Title Council of Resistance of Iran v. State Department
Argued April 2, 2004 Decided July 9, 2004
Subject National Security
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 2, 2004 Decided July 9, 2004
No. 01-1480
NATIONAL COUNCIL OF RESISTANCE OF IRAN,
PETITIONER
v.
DEPARTMENT OF STATE AND
COLIN L. POWELL, SECRETARY OF STATE,
RESPONDENTS
On Petition for Review of Orders of the
Department of State
Paul F. Enzinna argued the cause and filed the briefs for
petitioner. Martin D. Minsker entered an appearance.
Douglas Letter, Litigation Counsel, U.S. Department of
Justice, argued the cause for respondents. With him on the
brief was Peter D. Keisler, Assistant Attorney General.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: HENDERSON, GARLAND, and ROBERTS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: This is the fourth in a series of
related cases concerning the biennial designations by the
Secretary of State of the Mojahedin-e Khalq Organization
(MEK)1 and its aliases as a foreign terrorist organization
(FTO). See People's Mojahedin Org. of Iran v. Dep't of
State, 182 F.3d 17 (D.C. Cir. 1999) (PMOI I); National
Council of Resistance of Iran v. Dep't of State, 251 F.3d 192
(D.C. Cir. 2001) (NCRI); People's Mojahedin Org. of Iran v.
Dep't of State, 327 F.3d 1238 (D.C. Cir. 2003) (PMOI II); see
generally 8 U.S.C. § 1189. In 1999, and again in 2001, the
National Council of Resistance of Iran (NCRI) was deter-
mined by the Secretary of State to be an alias of MEK and
was accordingly also designated an FTO. See 1999 Designa-
tion, 64 Fed. Reg. at 55,112; 2001 Redesignation, 66 Fed.
Reg. at 51,089. In May 2003, after a remand to cure certain
due process deficiencies, see NCRI, 251 F.3d at 20809, the
Secretary decided to leave in place the 1999 and 2001 desig-
1 The Mojahedin-e Khalq translates into English as People's
Mojahedin. AR268 The Mojahedin-e Khalq Organization (MEK)
is known in English as the People's Mojahedin Organization of Iran
(PMOI). Our prior decisions have variously referred to the Moja-
hedin-e Khalq as MEK, People's Mojahedin of Iran, and PMOI.
Compare PMOI I, 182 F.3d at 20 (``the People's Mojahedin Organi-
zation of Iran -- the MEK, for short''), with NCRI, 251 F.3d at 197
(``petitioner People's Mojahedin Organization of Iran (`PMOI')'').
To limit confusion, wherever possible we will use the terms Mojahe-
din-e Khalq and MEK, and, except in case names, not the terms
People's Mojahedin or PMOI. We adopt this convention because it
is the Mojahedin-e Khalq Organization that the Secretary has
designated as a foreign terrorist organization. See Designation of
Foreign Terrorist Organizations, 62 Fed. Reg. 52,650 (Oct. 8, 1997)
(1997 Designation); Designation of Foreign Terrorist Organiza-
tions, 64 Fed. Reg. 55,112 (Oct. 8, 1999) (1999 Designation); Redes-
ignation of Foreign Terrorist Organizations, 66 Fed. Reg. 51,088,
51,089 (Oct. 5, 2001) (2001 Redesignation); Redesignation of For-
eign Terrorist Organizations, 68 Fed. Reg. 56,860, 56,861 (Oct. 2,
2003) (2003 Redesignation).
3
nations of NCRI as an FTO. NCRI now again petitions for
review. After reviewing NCRI's arguments, the entirety of
the administrative record, and certain classified materials
appended to that record, we conclude that the Secretary's
latest designation complied with the governing statute and all
constitutional requirements. We therefore deny the petition
for review.
I.
The Anti-Terrorism and Effective Death Penalty Act of
1996 (AEDPA) empowers the Secretary of State to designate
an entity as an FTO whenever the Secretary determines that
(1) the entity is foreign; (2) it engages in terrorist activity;
and (3) the terrorist activity threatens the security of the
United States or its nationals. 8 U.S.C. § 1189(a)(1). A
designation as an FTO persists for two years, after which the
Secretary may redesignate the entity as an FTO for a suc-
ceeding two-year period upon finding that the statutory cir-
cumstances still exist. Id. § 1189(a)(4)(B).
