People's Mojahedin Organization v. United States Department of State

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2010 Decided July 16, 2010

No. 09-1059

PEOPLE’S MOJAHEDIN ORGANIZATION OF IRAN,

PETITIONER

v.

UNITED STATES DEPARTMENT OF STATE AND

HILLARY RODHAM CLINTON,

IN HER CAPACITY AS SECRETARY OF STATE,

RESPONDENTS

On Petition for Review of an Order

of the Department of State

Andrew L. Frey argued the cause for the petitioner. Miriam

R. Nemetz, Melanie W. Rughani, Steven M. Schneebaum, E.

Barrett Prettyman Jr. and Joshua D. Hawley were on brief.

Ronald G. Precup entered an appearance.

Paul B. Stephan III was on brief for amici curiae the

Honorable Alejo Vidal-Quadras et al. in support of the

petitioner.

James C. Martin and W. Thomas McGough Jr. were on

brief for amici curiae Colonel Gary L. Morsch, M.D. et al. in

support of the petitioner.

2

Lawrence S. Robbins and Alan E. Untereiner were on brief

for amici curiae Iranian-American Society of Texas et al. in

support of the petitioner.

Viet D. Dinh and Nathan A. Sales were on brief for amici

curiae Members of Congress in support of the petitioner.

Douglas Letter, Attorney, United States Department of

Justice, argued the cause for the respondents. Ileana M.

Ciobanu, Attorney, was on brief.

Before: HENDERSON and TATEL, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the court filed PER CURIAM.

Concurring opinion filed by Circuit Judge HENDERSON.

PER CURIAM: 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),1 has challenged its FTO status before this court three

times. See People’s Mojahedin Org. of Iran v. U.S. Dep’t of

State, 182 F.3d 17, 18-19 (D.C. Cir. 1999) (PMOI I); Nat’l

Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192,

195-96 (D.C. Cir. 2001) (NCRI I); People’s Mojahedin Org. of

Iran v. U.S. Dep’t of State, 327 F.3d 1238, 1239 (D.C. Cir.

2003) (PMOI II). The National Council of Resistance of Iran

(NCRI), which the United States Department of State (State)

considers an alias or alter ego of the PMOI, has challenged its

FTO status twice—once with the PMOI and once on its own.

See NCRI I, 251 F.3d at 197; Nat’l Council of Resistance of Iran

1

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.

3

v. Dep’t of State, 373 F.3d 152, 154 (D.C. Cir. 2004) (NCRI II).

In NCRI I, the court remanded the petition to the Secretary to

provide certain due process protections to the PMOI and the

NCRI. See 251 F.3d at 209. In the other three cases, including

both petitions for review following remand in NCRI I, the court

denied the petitioners’ challenges.

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.

A.

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

4

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)(1). See Kahane

Chai v. Dep’t of State, 466 F.3d 125, 127 (D.C. Cir. 2006);

NCRI II, 373 F.3d at 154. A designated organization can

attempt to avoid these consequences by seeking review in this

court no later than thirty days after publication in the Federal

Register of the Secretary’s designation, amended designation or

determination in response to a petition for revocation. See 8

U.S.C. § 1189(c)(1). Our review is based “solely upon the

administrative record, except that the Government may submit,

for ex parte and in camera review, classified information” that

the Secretary used to reach her decision. Id. § 1189(c)(2). The

review “sounds like the familiar procedure normally employed

by the Congress to afford due process in administrative

proceedings” and is “reminiscent of other administrative

review.” NCRI I, 251 F.3d at 196-97. Employing “APA-like

language,” PMOI I, 182 F.3d at 22, the statute requires that we

“hold unlawful and set aside a designation, amended

designation, or determination in response to a petition for

revocation” that we find:

5

(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, 182 F.3d at 23.

B.

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

6

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. 182 F.3d at 25. In her

1999 redesignation, the Secretary coupled the PMOI with the

NCRI, which the Secretary considered the PMOI’s alter ego or

alias. See 1999 Designation. On review, we held that the

Secretary had substantial support to so conclude but we

remanded after concluding that the PMOI and the NCRI had

been denied due process. See NCRI I, 251 F.3d at 209.

