The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 2000 Decided June 8, 2001
No. 99-1438
National Council of Resistance of Iran and
National Council of Resistance of Iran,
U.S. Representative Office,
Petitioners
v.
Department of State and
Madeleine K. Albright, Secretary of State,
Respondents
Consolidated with
99-1439
On Petitions for Review of an Order of the
Secretary of State
Martin D. Minsker argued the cause for petitioners Na-
tional Council of Resistance of Iran and National Council of
Resistance of Iran, U.S. Representative Office. With him on
the briefs were Scott L. Nelson, Ellen Fels Berkman and
Jody Manier Kris.
Jacob A. Stein argued the cause for petitioner People's
Mojahedin Organization of Iran. With him on the briefs were
George A. Fisher and Ronald G. Precup.
Douglas N. Letter, Litigation Counsel, U.S. Department of
Justice, argued the cause for respondents. With him on the
briefs were David W. Ogden, Acting Assistant Attorney
General, H. Thomas Byron, III, Attorney, and Wilma A.
Lewis, U.S. Attorney at the time the briefs were filed.
Before: Edwards, Chief Judge, Sentelle and Henderson,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Two organizations, the National
Council of Resistance of Iran and the People's Mojahedin of
Iran, petition for review of the Secretary's designation of the
two as constituting a "foreign terrorist organization" under
the Anti-Terrorism and Effective Death Penalty Act of 1996,
raising both statutory and constitutional arguments. While
we determine that the designation was in compliance with the
statute, we further determine that the designation does vio-
late the due process rights of the petitioners under the Fifth
Amendment, and we therefore remand the case for further
proceedings consistent with this opinion.
The Statute
Under the Anti-Terrorism and Effective Death Penalty Act
of 1996 ("Anti-Terrorism Act" or "AEDPA"), 8 U.S.C.
s 1189, the Secretary of State is empowered to designate an
entity as a "foreign terrorist organization." Id. See general-
ly People's Mojahedin Org. of Iran v. Dep't of State, 182 F.3d
17 (D.C. Cir. 1999). The consequences of that designation are
dire. The designation by the Secretary results in blocking
any funds which the organization has on deposit with any
financial institution in the United States. 18 U.S.C.
s 2339B(a)(2). Representatives and certain members of the
organization are barred from entry into the United States. 8
U.S.C. s 1182(a)(3)(B)(i)(IV & V). Perhaps most important-
ly, all persons within or subject to jurisdiction of the United
States are forbidden from "knowingly providing material
support or resources" to the organization. 18 U.S.C.
s 2339B(a)(1).
Despite the seriousness of the consequences of the determi-
nation, the administrative process by which the Secretary
makes it is a truncated one. In part, the AEDPA imposes
the Secretary's duties in "APA-like language." People's Mo-
jahedin, 182 F.3d at 22. The Secretary compiles an "admin-
istrative record" and based upon that record makes "find-
ings." Cf. Administrative Procedure Act, 5 U.S.C. s 557(c).
If the Secretary makes the critical findings that "an entity is
a foreign organization engaging in terrorist activities that
threaten the national security of the United States," People's
Mojahedin, 182 F.3d at 19 (construing 8 U.S.C. s 1189), that
entity then suffers the consequences listed above.
Following the administrative designation there is judicial
review. 8 U.S.C. s 1189(b). While that statutory procedure,
so far as it goes, sounds like the familiar procedure normally
employed by the Congress to afford due process in adminis-
trative proceedings, the similarity to process afforded in other
administrative proceedings ends there. As we have observed
before, this "statute ... is unique, procedurally and substan-
tively." People's Mojahedin, 182 F.3d at 19. The unique
feature of this statutory procedure is the dearth of procedural
participation and protection afforded the designated entity.
At no point in the proceedings establishing the administrative
record is the alleged terrorist organization afforded notice of
the materials used against it, or a right to comment on such
materials or the developing administrative record. Nothing
in the statute forbids the use of "third hand accounts, press
stories, material on the Internet or other hearsay regarding
the organization's activities...." Id. at 19. The Secretary
may base the findings on classified material, to which the
organization has no access at any point during or after the
proceeding to designate it as terrorist.
The entity may obtain judicial review by application to this
court not later than thirty days after the publication of the
designation in the Federal Register. 8 U.S.C. s 1189(b)(1).
But that review is quite limited. Review is based solely upon
the administrative record. Granted this is not in itself an
unusual limitation, but one common to many administrative
reviews. However, under the AEDPA the aggrieved party
has had no opportunity to either add to or comment on the
contents of that administrative record; and the record can,
and in our experience generally does, encompass "classified
information used in making the designation," as to which the
alleged terrorist organization never has any access, and which
the statute expressly provides the government may submit to
the court ex parte and in camera. Id. s 1189(b)(2).
The scope of judicial review is limited as well. We are to
hold unlawful and set aside designations that we find to be
(A) arbitrary, capricious, an abuse of discretion or other-
wise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or
immunity;
(C) in excess of statutory jurisdiction, authority, or limi-
tation, or short of statutory right;
(D) lacking substantial support in the administrative rec-
ord taken as a whole or in classified information submit-
ted to the court under paragraph (2), or
(E) not in accord with the procedures required by law.