An FTO designation visits serious consequences on the
affected organization: The Secretary of the Treasury may
require financial institutions to freeze any assets of the FTO,
id. § 1189(a)(2)(C); the members and representatives of the
FTO become ineligible to enter the United States, id.
§ 1182(a)(3)(B)(i)(IV), (V); and anyone who knowingly pro-
vides ``material support or resources'' to the FTO -- including
any donation of money -- may be prosecuted and imprisoned
for up to fifteen years, 18 U.S.C. § 2339B(a)(1). The mani-
fest purpose of these provisions is to deny terrorist organiza-
tions support -- financial or otherwise -- in and from the
United States. See H.R. REP. NO. 104-383, at 4345 (1995)
(House Report on AEDPA's primary predecessor bill).
Despite these serious consequences of designation, the
governing statute affords suspect entities only ``truncated''
participation in the administrative process leading to the
designation and ``quite limited'' judicial review after the fact.
NCRI, 251 F.3d at 196. As we noted in PMOI I, ``unlike the
run-of-the-mill administrative proceeding,'' ``there is under
4
AEDPA no adversary hearing, no presentation of what
courts and agencies think of as evidence, and no advance
notice to the entity affected by the Secretary's internal
deliberations.'' 182 F.3d at 19. Once the Secretary has
designated an entity an FTO, the statute directs us to ``hold
unlawful and set aside a designation'' only if we find it to be:
(A) arbitrary, capricious, an abuse of discretion, or oth-
erwise 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 ex parte and in camera , or
(E) not in accord with the procedures required by law.
8 U.S.C. § 1189(b)(3). Although the statute permits this
court to base its review either ``solely upon the administrative
record'' ``taken as a whole,'' or as supplemented by any
classified information submitted by the Secretary, the Act
makes no provision for the disclosure of that classified materi-
al to the designated entity. See id. § 1189(b)(2), (3)(D); see
generally 28 C.F.R. pt. 17 (governing access to classified
national security information).
In 1997, and every two years since, the Secretary has
designated MEK an FTO. See 1997 Designation, 62 Fed.
Reg. at 52,650; 1999 Designation, 64 Fed. Reg. at 55,112;
2001 Redesignation, 66 Fed. Reg. at 51,089; 2003 Redesig-
nation, 68 Fed. Reg. at 56,861. Starting in 1999, the Secre-
tary added NCRI to the list of designated FTOs, having
concluded that NCRI was an alias of MEK. See 1999 Desig-
nation, 64 Fed. Reg. at 55,112 (``I hereby designate TTT the
following organization as a foreign terrorist organization: TTT
Mujahedin-e Khalq Organization TTT also known as National
Council of Resistance, also known as NCR.''). NCRI now, for
the second time, seeks review of that designation. In NCRI's
previous challenge -- brought jointly with MEK -- we con-
5
cluded that both the 1999 designation of MEK as an FTO and
the designation of NCRI as an alias of MEK satisfied the
requirements of the statute. Specifically concerning NCRI,
we held -- based on the record then presented to us by the
Secretary -- that the Secretary's conclusion that NCRI was
an alias of MEK ``does not lack substantial support and TTT is
neither arbitrary, capricious, nor otherwise not in accordance
with law.'' NCRI, 251 F.3d at 199.
As a constitutional matter, however, we determined that
the procedures afforded by the statute and employed by the
Secretary in arriving at those designations violated both
organizations' due process rights. See id. at 20809. We did
not vacate the Secretary's designation as to either MEK or
NCRI, but remanded to the Secretary with instructions that
each entity be afforded the opportunity to: (1) respond to any
part of the Secretary's administrative record that is not
classified material; (2) file evidence on its own behalf; and (3)
be meaningfully heard by the Secretary. Id. at 210.
Both MEK and NCRI availed themselves of these opportu-
nities. NCRI submitted voluminous materials that purported
to demonstrate that it was sufficiently independent of MEK
that it could not be considered an alias of that organization.
On September 24, 2001, the State Department informed MEK
and NCRI that the Secretary had decided to leave the 1999
designation of MEK in place but that ``no such determination
regarding the NCRI as an alias of the MEK is possible at
this time.'' Letter of Ambassador Francis X. Taylor, Coordi-
nator for Counterterrorism, U.S. Dep't of State, at 2 (Sept.
24, 2001). This was shortly followed, on October 5, 2001, by
the Secretary's redesignation of both MEK as an FTO and
NCRI as an alias of MEK. See 2001 Redesignation, 66 Fed.
