July 22, 2010
U.S. Appeals Court Tells State Department to Provide More Due Process to Alleged Foreign Terrorist Organizations
Professor Cindy Galway Buys (Southern Illinois University School of Law) posted this on the International Law Prof Blog:
On Friday, the U.S. Court of Appeals for the District of Columbia Circuit issued a ruling in which it ordered the U.S. State Department to provide more process to an organization, the Mojahedin-e Khalq Organization (MEK) (also called the People’s Mojahedin Organization of Iran (PMOI)), which is designated as a foreign terrorist organization (FTO) with the meaning of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), as amended. Under AEDPA, the Secretary of State may designate an entity as an FTO if she determines that (A) the entity is foreign, (B) it engages in “terrorist activity” or “terrorism” and (C) the terrorist activity threatens the security of the United States or its nationals. 8 U.S.C. § 1189(a)(1). “Terrorist activity” is defined in section 1182(a)(3)(B)(iii) of the Act 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). Being designated an FTO means that the assets of the organization may be frozen, its members barred from entering the U.S., and its supporters criminally prosecuted.
PMOI challenged its designation as an FTO claiming that it had renounced violence, had handed over its weapons to U.S. authorities in Iran, and had provided extensive information and other cooperation to the U.S. authorities there. The Secretary of State rejected PMOI's request to be removed from the FTO list on the basis of both classified and unclassified information, but did not provide PMOI with access to any of the information or an opportunity to rebut the allegations prior to making the determination. PMOI claimed that the Secretary violated due process for failure to provide it with copies of at least the unclassified information upon which the decision was based and an opportunity to rebut that information. PMOI also challenged the Secretary of State's determination on the basis that it lacked substantial support in the record, but the Court did not reach that issue, deciding instead to remand the case to the lower court on the due process issue. The Court held that PMOI was entitled to access to the unclassfied documents and an opportunity to rebut the information before the Secretary's decision was finalized and made public.
While this decision is a victory for an organization seeking to revoke its designation as an FTO and for the rule of law generally, the Court was careful to emphasize its deference to the Executive Branch in many respects. It reiterated that the determination of what activities constitute a threat to the United States is a political question that is not judicially reviewable. The Court also stated that it would not second guess the Secretary's determinations with respect to the credibility of particular sources.
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