Id. s 1189(b)(3). Again, this limited scope is reminiscent of
other administrative review, but again, it has the unique
feature that the affected entity is unable to access, comment
on, or contest the critical material. Thus the entity does not
have the benefit of meaningful adversary proceedings on any
of the statutory grounds, other than procedural shortfalls so
obvious a Secretary of State is not likely to commit them.
Designations under the statute persist for two years and
are renewable for additional two-year periods by the same
procedure as the original designation. Id. s 1189(a)(4)(B).
In the decisions now under review, we consider two petitions
under s 1189(b).
The Petitions
By notice of October 8, 1999, the Secretary of State, inter
alia, redesignated petitioner People's Mojahedin of Iran
("PMOI") as a foreign terrorist organization pursuant to 8
U.S.C. s 1189. 64 Fed. Reg. 55,112 (1999). The two-year
redesignation of the PMOI extended the October 8, 1997
designation of the same group as a terrorist organization.
This court rejected a petition for review of the 1997 designa-
tion in People's Mojahedin Org. of Iran v. Dep't of State, 182
F.3d 17 (D.C. Cir. 1999). In the 1999 designation, then-
Secretary Madeleine Albright for the first time included the
designation of the second petitioner before us, the National
Council of Resistance of Iran ("NCRI"). The Secretary
found that the NCRI is an alter ego or alias of the PMOI.1
Both petitioners argue that the Secretary's designation de-
prives them of constitutionally protected rights without due
process of law. NCRI argues additionally that the Secretary
had no statutory authority to find that it was an alias or alter
ego of PMOI. For the reasons set forth below, we agree with
the due process argument, while rejecting the statutory claim.
Analysis
A. The Alias Finding
1. Record Support
NCRI launches a two-pronged attack on the Secretary's
designation of it as an alias for the PMOI. Its first argument
__________
1 A third petitioner, National Council of Resistance of Iran-
United States ("NCRI-US") joined the brief of NCRI, fearful that
because the Secretary did not distinguish between the NCRI and
NCRI-US it may have been included in the designation as well. In
its brief to this court, the United States agrees that NCRI-US was
not so designated, and we therefore do not separately consider any
claims on behalf of that entity.
is a three-step analysis forwarding the proposition that "the
Secretary's alias designation of NCRI has no support in the
record." Brief of NCRI at 6. The first step of its reasoning
is the generally uncontroversial proposition that "Article III
[of the Constitution] forbids courts from rubberstamping
Executive decisions." Id. at 7. In support of this premise of
its syllogism, counsel reminds us that the courts have reject-
ed interpretations of statutes that "cast Article III judges in
the role of petty functionaries ... required to enter as a court
judgment an executive officer's decision but stripped of capac-
ity to evaluate independently whether the executive decision
is correct." Gutierrez de Martinez v. Lamagno, 515 U.S. 417,
426 (1995). While there will be unreviewable Executive deci-
sions, and legitimate differences of opinion as to which deci-
sions fall within the rubberstamp category condemned in
Gutierrez, and which are simply unreviewable decisions, see
generally id. at 448-49 (Souter, J., dissenting), we can accept
the Council's general proposition for purposes of this discus-
sion and move to the further steps of its three-part analysis.
In applying the rubberstamping premise to the present
designation of the NCRI as an alias of the PMOI, the Council
draws from the Act and from our application of it in People's
Mojahedin the principle that designations under the Act must
survive a review in which the court determines that the
designation has "substantial support in the administrative
record taken as a whole or in classified information submitted
to the court," 8 U.S.C. s 1189(b)(3)(D), and is not "arbitrary,
capricious, an abuse of discretion or otherwise not in accor-
dance with law." Id. s 1189(b)(3)(A).2 Again, the basic
proposition, being drawn from the words of the statute, may
be assumed. Although the Council's brief disputes our prior
application of the test in People's Mojahedin and seems to
invite us to overrule that decision, this panel has no power to
do so, even if we were inclined to accept the invitation. See,
e.g., LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996)
__________
2 The Council does not rely on the other requirements of
s 1189(b)(3).
(en banc) ("One three-judge panel ... does not have the
authority to overrule another three-judge panel of the
court."); United States v. Kolter, 71 F.3d 425, 431 (D.C. Cir.
1995) ("This panel would be bound by [a prior] decision even
if we did not agree with it.").
Proceeding from the two premises--that the AEDPA does
not require this Court to rubberstamp the Secretary's deci-
sion, and that the process of reviewing without rubberstamp-
ing involves applying the substantial-record-support and
arbitrary-and-capricious standards--the NCRI concludes that
we must set aside the designations, as "there is no support in
the 1999 SAR [Summary of Administrative Report] for the
fundraising allegation." Brief of NCRI at 12. However, that
conclusion depends upon our accepting not only the first two
steps of the syllogism, but also the Council's factual proposi-
tion that the only difference between the 1999 alias designa-
tion and the 1997 review in which the Secretary did not
designate the Council as an alias of the PMOI is an FBI
agent's hearsay declaration concerning the use of the Nation-
al Council of Resistance name in fundraising for the PMOI in
the United States. It is at this point that the Council's
reasoning conspicuously founders, even if we uncritically ac-
cept the first two steps.