Reg. at 51,089. At that time, the State Department assured
NCRI that although ``the present situation TTT requires con-
tinued 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.''
6
Letter of Ambassador Francis X. Taylor, Coordinator for
Counterterrorism, U.S. Dep't of State, at 1 (Oct. 5, 2001).
Nearly a year later, the State Department provided for
NCRI's review additional materials obtained by the FBI in
the course of ``its long-running investigation of the MEK and
NCRI.'' Letter of Ambassador Francis X. Taylor, Coordina-
tor for Counterterrorism, U.S. Dep't of State, at 1 (Sept. 4,
2002). Within two months, NCRI submitted its response.
See Letter of Paul F. Enzinna, Esq. (Nov. 1, 2002). In May
2003, the State Department completed its review process and,
on May 24, the Secretary decided to leave in place the 1999
and 2001 ``designations of the National Council of Resistance
(NCR) and the National Council of Resistance of Iran
(NCRI) as foreign terrorist organization aliases of the Muja-
hedin-e Khalq (MEK).'' Action Mem. from William Pope &
William H. Taft, IV to the Secretary of State, at 3 (May 22,
2003) (Action Mem.). NCRI now petitions for review of this
latest decision.
II.
NCRI's primary argument is that the Secretary's conclu-
sion that NCRI is an alias of MEK lacks substantial support
in the administrative record. NCRI insists that it is an
umbrella organization of Iranian dissident persons and groups
of which MEK is only a single member, no more powerful
than any other. In addressing this contention, we begin with
our earlier holding in this action. In NCRI, we concluded --
based on the record then presented to us -- that the Secre-
tary's designation of NCRI as an alias of MEK ``does not lack
substantial support and TTT is neither arbitrary, capricious,
nor otherwise not in accordance with law.'' 251 F.3d at 199.
Although that decision is obviously not determinative of the
question before us today -- we are now reviewing a record
that has since been supplemented both by the Government
and NCRI -- its holding must nevertheless inform our deci-
sion here. Logically, NCRI's challenge can succeed only if
the new record materials establish its independence from
MEK so that we can no longer affirm that ``the Secretary, on
7
the face of things, had enough information before him to
come to the conclusion'' that NCRI is an alias of MEK. Id.
Having reviewed the supplemented administrative record as a
whole and the classified information appended to it, we con-
clude that NCRI has not met this burden.
To explain our decision, we must first review what it
means -- in the very particular context of AEDPA -- for one
organization to be an alias of another. On its previous
appeal, NCRI argued that the Secretary lacked authority
under AEDPA to designate an entity an FTO based on a
finding that it was an alias of another designated FTO. See
id. at 200. We rejected that contention, finding that the
grant of authority to designate FTOs ``implies the authority
to so designate an entity that commits the necessary terrorist
acts under some other name.'' Id. In so doing, we used a
mathematics metaphor -- specifically, the transitive proper-
ty -- to describe the alias concept: ``Logically, indeed mathe-
matically, if A equals B and B equals C, it follows that A
equals C. If the NCRI is the MEK , and if the MEK is a
foreign terrorist organization, then the NCRI is a foreign
terrorist organization also.'' Id.; see also id. (``If the Secre-
tary 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.' ''). Seizing upon our earlier
invocation of the transitive property, NCRI now argues that
the administrative record does not demonstrate that ``A
equals B'' -- that is, that NCRI equals MEK -- and there-
fore NCRI cannot be an alias of MEK. Indeed, NCRI
rightly points out that even the State Department acknowl-
edges that NCRI and MEK are not ``one and the same.'' See
Pet. Reply Br. 46.
Implicit in NCRI's argument, however, is a mistaken as-
sumption that the alias concept, under AEDPA, is bounded
by the transitive property. This reads too much into our
mathematical metaphor in NCRI. See Berkey v. Third Ave.
Ry. Co., 244 N.Y. 84, 94 (1926) (Cardozo, J.) (``Metaphors in
law are to be narrowly watched, for starting as devices to
liberate thought, they end often by enslaving it.''). While it is
8
certainly correct to use the term alias to describe scenarios
where a single entity is known by more than one name -- for
instance, Mojahedin-e Khalq is an alias for People's Mojahe-
din, two names for the same organization, one Farsi, the
other English -- nothing in AEDPA or any more general rule
of logic or language requires that the application of the alias
concept be strictly limited to such circumstances.
