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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), 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 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.
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 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:
(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.
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 ...
Proceedings, Issues presented, arguments by both parties and judge's resolution.