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, 327 F.3d

at 1245. The Secretary’s 2001 Redesignation also concluded

that the NCRI was the PMOI’s alter ego and was thus also

properly designated an FTO. At the same time, State assured

the NCRI that it would make a de novo determination of its FTO

designation after completing a review of the materials the NCRI

had submitted to the Secretary. See NCRI II, 373 F.3d at 155

(citing Letter of Ambassador Francis X. Taylor, Coordinator for

Counterterrorism, U.S. Dep’t of State, at 1 (Oct. 5, 2001)). In

May 2003, the Secretary left in place the 1999 Designation and

2001 Redesignation of the NCRI as an alias of the PMOI and an

FTO and, on review, we upheld the Secretary’s decision. See

NCRI II, 373 F.3d at 154 (denying petition for review because

“the Secretary’s latest designation complied with the governing

statute and all constitutional requirements”). Before our

7

decision issued, the Secretary had already redesignated the

PMOI again in October 2003.2 See 2003 Redesignation.

Shortly after NCRI II, and while the 2003 Redesignation of

the PMOI was still in effect, the Congress lessened the

Secretary’s administrative burden by amending AEDPA to

remove the two-year limitation on an FTO designation. See

Intelligence Reform and Terrorist Prevention Act of 2004

§ 7119. A designation no longer lapses. Instead, a designated

organization may seek revocation two years after the designation

is made or, if the designated organization has previously filed a

petition for revocation, two years after that petition is resolved.

8 U.S.C. § 1189(a)(4)(B)(ii). To seek revocation, an FTO “must

provide evidence in that petition that the relevant circumstances

. . . are sufficiently different from the circumstances that were

the basis for the designation such that a revocation with respect

to the organization is warranted.” Id. § 1189(a)(4)(B)(iii). The

Secretary has 180 days from the date of the petition to make her

revocation decision. Id. § 1189(a)(4)(B)(iv)(I). In making her

decision, the Secretary may rely on classified information,

which “shall not be subject to disclosure for such time as it

remains classified, except that such information may be

disclosed to a court ex parte and in camera for purposes of

judicial review.” Id. § 1189(a)(4)(B)(iv)(II). If five years elapse

without a petition for revocation from the FTO, the Secretary

2

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.

8

conducts her own review to determine if revocation is

appropriate. Id. § 1189(a)(4)(C)(i). Unlike a determination

made in response to a petition for revocation, her ex mero motu

decision is not judicially reviewable. Id. § 1189(a)(4)(C)(ii).

While the Secretary may revoke a designation at any time, id.

§ 1189(a)(6)(A), the statute directs that she shall revoke a

designation if she finds that either “the circumstances that were

the basis for the designation have changed in such a manner as

to warrant revocation,” or “the national security of the United

States warrants a revocation,” id.

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

9

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. See 74 Fed. Reg. at 1273-74. She also

provided the PMOI with a heavily redacted 20-page

administrative summary of State’s review of the record, which

summary referred to 33 exhibits, many of which were also

heavily or entirely redacted. See Admin. Summ. (Jan. 8, 2009)

(Unclassified Version); Revised Admin. Summ. (Apr. 24, 2009)

(Unclassified Version). The Secretary’s determination was

based on the administrative record, “supporting exhibits and

supplemental filings by the MEK in support of the Petition, as

well as information from a variety of sources, including the U.S.

Intelligence Community.” Revised Admin. Summ. 2. She

wrote that “in considering the evidence as a whole, the MEK has

not shown that the relevant circumstances are sufficiently

different from the circumstances that were the basis for the 2003

re-designation,” and that “[a]s a consequence, the MEK

continues to be a foreign organization that engages in terrorist

activity . . . or terrorism . . . or retains the capability and intent

to” do so. Id.; see 74 Fed. Reg. at 1273-74. Nevertheless she

also noted:

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.

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

10

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.3

3

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

11

II.

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, 251 F.3d at 208 (designated

organization entitled to “opportunity to be heard ‘at a

meaningful time and in a meaningful manner’” (quoting

Mathews v. Eldridge, 424 U.S. 319, 333 (1976))). In other

words, even were we to agree with State that the record is

sufficient, we cannot uphold the designation absent the

procedural safeguards required by our precedent. Specifically,

our cases require the Secretary to notify the PMOI of the

unclassified material “upon which [s]he propose[d] to rely” and

to allow the PMOI “the opportunity to present, at least in written

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 terrorist attack by the MEK since the

organization surrendered to Coalition Forces in 2003, the MEK retains

a limited capability and the intent to use violence to achieve its

political goals”; and “UN inspectors say that much of the information

provided to the UN by the MEK about Iran’s nuclear program has a

political purpose and has been wrong.” Suppl. Admin. R. (filed Oct.

27, 2009).

12

form, such evidence as [it] may be able to produce to rebut the

administrative record or otherwise negate the proposition that”

it is an FTO. NCRI I, 251 F.3d at 209.