First, we can neither confirm nor deny that the agent's
declaration is the only difference in the record support be-
tween the 1997 and 1999 records. We may under the
AEDPA consider the entire record before us including any
classified submissions under s 1189(b)(1)(2). In fact, the
"substantial support" test relied upon by the Council ex-
pressly empowers us to set aside the designations only if
they "lack[ ] substantial support in the administrative record
taken as a whole or in classified information submitted to
the courts under paragraph (2)." 8 U.S.C. s 1189(b)(3)(D).
As we recognized in People's Mojahedin, "we will not, can-
not," in a case under this statute "lay out the 'facts.' " 182
F.3d at 19. As we further recognized in that decision, our
only function in reviewing a designation of an organization
as a foreign terrorist organization "is to decide if the Secre-
tary, on the face of things, had enough information before
her to come to the conclusion that the organizations were
foreign and engaged in terrorism." Id. at 25. We see no
greater function for our review of the alias designation.
We have, as the statute mandates, reviewed the administra-
tive record taken as a whole and the classified information
submitted to the court. We conclude that the Secretary's
designation of the National Council of Resistance as an
alias for the PMOI does not lack substantial support and
that designation is neither arbitrary, capricious, nor other-
wise not in accordance with law.
The Council argues that we must nonetheless strike down
the alias designation in 1999 because the State Department in
1997 determined that the NCRI was not an alias of PMOI.
In the Council's view, this new designation is barred by the
principle that "when an executive agency switches position, it
must provide a reasoned explanation for the change." Brief
of NCRI at 16 (citing Motor Vehicle Manufacturers Ass'n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)). Again,
the principle of law offered by the Council is incontrovertible,
but it does not apply to this case. If the Secretary had taken
the 1997 record and reached a different conclusion, presum-
ably she would have to offer us some reason for the change.
Whether this reason would have to be disclosed to the
appellants is arguable given the role of classified material in
reviews under this statute but she might at least have been
required to explain to the court the reason for the change.
However, the Secretary was not acting on the same record.
There is no logical reason for concluding that there has been
no change in either the facts or the Secretary's knowledge of
the facts between the 1997 refusal to designate and the 1999
designation. In short, on the record at hand, we cannot find
that the Secretary erred in her application of the statute.
We therefore must affirm that designation unless the Secre-
tary overstepped either statutory or constitutional authority.
2. The Statutory Authority for the Alias Device
The Council's second argument is that the Secretary has
made no statutory finding that the NCRI meets the three
elements for designation as a foreign terrorist organization:
That is, that the Council is (1) a foreign terrorist organization,
(2) engaging in terrorist activities that (3) threatens the
national security of the United States. People's Mojahedin,
182 F.3d at 19 (construing 8 U.S.C. s 1189). Only in one
sense is this true. That is, the Secretary did not expressly
find that the NCRI is that sort of organization doing those
sorts of things under its own name. The Secretary did,
however, find that the PMOI is a foreign organization engag-
ing in terrorist activities to threaten the national security of
the United States, and that the NCRI and the PMOI are one
and the same. This is tantamount to finding that the NCRI
itself meets those criteria. Logically, indeed mathematically,
if A equals B and B equals C, it follows that A equals C. If
the NCRI is the PMOI, and if the PMOI is a foreign terrorist
organization, then the NCRI is a foreign terrorist organiza-
tion also.
The Council argues, without citation of authority, that
because the statute does not expressly allow for an alias
designation, the rationale followed by the Secretary in the
present case is beyond her statutory power. Again, this
argument fails. It is true that the Secretary, like any federal
agency, has no power, no "capacity to act" except by "delega-
tion of authority ... from the legislature." Railway Labor
Executives' Ass'n v. Nat'l Mediation Bd., 29 F.3d 665, 670
(D.C. Cir. 1994) (en banc). It is also true that Congress did
not expressly empower the Secretary to use the alias ratio-
nale. It is further true, however, that the delegation from
Congress may be "either expressed or implied." Id. Here,
the power to designate an organization as a foreign terrorist
organization if it commits the necessary sort of terrorist acts
under its own name implies the authority to so designate an
entity that commits the necessary terrorist acts under some
other name.
It would simply make no sense for us to hold that Congress
empowered the Secretary to designate a terrorist organiza-
tion--so as to block any funds which such organization has on
deposit with any financial institution in the United States, to
bar its representatives and many or most of its members
from entry into the United States, and to prevent anyone in
the United States from providing material resources or sup-
port the organization--only for such periods of time as it took
such organization to give itself a new name, and then let it
happily resume the same status it would have enjoyed had it
never been designated. If the Secretary has the power to
work those dire consequences on an entity calling itself
"Organization A," the Secretary must be able to work the
same consequences on the same entity while it calls itself
"Organization B." We cannot presume that Congress intend-
ed so vain an act as the Council's argument would have us
conclude. Cf. First National City Bank v. Banco Para el
Comercio Exterior de Cuba, 462 U.S. 611 (1983) (Cuban bank
established by Cuban government as separate judicial entity
would not be so treated due to the relationship between the
bank and the Cuban government).
As this is the last of the statutory arguments advanced by
either petitioner, the designations before us must stand,
unless they fail on constitutional grounds.