To the contrary, our citation in NCRI to First National
City Bank v. Banco Para El Comercio Exterior de Cuba, 462
U.S. 611 (1983), indicates that we intended the alias concept
to have a sweep beyond the transitive. In that case, which
concerned a suit brought by Banco Para El Comercio Exteri-
or (BPECE) against First National City Bank for perform-
ance under a letter of credit, the Supreme Court held that
First National could counterclaim for setoff of the value of its
assets that had been seized and nationalized by the Cuban
government, notwithstanding the fact that BPECE had been
established by the Cuban government as a juridical entity
separate from the government. See id. at 62334. Acknowl-
edging a presumption that ``government instrumentalities es-
tablished as juridical entities distinct and independent from
their sovereign should normally be treated as such,'' id. at
62627, the Court nevertheless concluded that the normally
separate juridical status had to be set aside where the Cuban
government was the real party in interest behind BPECE's
letter of credit claim, id. at 632. The Court, in reaching its
conclusion, looked to ordinary principles of agency law, noting
that ``where a corporate entity is so extensively controlled by
its owner that a relationship of principal and agent is created,
we have held that one may be held liable for the actions of the
other.'' Id. at 629 (citing NLRB v. Deena Artware, Inc., 361
U.S. 398, 40204 (1960)). We think those same ordinary
principles of agency law are fairly encompassed by the alias
concept under AEDPA. When one entity so dominates and
controls another that they must be considered principal and
agent, it is appropriate, under AEDPA, to look past their
separate juridical identities and to treat them as aliases.
The inclusion of these fundamental precepts of agency law
within AEDPA's alias concept is entirely consistent with --
9
indeed, necessary to -- the effective pursuit of the statute's
objective of denying support in and from the United States to
terrorist organizations. Just as it is silly to suppose ``that
Congress empowered the Secretary to designate a terrorist
organization TTT 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,'' NCRI, 251 F.3d at 200, so too it is implau-
sible to think that Congress permitted the Secretary to
designate an FTO to cut off its support in and from the
United States, but did not authorize the Secretary to prevent
that FTO from marshaling all the same support via juridically
separate agents subject to its control. For instance, under
NCRI's conception, the Government could designate XYZ
organization as an FTO in an effort to block United States
support to that organization, but could not, without a separate
FTO designation, ban the transfer of material support to
XYZ's fundraising affiliate, FTO Fundraiser, Inc. The
crabbed view of alias status advanced by NCRI is at war not
only with the antiterrorism objective of AEDPA, but common
sense as well.
We need not plumb all the complexities of agency law to
determine when an agent, under AEDPA, is the alias of its
principal. It is sufficient for our purposes to note that the
requisite relationship for alias status is established at least
when one organization so dominates and controls another that
the latter can no longer be considered meaningfully indepen-
dent from the former. See, e.g., NLRB v. Deena Artware,
Inc., 361 U.S. 398, 403 (1960) (`` `Dominion may be so com-
plete, interference so obtrusive, that by the general rules of
agency the parent will be a principal and the subsidiary an
agent.' '') (quoting Berkey, 244 N.Y. at 95); Casino Ready
Mix, Inc. v. NLRB, 321 F.3d 1190, 1196 (D.C. Cir. 2003)
(`` `agent' is one who agrees to act `subject to a principal's
control' '') (quoting RESTATEMENT (SECOND) OF AGENCY § 1, cmt.
a (1958)); cf. Transamerica Leasing, Inc. v. La Republica de
Venezuela, 200 F.3d 843, 848 (D.C. Cir. 2000) (``A sovereign is
amenable to suit based upon the actions of an instrumentality
it dominates because the sovereign and the instrumentality
10
are in those circumstances not meaningfully distinct entities;
they act as one.'').
We thus frame our inquiry here as whether ``the Secretary,
on the face of things, had enough information before him to
come to the conclusion'' that NCRI was dominated and
controlled by MEK. PMOI I, 182 F.3d at 25. 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. While our deter-
mination is buttressed by classified information provided to
us on an ex parte and in camera basis -- the contents of
which we cannot discuss -- the voluminous unclassified mate-
rials contained in the administrative record by themselves
and by a comfortable margin provide sufficient support for
the Secretary's conclusion, given the standard of review. It
would serve little purpose to catalogue all the material in the
administrative record supporting the conclusion that NCRI is
dominated and controlled by MEK, but we will set out below
a few of the pieces of information we found to be most
compelling. As we do so, it bears repeating that AEDPA
does not permit us, in exercising our limited judicial review,
to make any ``judgment whatsoever regarding whether the
material before the Secretary is or is not true,'' but allows us
to inquire only whether the Secretary ``had enough informa-
tion before him to come to the conclusion'' that NCRI is
dominated and controlled by MEK. Id.
