UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


PEOPLE'S MOJAHEDIN

v.

DOS


97-1648a

D.C. Cir. 1999


*	*	*


Randolph, Circuit Judge: The Antiterrorism and Effective  Death Penalty
Act conferred upon the Secretary of State the  power to designate
"foreign terrorist organizations." 8  U.S.C. s 1189. By order
effective October 8, 1997, Secretary  of State Madeline K. Albright so
designated the People's  Mojahedin Organization of Iran and the
Liberation Tigers of  Tamil Eelam. See Designation of Foreign
Terrorist Organi- zations, 62 Fed. Reg. 52,650 (1997). Both groups
have  brought petitions for judicial review of their designations 
pursuant to 8 U.S.C. s 1189(b)(1).1




__________

n 1 Because these separate petitions involve the same statute and 
similar claims, we decide both in a single opinion.


I


The statute before us is unique, procedurally and substan- tively. On
the basis of an "administrative record," the Secre- tary of State is
to make "findings" that an entity is a foreign  organization engaging
in terrorist activities that threaten the  national security of the
United States. See 8 U.S.C.  s 1189(a)(2)(A)(i), (3)(A). This
language--"findings" on an  "administrative record"--is commonplace.
We encounter it  day in and day out in cases coming from federal
agencies.  But unlike the run-of-the-mill administrative proceeding,
here  there is no adversary hearing, no presentation of what courts 
and agencies think of as evidence, no advance notice to the  entity
affected by the Secretary's internal deliberations.  When the
Secretary announces the designation, through pub- lication in the
Federal Register, the organization's bank  accounts in the United
States become subject to seizure and  anyone who knowingly contributes
financial support to the  named entity becomes subject to criminal
prosecution. See 8  U.S.C. ss 1189(a)(2)(C), 2339B(a)(1). Any
classified informa- tion on which the Secretary relied in bringing
about these  consequences may continue to remain secret, except from 
certain members of Congress and this court. See 8 U.S.C.  s
1189(a)(2)(A)(i), (b)(2). There is a provision for "judicial  review"
confined to the material the Secretary assembled  before publishing
the designation. See 8 U.S.C. s 1189(b)(2).  Because nothing in the
legislation restricts the Secretary  from acting on the basis of third
hand accounts, press stories,  material on the Internet or other
hearsay regarding the  organization's activities, the "administrative


We will give the details of the governing provisions in a  moment. At
this point in a judicial opinion, appellate courts  often lay out the
"facts." We will not, cannot, do so in these  cases. What follows in
the next two subsections may or may  not be facts. The information
recited is certainly not evi- dence of the sort that would normally be
received in court. It  is instead material the Secretary of State
compiled as a  record, from sources named and unnamed, the accuracy of
 which we have no way of evaluating.


A


"The Liberation Tigers of Tamil Eelam was founded in  1976 for the
purpose of creating a separate Tamil state in Sri  Lanka. The group
began its war against the Government of  Sri Lanka in 1983 and has
employed violent means, including  bombings and political
assassination, to achieve the goal of a  separate entity in the North
and East of the country. Some  50,000 people are estimated to have
died in fourteen years of  fighting."2 "Sri Lankan military and
intelligence sources that  have reported reliably in the past have
identified the Ellalan  Force as another alias for the Liberation
Tigers of Tamil  Eelam," which "will hereafter be referred to as the
'LTTE'."  "Headquartered in the Jaffna Peninsula [of Sri Lanka], ... 
Velupillai Prabhakaran," "the founder and leader of Sri Lan- ka's LTTE
... organized the insurgency group to pursue an  independent homeland
for Tamils in Sri Lanka's northern and  eastern regions out of
frustration over the ethnic discrimina- tion of the Sri Lankan
government, according to press re- ports." "Tamils ... are the
mainstay of his organization,  according to US military officials."


A February 1995 news story from Hong Kong stated: "Sri  Lanka's Tamil
Tiger rebels denied plans to assassinate Presi- dent Chandrika
Kumaratunga but tacitly admitted having  killed former Indian Premier
Rajiv Gandhi, press reports  here said Tuesday.... Tigers have also
been accused of  killing Sri Lankan President Ranasinghe Premadasa in
May  1993 and opposition leader Gamini Dissanayake in October  last
year. However, Tigers have denied all these killings."  "[T]he LTTE
tried to assassinate leaders of the Tamil Eelam  Liberation
Organization (TELO)--a Tamil political party--on  August 26 [1996].
The President of the party escaped, but a  district leader was
killed." A report dated July 1996 stated:  "A suicide bomb attack by
the Liberation Tigers of Tamil  Eelam ... narrowly missed killing a
key [cabinet minister]  and left 25 dead...." A State Department
report on terror- ist activity in 1996 reported that: "The LTTE has




__________

n 2 All quotations in this part A are from the public version of the 
administrative record.


from targeting Western tourists, but a front group--the  Ellalan
Force--continued to send threatening letters to West- ern missions and
the press."