B. The Due Process Claim
Both petitioners assert that by designating them without
notice or hearing as a foreign terrorist organization, with the
resultant interference with their rights to obtain and possess
property and the rights of their members to enter the United
States, the Secretary deprived them of "liberty, or property,
without due process of law," in violation of the Fifth Amend-
ment of the United States Constitution. We agree. The
United States's defense against the constitutional claims of
the petitioners is two-fold: (1) that the petitioners have no
protected constitutional rights and (2) that even if they have
such rights, none are violated. Both lines of defense fail.
1. The Presence of Petitioners
We consider first the eligibility of the petitioners for consti-
tutional protection. In resisting the claims of the PMOI to
due process protection, the government asserts that "nearly
all of these arguments are foreclosed by the binding prece-
dent of this Court in the People's Mojahedin published
decision, where this Court rejected those same arguments."
Brief of the Secretary at 20. In fact, in that decision this
court rejected only the statutory arguments. We did so after
concluding that the petitioners in that case had established no
constitutional entitlement because "a foreign entity without
property or presence in this country has no constitutional
rights, under the Due Process Clause or otherwise." People's
Mojahedin Org. of Iran v. Dep't of State, 182 F.3d 17, 22
(D.C. Cir. 1999). We left the constitutional questions for such
time as a designated foreign terrorist organization might be
able to establish its constitutional presence in the United
States. Therefore, that decision cannot foreclose constitu-
tional claims asserted by the PMOI in this case unless for
some reason it forecloses the possibility of our concluding
that the entities before us now have a presence in this
country. It does not.
First, for People's Mojahedin to foreclose any question as
to the NCRI, the government must rely on the two entities
being one, a proposition we have been willing to accept for
purposes of the alias designation which brings NCRI within
the ambit of the terrorist designation bestowed upon the
PMOI. Even accepting their identity for all purposes, the
People's Mojahedin decision cannot foreclose our reconsidera-
tion of the presence question, just as the 1997 failure to
designate the NCRI as an alias for the PMOI did not bar the
Secretary from reconsidering that question in 1999. We
accepted, and continue to accept, the government's proposi-
tion in support of the 1999 designation that the record is not
the same and the decision is not the same as in 1997.
Therefore, the fact that the PMOI had not established a
constitutional presence in the United States in 1997 under its
own name cannot possibly establish that neither the PMOI
nor the NCRI had established a presence by 1999. And
while we accept the government's proposition that neither the
record nor the classified information establishes a presence
for the PMOI under its own name, we cannot agree that the
same is true as to the NCRI.
The government admits that the record before us reflects
that the NCRI "has an overt presence within the National
Press Building in Washington, D.C.," and further recognizes
that the NCRI claims an interest in a small bank account.
The government attempts to blow this away by saying that
foreign entities " 'receive constitutional protections [only]
when they have come within the territory of the United
States and developed substantial connections within this
country.' " Brief of the Secretary at 39 (quoting United
States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990)) (brack-
eted material and emphasis added by the Secretary). Ac-
cepting that quotation, with the bracketed addition of "only"
at face value, the Secretary asserts that this evidence in the
record would not support a conclusion that the Council has
developed substantial connections. On that basis, the Secre-
tary then asserts that the NCRI is not entitled to constitu-
tional protection. We reject the Secretary's position for
multiple reasons.
First, the Secretary's construction of the quotation from
Verdugo-Urquidez is misleading. In context, the full sen-
tence by the Supreme Court did contain the word "only" but
not in the same position as the government brackets it. The
High Court rejected the application of several prior cases--
Plyler v. Doe, 457 U.S. 202 (1982); Kwong Hai Chew v.
Colding, 344 U.S. 590 (1953); Bridges v. Wixon, 326 U.S. 135
(1945); Russian Volunteer Fleet v. United States, 282 U.S.
481 (1931); Wong Wing v. United States, 163 U.S. 228 (1896);
and Yick Wo v. Hopkins, 118 U.S. 356 (1886)--which were
offered by an alien who had been arrested. The Court
stated:
These cases, however, establish only that aliens receive
constitutional protections when they have come within
the territory of the United States and developed substan-
tial connections with this country.
Verdugo-Urquidez, 494 U.S. at 271 (emphasis added). The
critical adverb limits the application of prior precedent. In
Verdugo-Urquidez, the Court rejected the claims of a Mexi-
can citizen arrested in Mexico to constitutional protections
under the United States Constitution outside the United
States. Neither the word "only" nor anything else in the
holding purports to establish whether aliens who have en-
tered the territory of the United States and developed con-
nections with this country but not substantial ones are enti-
tled to constitutional protections.
In any event, we are not undertaking to determine, as a
general matter, how "substantial" an alien's connections with
this country must be to merit the protections of the Due
Process Clause or any other part of the Constitution. Rath-
er, we have reviewed the entire record including the classified
information and determine that NCRI can rightly lay claim to
having come within the territory of the United States and
developed substantial connections with this country. We
acknowledge that in reviewing the whole record, we have
included the classified material. As we noted above and in
People's Mojahedin, we will not and cannot disclose the
contents of the record. We note further that the PMOI has
made little serious assertion of an independent presence in
the United States. Unfortunately for the cause of the Secre-
tary, the PMOI does not need one. Insofar as PMOI's
claimed presence is concerned, the United States is now hoist
with its own petard. The Secretary concluded in her designa-
tion, which we upheld for the reasons set forth above, that the
NCRI and the PMOI are one. The NCRI is present in the
United States. If A is B, and B is present, then A is present
also.