After an extensive investigation of MEK and NCRI, the
FBI reported to the State Department that `` i t is the
unanimous view of the FBI personnel who are involved in and
familiar with the FBI's investigation of the MEK that the
NCRI is not a separate organization, but is instead, and has
been, an integral part of the MEK at all relevant times.''
Letter of Charles Frahm, Section Chief, International Terror-
ism Operations Section II, at 1 (Aug. 28, 2002). Contrary to
NCRI's portrayal of itself as an umbrella organization, of
which the MEK was just one member, the FBI concluded
that it is NCRI that is ``the political branch'' of the MEK. Id.
Attach. at 1.
11
This conclusion was based in large part on evidence gath-
ered from the search -- executed in December 2001 pursuant
to a valid warrant -- of a house in Falls Church, Virginia
apparently used as office space by both NCRI and MEK.
There, the FBI discovered NCRI and MEK materials ``com-
mingled together, and not separated,'' including bank records,
signed blank checks, MEK propaganda, NCRI publications,
travel documents, and letterhead which listed the same
French address for each organization. Id. Attach. at 24.
Crucially, among the recovered documents was a schematic
breakdown of the ``Iranian Resistance,'' which described
NCRI as ``The Political Branch'' of the movement. Id. at Tab
6.
Additionally, earlier investigations of MEK and NCRI had
revealed that the two organizations shared an essentially
unitary leadership structure. The overall head of MEK,
Massoud Rajavi, also leads NCRI. And Rajavi's wife, Mar-
yam Rajavi, was selected by NCRI to be Iran's President-in-
Exile. Id. Attach. at 2; see also id. Attach. at 4 (``The
leadership of MEK and NCRI is intermixed, and the enti-
ties operate in a day-to-day way as a single unit.''). These
facts corroborated the FBI's earlier conclusion prior to the
2001 designation of NCRI as an FTO that ``the NCR/NCRI is
in fact controlled by and inseparable from the MEK.'' Decl.
of Agent Michael Rolince (quoted in Action Mem., Tab 2 at
11).
The State Department acknowledged that ``NCRI has sub-
mitted numerous affidavits purporting to show that it is not
controlled by the MEK and is not an MEK front,'' and even
credited some of NCRI's ``subsidiary points.'' Action Mem.,
Tab 2 at 12, 9. The agency, however, concluded that ``the
evidence developed by the FBI is convincingly to the con-
trary.'' Id. Tab 2 at 12. It may be true that the State
Department relied very heavily on the conclusions of the
counterterrorism experts of the FBI. As noted above,
though, under the narrow powers of judicial review Congress
has accorded to us under AEDPA, 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.
12
We are to judge only whether the ``support'' marshaled for
the Secretary's designation was ``substantial.'' 8 U.S.C.
§ 1189(b)(3)(D). We conclude that the support for the Secre-
tary's conclusion that NCRI was dominated and controlled
by, and thus was an alias of, MEK was indeed substantial,
and we therefore reject NCRI's statutory challenge to its
designation as an FTO.
III.
This leaves only NCRI's constitutional challenges to certain
procedures employed in making that designation. Specifical-
ly, NCRI argues that due process requires that (1) it be
provided access to any classified materials that the Secretary
relied upon in making the designation, and (2) it have an
adversary hearing before the agency at which it could con-
front witnesses against it. Both these arguments are fore-
closed by our earlier decisions in NCRI and PMOI II. See
251 F.3d at 20809; 327 F.3d at 124243. Concerning
NCRI's claim that it is entitled to review classified materials,
in NCRI we wrote that the government ``need not disclose the
classified information to be presented in camera and ex parte
to the court under the statute.'' 251 F.3d at 208. In PMOI
II, addressing the same claim, this time brought by MEK, we
were even more emphatic: ``We reject this contentionTTTT
We already decided in NCRI that due process required the
disclosure of only the unclassified portions of the administra-
tive record.'' 327 F.3d at 1242. PMOI II also disposes of
NCRI's claim for an adversary hearing. There, we held that
NCRI established the constitutional baseline for fair process
and, the Government having complied with those commands
on remand, that ``nothing further is due.'' Id. at 1243. We
reach the same conclusion with regard to NCRI.
The petition for review is denied.
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