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.4 And

even though the PMOI was given the opportunity to include in

the record its own evidence supporting delisting, it had no

opportunity to rebut the unclassified portion of the record the

Secretary was compiling—an omission, the PMOI argues, that

deprived it of the due process protections detailed in our

previous decisions. See Pet’r’s Br. 23 (“[T]he Secretary’s

decision is procedurally infirm because PMOI was given no

opportunity to rebut the administrative record . . . .”).

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, 251 F.3d at 205 (quoting Morrissey v. Brewer, 408 U.S.

471, 481 (1972)). Within that framework, State argues, the

Secretary provided the PMOI with all of the process

constitutionally due by informally meeting with the PMOI in

October 2008 (at the PMOI’s request), by allowing the PMOI to

supplement the administrative record with evidence of its own

and by sharing unclassified material with the PMOI (but not

before her denial of the revocation petition). See Resp’ts’ Br.

18, 44-45 (citing PMOI II, 327 F.3d at 1242; NCRI I, 251 F.3d

4

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, 251 F.3d at 208, State does not

suggest the Secretary had this concern.

13

at 208-09) (PMOI received “notice along with the opportunity

to be effectively heard” and “nothing more is required by this

Court”). State also urges that, even if the Secretary should have

turned over the unclassified portion of the record before its

January 2009 decision, her failure to do so was harmless.

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.5

5

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

14

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

251 F.3d at 209 (“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[, but] . . . without the due

process protections which we have outlined, we cannot presume

the contrary either.”). Far from assuming that the classified

record obviated further review, we held that our limited role “is

not sufficient to supply the otherwise absent due process

protection.” Id. at 209.6

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.

6

In NCRI I, by declining to assume that the PMOI could not have

changed the Secretary’s mind in the absence of due process

15

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, 182 F.3d

at 19, 25, State argues that the Secretary may consider “sources

named and unnamed, the accuracy of which we have no way of

evaluating,” and that we cannot make any “judgment

whatsoever regarding whether the material before the Secretary

is or is not true.” Nevertheless, to the extent we defer to the

Secretary’s fact-finding process, we have done so with the

understanding that the Secretary has adhered to the procedural

safeguards of the due process clause, see NCRI I, 251 F.3d at

209, and afforded the designated organization a fair opportunity

to respond to the unclassified record.

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

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 251 F.3d at 209.

In other words, because of the due process denial, we declined to

consider whether the record nevertheless substantially supported the

Secretary’s determination. And while it is true that we held a similar

due process denial harmless in Kahane Chai, we did so only because

the government, in response to the petitioners’ objections, “offered to

do and in 2004 did a de novo determination of their status” with the

attendant “opportunity to inspect and to supplement the record upon

which the review would be based.” 466 F.3d at 132.

16

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, 373

F.3d at 155 (“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.’” (quoting Letter of

Ambassador Francis X. Taylor, Coordinator for

Counterterrorism, U.S. Dep’t of State, at 1 (Oct. 5, 2001))).

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, 373 F.3d at 159 (quoting 8 U.S.C.

§ 1889A(b)(3)(D)). Some of the reports included in the

Secretary’s analysis on their face express reservations about the

accuracy of the information contained therein. See, e.g., Suppl.

Admin. R., MEK-11 (describing “possible plans to attack [the]

international zone in Baghdad” but conceding that “the ultimate

sources of the information was [sic] unknown and as such, their

access, veracity, and motivations were unknown”). Similarly,

while including reports about the Karbala suicide attack plot

described above, the Secretary did not indicate whether she

accepted or discredited the reports and we do not know whether

the PMOI can rebut the reports.

17

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

fundraising 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, 466 F.3d

at 129 (citing PMOI I, 182 F.3d at 25). Without knowing

whether, or how, the Secretary evaluated the record material, we

are unable to do so.

III.

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.” 251 F.3d at 209.

We thus leave the designation in place but remand with

instructions to the Secretary to provide the PMOI the

opportunity to review and rebut the unclassified portions of the

record on which she relied. In so doing, we emphasize two

things:

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

18

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,7 AEDPA does not allow access to the classified

record as it makes clear that classified material “shall not be

subject to disclosure for such time as it remains classified,

except that such information may be disclosed to a court ex

parte and in camera for purposes of judicial review.” 8 U.S.C.