The Secretary offers one further argument for the proposi-
tion that petitioners are not entitled to the protection of the
Due Process Clause. The Secretary asserts that the United
States exercises the powers of external sovereignty indepen-
dent of the affirmative grants of the Constitution as an
inherent attribute of sovereignty under international law.
See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 765 (1972). As
a result of that sovereignty, the Secretary contends, the
government interacts with foreign entities not within the
constitutional framework, but through the system of interna-
tional law and diplomacy. Specifically, the Secretary asserts
that "foreign governmental entities therefore 'lie[ ] outside
the structure of the union.' " Brief of the Secretary at 35
(quoting Principality of Monaco v. Mississippi, 292 U.S. 313,
330 (1934)). This argument need not detain us long.
It is certainly true that sovereign states interact with each
other through diplomacy and even coercion in ways not
affected by constitutional protections such as the Due Process
Clause. However, since neither the PMOI nor the NCRI is a
government, none of the authorities offered by the Secretary
have any force. The closest the Secretary can come is to
assert that the Council has described itself as a "government
in exile." That untested claim is not sufficient by itself to
bring the Council within the ambit of authorities governing
the interrelationship of two sovereigns. If the United States
were to recognize the Council as a government, or even
perhaps to deal with it as if it were a government, then the
result might be different. But on the present record, the
Secretary has deemed the Council to be nothing but a foreign
terrorist organization, and it is as such that the Secretary
must litigate with that entity.
The PMOI and NCRI have entered the territory of the
United States and established substantial connections with
this country. The cases distinguished by the Verdugo-
Urquidez Court make plain that both organizations therefore
are entitled to the protections of the Constitution. See, e.g.,
Kwong Hai Chew v. Colding, 344 U.S. at 596 (holding that an
alien who permanently resided in the United States was "a
person within the protection of the Fifth Amendment" and
therefore was entitled to due process); Bridges v. Wixon, 326
U.S. at 148 (holding that a permanent alien resident was
entitled to the First Amendment's guarantees of free speech
and press); Russian Volunteer Fleet v. United States, 282
U.S. at 489, 491-92 (holding that a Russian corporation whose
property was taken by the United States was "an alien
friend," and hence deserved protection under the Fifth
Amendment's Takings Clause); Wong Wing v. United States,
163 U.S. at 238 (holding that permanent alien residents were
entitled to due process under the Fifth Amendment, and
indictment by grand jury under the Sixth Amendment); and
Yick Wo v. Hopkins, 118 U.S. at 369 (holding that permanent
alien residents deserved protection under the Fourteenth
Amendment's Due Process Clause). We therefore proceed to
consider whether the PMOI and NCRI have been deprived of
a constitutional right.
2. The Due Process Claims
a. The deprivation
The government argues that even accepting the proposition
that petitioners are entitled to the protection of the Due
Process Clause of the Fifth Amendment, the designation
process and its consequences do not deprive them of life,
liberty, or property. The Secretary contends that this ques-
tion is settled by Paul v. Davis, 424 U.S. 693 (1976), in which
the Supreme Court held that the government does not,
simply by the act of defaming a person, deprive him of liberty
or property rights protected by the Due Process Clause. Id.
at 708-10. However, Paul v. Davis held much more than the
point for which the government asserts it.
That case concerned the stigmatizing of plaintiffs by police
officers distributing a flyer listing them among "active shop-
lifters." In reversing a circuit decision that the dissemination
of such information implicated the Due Process Clause, the
High Court entered the holding upon which the government
relies. But in doing so, it analyzed and distinguished its
earlier decision in Wisconsin v. Constantineau, 400 U.S. 433
(1971). In Constantineau, a state statute empowered a local
police chief, without notice or hearing to a citizen, to cause a
notice to be posted in all retail outlets that that person was
one who "by excessive drinking" exhibited specified undesir-
able "traits, such as exposing himself or family 'to want' or
becoming 'dangerous to the peace' of the community." Id. at
434 (quoting Wis. Stat. s 176.26 (1967)). The Constantineau
Court held that this stigmatizing posting without notice or
hearing constituted a violation of the Fifth Amendment Due
Process Clause. In explaining its refusal to follow Constanti-
neau, the Paul Court noted specific language from the Con-
stantineau holding:
Where a person's good name, reputation, honor, or integ-
rity is at stake because of what the government is doing
to him, notice and opportunity to be heard are essential.
424 U.S. at 708 (quoting Constantineau, 400 U.S. at 437
(emphasis supplied by the Paul Court)).
The Paul Court then went on to note the effects of the
excessive drinking posting beyond stigmatization: That is, the
posted individual could not purchase or even receive by gift
alcoholic beverages within the city limits for one year. Thus,
the Paul Court held, the appropriate rule of law is that where
the government issues a stigmatizing posting (or designation)
as a result of which the stigmatized individual is "deprived
... of a right previously held under state law," due process is
required. Id. The deprivation under the Wisconsin statute
as described in Paul v. Davis was "the right to purchase or
obtain liquor in common with the rest of the citizens." Id.