"The LTTE ... uses its international contacts to procure  weapons,
communications, and bomb-making equipment.  The LTTE exploits large
Tamil communities in North Amer- ica, Europe, and Asia to obtain funds
and supplies for its  fighters in Sri Lanka."


B


A CIA Intelligence Research Paper, dated July 1993, re- ports that the
People's Mojahedin Organization of Iran--the  MEK, for short--"is the
largest and most active Iranian  dissident group. Its primary goal is
the overthrow of the  Iranian Government, after which it would seek to
establish a  nontheocratic republic.... The MEK's history, marked by 
violence and terrorism, belies its claim to uphold democratic  ideals.
Formed in the early 1960s, its origins reflect both  Marxist and
Islamic influences, and its history is studded with  anti-Western
activity." 3


The MEK "collaborated with Ayatollah Khomeini to over- throw the former
Shah of Iran. As part of that struggle,  they assassinated at least
six American citizens, supported  the takeover of the U.S. embassy,
and opposed the release of  American hostages." "[In 1972] the MEK
exploded time  bombs at more than a dozen sites throughout Tehran,
includ- ing the Iran-American Society, ... and the offices of Pepsi 
Cola and General Motors. From 1972-75 ... the Mojahedin  continued
their campaign of bombings, damaging such targets  as the offices of
Pan-American Airlines, Shell Oil Company,  and British organizations."
"The MEK has been unable since  the mid-1980s to mount terrorist
operations inside Iran on  the same scale as its earlier activities
because of government  repression and the group's lack of popular




__________

n 3 According to 62 Fed. Reg. at 52,650, the People's Mojahedin 
Organization of Iran is also known as the Mujahedin-e Khalq, the  MEK,
the MKO, the PMOI, the Organization of the People's Holy  Warriors of
Iran and the Sazeman-e Mujahedin-e Khalq-e Iran.


June 1987 the MEK formed a military wing, the National  Liberation Army
of Iran (NLA), which is located in eastern  Iraq along the central
Iran-Iraq border area." "In April  1992, the MEK used its sympathizers
in the United States,  Canada, Germany, France, the United Kingdom,
Switzerland,  the Netherlands, Sweden, Norway, Denmark and Australia
to  launch virtually simultaneous attacks on Iranian embassies  and
installations." In March 1994 Reuters and the BBC  reported that the
MEK "said its fighters attacked and dis- abled 14 oil pipelines in the
north of Khuzistan province  during military operations" and took
credit for "25 other ...  attacks it said took place in Iran between
March 8 and March  18."


"The MEK looks to expatriate Iranians who are not mem- bers of the
organization for financial support and manpower."  "Baghdad is the
MEK's primary supporter and closest ally."  "The MEK has offices and
members throughout Europe,  North America, the Middle East and in
Australia. These  offices are responsible for collecting donations
from private  citizens--especially Iranian expatriates--for the MEK
and  for organizing activities such as demonstrations to show  support


C


Section 1189(a)(1), as added by the Antiterrorism and  Effective Death
Penalty Act of 1996, Pub L. No. 104-132,  s 302, 110 Stat. 1214, 1248,
as amended by the Illegal Immi- gration Reform and Immigrant
Responsibility Act of 1996,  Pub. L. No. 104-208, s 356, 110 Stat.
3009, 3009-644, empow- ers the Secretary of State to designate a
"foreign terrorist  organization" if the Secretary finds three things:
"(A) the  organization is a foreign organization"; "(B) the
organization  engages in terrorist activity" as defined in the
provisions set  forth in the margin;4 and "(C) the terrorist activity




__________

n 4 Terrorist activity is defined as any activity which is:


unlawful ... where it is committed (or which, if committed in  the
United States, would be unlawful under [state or federal  law]), and
which involves any of the following:


organization threatens the security of United States nationals  or the
national security of the United States." Such activities  threaten the
"national security" when they threaten the "na- tional defense,
foreign relations, or economic interests of the  United States." See 8
U.S.C. s 1189(c)(2).5 Upon notifica- tion that the Secretary plans to
designate an organization, the  Secretary of the Treasury may require
U.S. financial institu- tions that possess or control assets of that
organization to  block all financial transactions involving those
assets until  further directive from him, by Act of Congress or order
of a  court. See 8 U.S.C. s 1189(a)(2)(C).


