Secretary's
designation. Neither the LTTE or the MEK suffered that
fate, presumably because no United States financial institu-
tions held any of their property. From all that appears, the
LTTE and the MEK have no presence in the United States.
Their status as foreign is uncontested. This serves to distin-
guish them from the organizations named as Communist in
the Joint Anti-Fascist Refugee case. Those were domestic
entities. A foreign entity without property or presence in
this country has no constitutional rights, under the due
process clause or otherwise. "[A]liens receive constitutional
protections [only] when they have come within the territory of
the United States and developed substantial connections with
this country." United States v. Verdugo-Urquidez, 494 U.S.
259, 271 (1990).6 No one would suppose that a foreign nation
had a due process right to notice and a hearing before the
Executive imposed an embargo on it for the purpose of
coercing a change in policy. See Regan v. Wald, 468 U.S. 222
(1984).
Whatever rights the LTTE and the MEK enjoy in regard
to these cases are therefore statutory rights only. Because
__________
6 Because the issue is not before us, we do not decide whether
s 1189 deprives those in the United States of some constitutional
right if they are members of, or wish to donate money to, an
organization designated by the Secretary.
Congress so allowed, the LTTE and the MEK are entitled to
contest their designations on the grounds set forth in
s 1189(b)(3). Under the statute, they may for instance seek
our judgment about whether the Secretary followed statutory
procedures, or whether she made the requisite findings, or
whether the record she assembled substantially supports her
findings.
But even this puts the matter too broadly, the government
tells us. Of the three findings mandated by s 1189(a)(1), the
third--"(C) the terrorist activity of the organization threatens
the security of United States nationals or the national securi-
ty of the United States"--is nonjusticiable. Chicago &
Southern Air Lines, Inc. v. Waterman Steamship Corp., 333
U.S. 103 (1948), holds that it is beyond the judicial function
for a court to review foreign policy decisions of the Executive
Branch. These are political judgments, "decisions of a kind
for which the Judiciary has neither aptitude, facilities nor
responsibilities and have long been held to belong in the
domain of political power not subject to judicial intrusion or
inquiry." 333 U.S. at 111. See, e.g., Haig v. Agee, 453 U.S.
280, 292 (1981).
May we nevertheless conduct judicial review limited to
determining whether the Secretary complied with the remain-
ing portions of s 1189(a)? The question arises because it is
the Secretary's designation that we are supposed to review
according to 8 U.S.C. s 1189(b)(1): "Not later than 30 days
after publication of the designation in the Federal Register,
an organization designated as a foreign terrorist organization
may seek judicial review of the designation in the United
States Court of Appeals for the District of Columbia Circuit."
If we are not competent to pass upon the Secretary's national
security finding under s 1189(a)(1)(C), and we interpret
Waterman to hold that we are not, how can we perform the
function Congress assigned to us, which is to pass upon the
validity of the designation?7 For all we know, the designa-
__________
7 In cases on appeal from the district court, we are to review
"judgments, not opinions." Chevron U.S.A. v. Natural Resources
Defense Council, 467 U.S. 837, 842 (1984). Orders issued by
tion may be improper because the Secretary's judgment that
the organization threatens our national security is completely
irrational, and devoid of any support. Or her finding about
national security may be exactly correct. We are forbidden
from saying. That we cannot pronounce on the question does
not mean that we must assume the Secretary was right. It
means we cannot make any assumption, one way or the other.
So the question remains: may we perform the checking
function of judicial review by ignoring (C) and just pronounc-
ing on (A) and (B)? Waterman has some bearing on the
issue. There the Civil Aeronautics Board issued a proposed
order disposing of 29 applications from 15 United States
carriers to engage in overseas operations. See Waterman,
333 U.S. at 116 n.5. Pursuant to statute, such CAB orders
(regardless whether the order granted or denied the applica-
tion) had to be approved by the President before becoming
final. In Waterman the President approved the CAB's con-
solidated order. This had the effect of granting Chicago &
Southern's application and denying Waterman's. See id. at
104-05. The statute contained a provision allowing for judi-
cial review of such CAB orders (although not orders granting
or denying routes to foreign carriers). The court of appeals
believed that it "could not review such provisions of the order
as resulted from Presidential direction," see id. at 111, and as
we have said, the Supreme Court majority (and the dissenters
too) agreed. But the Court disagreed with the court of
appeals that it could nevertheless review whatever portion of
the CAB's order had not resulted from the President's for-
eign policy judgment. (On this point the Court divided 5-4.)
The Court viewed the CAB orders as merely advisory until
the President acted. After the President acted, even if he
changed nothing the CAB had decided, "the final orders
embody Presidential discretion as to political matters beyond
the competence of the courts to adjudicate." See id. at 114.