Like the parties in Constantineau, and unlike the parties in
Paul, petitioners here have suffered more than mere stigma-
tization. Rather than being posted as drunkards, the peti-
tioners have been designated as foreign terrorist organiza-
tions under the AEDPA. Rather than being deprived of the
previously held right to purchase liquor, they have been
deprived of the previously held right to--for example--hold
bank accounts, and to receive material support or resources
from anyone within the jurisdiction of the United States.
Many people, presumably including the members of the
Council and the PMOI, would consider these to be rights
more important than the right to purchase liquor. We con-
sider at least one of them equally entitled to constitutional
protection.
The most obvious rights to be impaired by the Secretary's
designation are the petitioners' property rights. Specifically,
there is before us at least a colorable allegation that at least
one of the petitioners has an interest in a bank account in the
United States. As they are one, if one does, they both do.
We have no idea of the truth of the allegation, there never
having been notice and hearing, but for the present purposes,
the colorable allegation would seem enough to support their
due process claims. Russian Volunteer Fleet v. United
States, 282 U.S. 481, 491-92 (1931), makes clear that a foreign
organization that acquires or holds property in this country
may invoke the protections of the Constitution when that
property is placed in jeopardy by government intervention.
This is not to say that the government cannot interfere with
that and many other rights of foreign organizations present in
the United States; it is only to say that when it does so it is
subject to the Due Process Clause.
The other two consequences of the designation less clearly
implicate interests protected by the Due Process Clause. As
to the right of the members of the organizations to enter the
United States, the Secretary argues with some convincing
force that aliens have no right of entry and that the organiza-
tion has no standing to judicially assert rights which its
members could not bring to court. See, e.g., Takahashi v.
Fish and Game Comm'n, 334 U.S. 410, 419 (1948). The
organizations counter that the present act limits the ability to
travel abroad of its members who are already in the United
States as they know they would be denied readmission.
As to the third consequence of the designation--that is the
banning of the provision of material support or resources to
the organizations--both parties again raise colorable argu-
ments. The petitioners, citing such cases as Apthecker v.
Secretary of State, 378 U.S. 500, 507 (1964), and NAACP v.
Alabama, 357 U.S. 449 (1958), assert that this limitation
deprives their members of First Amendment associational
and expressive rights. The government asserts that the
limitation does not affect the ability of anyone to engage in
advocacy of the goals of the organizations, but only from
providing material support which might likely be employed in
the pursuit of unlawful terrorist purposes as of First Amend-
ment protected advocacy. See Humanitarian Law Project v.
Reno, 205 F.3d 1130, 1133-34 (9th Cir. 2000).
On each of the second and third consequences, each side
offers plausible arguments. But we need not decide as an
initial matter whether those consequences invade Fifth
Amendment protected rights of liberty, because the invasion
of the Fifth Amendment protected property right in the first
consequence is sufficient to entitle petitioners to the due
process of law.
b. When process is due
As petitioners argue, the fundamental norm of due process
clause jurisprudence requires that before the government can
constitutionally deprive a person of the protected liberty or
property interest, it must afford him notice and hearing.
Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). Therefore,
petitioners argue that the Secretary was obligated to give
them notice of her intent to make the declarations of terrorist
status and previous nature, and afford them the opportunity
to respond to the evidence upon which she proposed to make
those declarations and to be heard on the proper resolution of
the questions. Indeed, "[the Supreme] Court consistently has
held that some form of hearing is required before an individu-
al is finally deprived of a property interest." Id. at 333.
At the same time, the Supreme Court has made clear that
"[i]t is by now well established that ' "due process" unlike
some legal rules, is not a technical conception with a fixed
content unrelated to time, place and circumstances.' " Gilbert
v. Homar, 520 U.S. 924, 930 (1997) (quoting Cafeteria and
Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961)).
Otherwise put, "due process is flexible and calls for such
procedural protections as the particular situation demands."
Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Citing Ho-
mar, and Morrissey, inter alia, the United States contends
that since due process consists only of that process which is
due under the circumstances, even given our holding that
petitioners are protected by the due process clause, they are
not due any procedural protection that they have not already
received.
When analyzing the petitioners' claims, and the govern-
ment's defenses, we are mindful that two distinct questions
remain for us to determine. We have dispensed with the
issue as to whether petitioners are entitled to due process;
the questions remaining for us are what due process, and
when. That is, to what procedural devices must the petition-
ers have access in order to protect their interests against the
deprivations worked by the statute, and must that access be
afforded before the Secretary's declaration, or is it sufficient
under the circumstances that such access be available post-
deprivation? The government rightly reminds us that the
Supreme Court established in Mathews v. Eldridge and in-
deed even before that decision,
that identification of the specific dictates of due process
generally requires consideration of three distinct factors:
first, the private interests that will be affected by the
official action; second, the risk of an erroneous depriva-
tion of such interest of the procedure used, and the
probable value, if any, of additional or substitute proce-
dural safeguards; and finally, the government's interest,
including the function involved and the fiscal and admin-
istrative burdens that the additional or substitute proce-
dural requirements would entail.