§ 1189(a)(4)(B)(iv)(II); see id. § 1189(c)(2) (providing for

court’s “ex parte and in camera review” of “classified

information used in making the designation”). Our cases under

AEDPA have suggested that this procedure can satisfy due

process requirements, at least where the Secretary has not relied

critically on classified material and the unclassified material

provided to the FTO is sufficient to justify the designation. See

NCRI II, 373 F.3d at 159-60; PMOI II, 327 F.3d at 1243 (“We

already decided in [NCRI I] that due process required the

disclosure of only the unclassified portions of the administrative

record.”) (emphasis in original); NCRI I, 251 F.3d at 202, 208-

09 (“We acknowledge that in reviewing the whole record, we

have included the classified material[, but] . . . we will not and

cannot disclose the contents of the record,” which “is within the

privilege and prerogative of the executive”); see also Jifry v.

Fed. Aviation Admin., 370 F.3d 1174, 1182, 1184 (D.C. Cir.

2004) (pilot denied licensure has no right to access to classified

record because “[t]he due process protections afforded . . .

parallel those provided under similar circumstances in [NCRI I

and PMOI II], and are sufficient to satisfy our case law”); Holy

Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 164

7

State 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.

19

(D.C. Cir. 2003) (“HLF’s complaint, like that of the Designated

Foreign Terrorists Organizations in [NCRI I and PMOI II], that

due process prevents its designation [under a different law]

based upon classified information to which it has not had access

is of no avail.”). We note, however, that none of the AEDPA

cases decides whether an administrative decision relying

critically on undisclosed classified material would comport with

due process because in none was the classified record essential

to uphold an FTO designation. But they do indicate that, for the

purpose of today’s remand, affording PMOI an opportunity to

review and rebut the unclassified portions of the record, coupled

with the Secretary’s assurance that she has evaluated the

material—and the sources therefor—that she relied on to make

her decision, may be sufficient to provide the requisite due

process.

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.

KAREN LECRAFT HENDERSON, Circuit Judge, 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, 251 F.3d at 208 (state’s notice to

designated entities “need not disclose the classified information

to be presented in camera and ex parte to the court under the

statute”); see also PMOI II, 327 F.3d at 1242 (we “already

decided in [NCRI I] that due process required the disclosure of

only the unclassified portions”) (emphasis in original). And we

have upheld against due process challenge an AEDPA

designation that relied on both classified and unclassified

material. See NCRI II, 373 F.3d at 152 (“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.”) (emphasis added).

Although we acknowledged later in the same opinion that the

unclassified record alone would have sufficed to support the

designation, we have consistently and unambiguously followed

this reading of NCRI I in virtually every AEDPA case.1 See id.

1

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 I] 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, 327 F.3d at 1242-43. The court

2

at 159-60 (access argument is “foreclosed by our earlier

decisions in [NCRI I] and PMOI II”); cf. Kahane Chai v. Dep’t

of State, 466 F.3d 125, 129 (D.C. Cir. 2006) (declining to

resolve due process claim because “we can uphold the

designations based solely upon the unclassified portion of the

administrative record”). Moreover, other precedent also affirms

administrative decisions relying on classified material, each

rejecting a due process challenge on the basis of PMOI II and

NCRI I.2 While these decisions are not under AEDPA, they treat

went on to note that “even if we err in describing the process due, even

had the Petitioner been entitled to have its counsel or itself view the

classified information, the breach of that entitlement has caused it no

harm.” Id. at 1243. But I read the subjunctive phrase beginning with

“even if” as an alternative holding which means both holdings

constitute precedent. See Natural Res. Def. Council, Inc. v. Nuclear

Regulatory Comm'n, 216 F.3d 1180, 1189 (D.C. Cir. 2000) (“‘[W]here

there are two grounds, upon either of which an appellate court may

rest its decision, and it adopts both, the ruling on neither is obiter

[dictum], but each is the judgment of the court, and of equal validity

with the other.’” (quoting Dooling v. Overholser, 243 F.2d 825, 828

(D.C. Cir. 1957) (internal quotations omitted))).

2

See Jifry v. Fed. Aviation Admin., 370 F.3d 1174, 1184 (D.C.

Cir. 2004) (“While the pilots protest that without knowledge of the

specific evidence on which TSA relied, they are unable to defend

against the charge that they are security risks, the court has rejected

the same argument in the terrorism listing cases. The due process

protections afforded to them parallel those provided under similar

circumstances in [NCRI I and PMOI II], and are sufficient to satisfy

our case law.”); Holy Land Found. for Relief & Dev. v. Ashcroft, 333

F.3d 156, 164 (D.C. Cir. 2003) (“That the designation comes under an

Executive Order issued under a different statutory scheme makes no

difference. HLF's complaint, like that of the Designated [FTOs] in the

earlier cases, that due process prevents its designation based upon

classified information to which it has not had access[,] is of no

avail.”).

3

our AEDPA precedent as binding and are, in any event, binding

themselves.

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.