__________
agencies are treated differently. In administrative law, we do not
sustain a "right-result, wrong-reason" decision of an agency. We
send the case back to the agency so that it may fix its reasoning or
change its result. SEC v. Chenery Corp., 318 U.S. 80, 88 (1942),
explains the difference.
One might suppose that, by analogy, the Secretary's desig-
nations also "embody ... discretion as to political matters
beyond the competence of the courts to adjudicate." See id.
But there is a difference between the statutory system in
Waterman and the statutory system we have before us.
Apart from the fact that the President did not need to make
any particular findings to approve, modify or reject a pro-
posed CAB order, the order could not be effective without
Presidential action. The President's action was not limited to
a "mere right of veto." See id. at 109. The President could,
for instance, set aside CAB orders refusing to authorize air
transportation. See id. Judicial review of the CAB's action,
then, would have amounted to rendering an advisory opinion.
333 U.S. at 113-14. Not so here. If we were to determine
that the Secretary failed to comply, or did comply, with
s 1189(a)(1)(A) and (B), there would be nothing advisory
about our opinion. We would uphold, or set aside, the
Secretary's determination on that ground. Judicial review, as
thus limited, performs the role Congress intended without
thrusting the judiciary into the political realm.
With subsection (C) out of the picture, all that remains to
be examined--in view of the arguments the LTTE and the
MEK present--is the Secretary's findings that these organi-
zations are "foreign" and that they "engage[ ] in terrorist
activity" (8 U.S.C. s 1189(a)(1)(A) & (B)). The LTTE, but
not the MEK, contests whether it is a "foreign organization"
within the meaning of the statute. According to the LTTE, it
is instead a government. The LTTE assumes a difference
between a foreign organization and a foreign government.
Only in the definition of terrorist activities is there a hint that
Congress meant to draw such a distinction. See 8 U.S.C.
s 1182(a)(3)(B)(ii)(II). In any event, the United States re-
plies that a court cannot make the determination the LTTE
wants because recognizing foreign states is solely entrusted
to the political branches, and the United States has not
recognized the LTTE. "Who is the sovereign, de jure or de
facto, of a territory, is not a judicial, but a political question,
the determination of which by the legislative and executive
departments of any government conclusively binds the
judges, as well as all other officers, citizens, and subjects of
that government." Jones v. United States, 137 U.S. 202, 212-
13 (1890). Here, the Secretary determined that the LTTE
was a foreign organization and, in the words of the statute,
there is "substantial support" for her finding in the materials
she has furnished us as an "administrative record." 8 U.S.C.
s 1189(b)(3)(D).8
We also believe that the record, as the Secretary has
compiled it, not surprisingly contains "substantial support"
for her findings that the LTTE and the MEK engage in
"terrorist activities" within the meaning of 8 U.S.C.
s 1182(a)(3)(B). We have already recounted, above, enough
of the record to show that the Secretary had before her
information that each of the organizations engaged in bomb-
ing and killing in order to further their political agendas.
Any one of the incidents attributed to the LTTE and to the
MEK would have sufficed under the statute.
We therefore refuse to set aside either designation. In so
deciding we are not--in the words of Mistretta v. United
States, 488 U.S. 361, 407 (1989)--allowing the reputation of
the Judicial Branch to be "borrowed by the political Branches
to cloak their work in the neutral colors of judicial action."
We reach no judgment whatsoever regarding whether the
material before the Secretary is or is not true. As we wrote
earlier, the record consists entirely of hearsay, none of it was
ever subjected to adversary testing, and there was no oppor-
tunity for counter-evidence by the organizations affected. As
we see it, our only function is to decide if the Secretary, on
the face of things, had enough information before her to come
__________
8 Section 1189(b)(3), although generally parroting the language of
the Administrative Procedure Act, modified the "substantial evi-
dence" standard of 5 U.S.C. s 706(2)(E) to say instead "substantial
support." Perhaps this was in recognition of the decision of this
court that whenever a statute requires the agency action to be
supported by "substantial evidence"--a term of art in administra-
tive law--there must be "some sort of adversary, adjudicative-type
procedures" before the agency. Mobil Oil Corp. v. FPC, 483 F.2d
1238, 1259 (D.C. Cir. 1973).
to the conclusion that the organizations were foreign and
engaged in terrorism. Her conclusion might be mistaken, but
that depends on the quality of the information in the reports
she received--something we have no way of judging.
We have considered and rejected the other arguments
petitioners have raised and see no need to burden this opinion
with a discussion of them.
The petitions for review are denied.