424 U.S. at 335 (citing Goldberg v. Kelly, 397 U.S. 254, 263-71
(1970)). Unlike the advocates before us, we do not have the
luxury of blurring the question of what and when. We must
determine what process is sufficient to afford petitioners the
protection of the Fifth Amendment, and when--in terms of
pre-deprivation or post-deprivation--that process must be
available.
The Secretary reviews the three elements of the balancing
inquiry set forth in Mathews to conclude that "the balancing
tips decidedly in favor of the government and justifies post-
poning review until after the Secretary's designation." Brief
of the Secretary at 46. However, while we acknowledge that
the factors set forth, being drawn as they are from the
Supreme Court case, are necessarily the right ones, we must
note that the government has made little effort to tie the
factors to the question of "when" as opposed to "what" due
process is to be afforded. As to the private interest, the
government compares the interests asserted by petitioners in
this case with that asserted in United States v. James Daniel
Good Real Property, 510 U.S. 43 (1993). In that case, the
Supreme Court considered "whether, in the absence of exi-
gent circumstances, the Due Process Clause of the Fifth
Amendment prohibits the government in a civil forfeiture
case from seizing real property without first affording the
owner notice and an opportunity to be heard." The Court
expressly held "that it does." Id. at 46. The government
argues from the facts of James Daniel Good Real Property
that the importance of the real estate forfeited in that case
dwarfs the importance of the interests of an organization in,
for example, a bank account, and concludes that somehow
that case supports the proposition that the interest to be
protected here is not sufficiently important to warrant due
process.
This strikes us as a non sequitur. The fact that the
Supreme Court has held that the Fifth Amendment provides
protection for a highly important property interest is at most
neutral on the question of whether that Amendment provides
protection to an arguably less important property interest, or
even a concededly less important one. If anything, the
decision would seem to weigh in favor of affording due
process protection to the interest asserted by petitioners--it
being a property interest as was the interest before the
Supreme Court in James Daniel Good Real Property.
As to the second factor, that is, the risk of erroneous
deprivation, the Secretary again offers an analysis of ques-
tionable relevance. The government reminds us that the
Secretary must, under the statute, consult with the Attorney
General and the Secretary of Treasury before designating a
foreign terrorist organization, 8 U.S.C. s 1189(c)(4), and must
notify congressional leaders seven days before designating
such an organization, id. s 1189(a)(2)(A). While we under-
stand the Secretary's point that more heads are likely to
reach a sounder result, the application of that facially com-
monsensical notion to due process questions is, to put it
charitably, unclear. The United States functions with a
unitary executive, created in Article II of the Constitution
and constrained by the Fifth Amendment from depriving
anyone protected by that Amendment of life, liberty or
property without due process of law. The involvement of
more than one of the servants of that unitary executive in
commencing a deprivation does not create an apparent substi-
tute for the notice requirement inherent in the constitutional
norm. Neither is it apparent how notice by the Article II
branch of government to representatives of the Article I
branch can substitute for notice to the person deprived.
Again, the government has offered nothing that apparently
weighs in favor of a post-deprivational as opposed to pre-
deprivational compliance with due process requirements of
the Constitution.
As to the third Mathews v. Eldridge factor--"the govern-
ment's interest, including the function involved in the fiscal
and administrative burdens that the additional or substitute
procedural requirement would entail," 424 U.S. at 319--the
Secretary rightly reminds us that "no governmental interest
is more compelling than the security of the nation." Haig v.
Agee, 453 U.S. 280, 307 (1981). It is on this very point that
the Secretary most clearly has failed to distinguish between
the what of the Due Process Clause and the when. Certainly
the United States enjoys a privilege in classified information
affecting national security so strong that even a criminal
defendant to whose defense such information is relevant
cannot pierce that privilege absent a specific showing of
materiality. United States v. Yunis, 867 F.2d 617, 623-24
(D.C. Cir. 1989) (applying the Classified Information Proce-
dure Act, 18 U.S.C. App. ss 1-16 (1982)). As we will discuss
further infra, that strong interest of the government clearly
affects the nature--the "what" of the due process which must
be afforded petitioners. It is not immediately apparent how
that affects the "when" of the process--that is, whether due
process may be effectively provided post-deprivation as op-
posed to pre-deprivation.
In support of the argument that the foreign-policy/national-
security nature of the evidence supports the constitutional
adequacy of a post-deprivation remedy, the Secretary offers
our decision in Palestine Information Office v. Shultz, 853
F.2d 932 (D.C. Cir. 1988). The Secretary is correct that in
that case, we held that where the Secretary of State had
ordered the closing of an office (arguably, a foreign ministry)
in this country in response to and in an attempt to curb
alleged terrorist activities, the "burden on the government of
requiring a hearing before the closing of [the] foreign mis-
sion" was sufficient to warrant dispensing with any otherwise
available pre-deprivation hearing. Id. at 942. We did so
recognizing the " 'changeable and explosive nature of contem-
porary international relations, and the fact that the executive
is immediately privy to information which cannot be swiftly
presented to, evaluated by, and acted upon by the legisla-
ture....' " Id. at 943 (quoting Zemel v. Rusk, 381 U.S. 1, 17
(1965)).
We remain committed to, and indeed bound by, that same
reasoning. It is simply not the case, however, that the
Secretary has shown how affording the organizations whatev-
er due process they are due before their designation as
foreign terrorist organizations and the resulting deprivation
of right would interfere with the Secretary's duty to carry out
foreign policy.
To oversimplify, assume the Secretary gives notice to one
of the entities that:
We are considering designating you as a foreign terrorist
organization, and in addition to classified information, we
will be using the following summarized administrative
record. You have the right to come forward with any
other evidence you may have that you are not a foreign
terrorist organization.
It is not immediately apparent how the foreign policy goals of
the government in general and the Secretary in particular
would be inherently impaired by that notice. It is particular-
ly difficult to discern how such a notice could interfere with
the Secretary's legitimate goals were it presented to an entity
such as the PMOI concerning its redesignation. We recog-
nize, as we have recognized before, that items of classified
information which do not appear dangerous or perhaps even
important to judges might "make all too much sense to a
foreign counterintelligence specialist who could learn much
about this nation's intelligence-gathering capabilities from
what these documents revealed about sources and methods."
Yunis, 867 F.2d at 623. We extend that recognition to the
possibility that alerting a previously undesignated organiza-
tion to the impending designation as a foreign terrorist
organization might work harm to this county's foreign policy
goals in ways that the court would not immediately perceive.
We therefore wish to make plain that we do not foreclose the
possibility of the Secretary, in an appropriate case, demon-
strating the necessity of withholding all notice and all oppor-
tunity to present evidence until the designation is already
made. The difficulty with that in the present case is that the
Secretary has made no attempt at such a showing.
We therefore hold that the Secretary must afford the
limited due process available to the putative foreign terrorist
organization prior to the deprivation worked by designating
that entity as such with its attendant consequences, unless he
can make a showing of particularized need.
c. What process is due
We have no doubt foreshadowed our conclusion as to what
process the Secretary must afford by our discussion of when
the Secretary must afford it. That is, consistent with the full
history of due process jurisprudence, as reflected in Mathews
v. Eldridge, "[t]he fundamental requirement of due process is
the opportunity to be heard 'at a meaningful time and in a
meaningful manner.' " 424 U.S. at 333 (quoting Armstrong v.
Manzo, 380 U.S. 545, 552 (1965)). To make plain what we
have assumed above, those procedures which have been held
to satisfy the Due Process Clause have "included notice of the
action sought," along with the opportunity to effectively be
heard. Id. at 334. This, we hold, is what the Constitution
requires of the Secretary in designating organizations as
foreign terrorist organizations under the statute. The Secre-
tary must afford to the entities under consideration notice
that the designation is impending. Upon an adequate show-
ing to the court, the Secretary may provide this notice after
the designation where earlier notification would impinge upon
the security and other foreign policy goals of the United
States.
The notice must include the action sought, but need not
disclose the classified information to be presented in camera
and ex parte to the court under the statute. This is within
the privilege and prerogative of the executive, and we do not
intend to compel a breach in the security which that branch is
charged to protect. However, the Secretary has shown no
reason not to offer the designated entities notice of the
administrative record which will in any event be filed publicly,
at the very latest at the time of the court's review. We
therefore require that as soon as the Secretary has reached a
tentative determination that the designation is impending, the
Secretary must provide notice of those unclassified items
upon which he proposes to rely to the entity to be designated.
There must then be some compliance with the hearing re-
quirement of due process jurisprudence--that is, the opportu-
nity to be heard at a meaningful time and in a meaningful
manner recognized in Mathews, Armstrong, and a plethora of
other cases. We do not suggest "that a hearing closely
approximating a judicial trial is necessary." Mathews, 424
U.S. at 333. We do, however, require that the Secretary
afford to entities considered for imminent designation the
opportunity to present, at least in written form, such evidence
as those entities may be able to produce to rebut the adminis-
trative record or otherwise negate the proposition that they
are foreign terrorist organizations.
It is for this reason that even in those instances when post-
deprivation due process is sufficient, our review under
s 1189(b) is not sufficient to supply the otherwise absent due
process protection. The statutory judicial review is limited to
the adequacy of the record before the court to support the
Secretary's executive decision. That record is currently com-
piled by the Secretary without notice or opportunity for any
meaningful hearing. 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. However, without the
due process protections which we have outlined, we cannot
presume the contrary either.
Remedy
We 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 designations before us.
However, we also recognize the realities of the foreign policy
and national security concerns asserted by the Secretary in
support of those designations. We further recognize the
timeline against which all are operating: the two-year desig-
nations before us expire in October of this year. We there-
fore do not order the vacation of the existing designations,
but rather remand the questions to the Secretary with in-
structions that the petitioners be afforded the opportunity to
file responses to the nonclassified evidence against them, to
file evidence in support of their allegations that they are not
terrorist organizations, and that they be afforded an opportu-
nity to be meaningfully heard by the Secretary upon the
relevant findings.
While not within our current order, we expect that the
Secretary will afford due process rights to these and other
similarly situated entities in the course of future designations.
Conclusion
For the reasons set forth above, we order that the Secre-
tary's designation of the National Council of Resistance of
Iran and the People's Mojahedin of Iran as being one foreign
terrorist organization be remanded to the Secretary for fur-
ther proceedings consistent with this opinion.