The knowing provision of material support or resources to  a designated
organization is a crime punishable by a fine or  up to ten years
imprisonment, or both. See 18 U.S.C.  


__________

n (I) The hijacking or sabotage of any conveyance (including  an
aircraft, vessel, or vehicle). (II) The seizing or detaining, and
threatening to kill,  injure, or continue to detain, another
individual in order to  compel a third person (including a
governmental organiza- tion) to do or abstain from doing any act as an
explicit or  implicit condition for the release of the individual
seized or  detained. (III) A violent attack upon an internationally
protected  person ... or upon the liberty of such a person. (IV) An
assassination. (V) The use of any-- (a) biological agent, chemical
agent, or nuclear weapon  or device, or (b) explosive or firearm
(other than for mere personal  monetary gain),


with intent to endanger, directly or indirectly, the safety of one  or
more individuals or to cause substantial damage to property.


(VI) A threat, attempt, or conspiracy to do any of the  foregoing. 8
U.S.C. s 1182(a)(3)(B)(ii).


5 The statute requires the Secretary to notify certain members of  the
House and Senate before making a designation, but she need  not notify
the organizations being considered for designation, nor  give them an
opportunity to be heard. See 8 U.S.C.  s 1189(a)(2)(A).


s 2339B(a)(1). Alien members or representatives of desig- nated
organizations may not be admitted to the United  States. See 8 U.S.C.
s 1182(a)(3)(B)(i)(IV), (V).


Also, 8 U.S.C. s 1189(a)(8) states that "[i]f a designation  under this
subsection has become effective under paragraph  (1)(B), a defendant
in a criminal action shall not be permitted  to raise any question
concerning the validity of the issuance  of such designation as a
defense or an objection at any trial or  hearing." (This last
provision seems to contain a miscitation.  Paragraph (1)(B) does not
deal with a designation's becoming  effective; (1)(B) is the paragraph
requiring a finding of  terrorist activity. It appears that s
1189(a)(8) meant to refer  to paragraph (2)(B).)


The judicial review provision states that a designated orga- nization
may, within 30 days of publication in the Federal  Register, file a
petition for judicial review in the United  States Court of Appeals
for the District of Columbia Circuit.  8 U.S.C. s 1189(b)(1). The
court is to look only at the  "administrative record" the Secretary
has assembled, al- though "the Government may submit, for ex parte and
in  camera review, classified information used in making the 
designation." See 8 U.S.C. s 1189(b)(2).


In APA-like language, s 1189(b)(3) provides that the court  shall "hold
unlawful and set aside a designation the court  finds to be"
"arbitrary, capricious, an abuse of discretion,"  "contrary to
constitutional right, power, privilege or immuni- ty," "in excess of
statutory jurisdiction, authority or limita- tion," "lacking
substantial support in the administrative rec- ord taken as a whole or
in classified information submitted to  the court" or a designation
that was not made "in ac- cord[ance] with the procedures required by
law." 8 U.S.C.  s 1189(b)(3).


II


These cases bear some resemblance to Joint Anti-Fascist  Refugee
Committee v. McGrath, 341 U.S. 123 (1951), in which  the Attorney
General, purportedly acting pursuant to an  Executive Order,
designated certain organizations as Commu-


nist on a list furnished to the Civil Service Commission. No  majority
opinion emerged, but in separate opinions Justices  Black (id. at
143), Frankfurter (id. at 173), Douglas (id. at  176) and Jackson (id.
at 186-87) stated that the Fifth Amend- ment's due process clause
barred the government from so  condemning organizations without giving
them notice and  opportunity to be heard. In view of Joint
Anti-Fascist Refu- gee Committee, and other authorities, the LTTE and
the  MEK suppose that s 1189 deprived them of due process of  law,
particularly since the Secretary's designations had the  effect of
making it a crime to donate money to them. Com- pare Paul v. Davis,
424 U.S. 693, 704-05 (1976).


We put to one side situations in which an organization's  bank deposits
were seized as a result of the Secretary's  designation. Neither the
LTTE or the MEK suffered that  fate, presumably because no United
States financial institu- tions held any of their property. From all
that appears, the  LTTE and the MEK have no presence in the United
States.  Their status as foreign is uncontested. This serves to
distin- guish them from the organizations named as Communist in  the
Joint Anti-Fascist Refugee case. Those were domestic  entities. A
foreign entity without property or presence in  this country has no
constitutional rights, under the due  process clause or otherwise.
"[A]liens receive constitutional  protections [only] when they have
come within the territory of  the United States and developed
substantial connections with  this country." United States v.
Verdugo-Urquidez, 494 U.S.  259, 271 (1990).6 No one would suppose
that a foreign nation  had a due process right to notice and a hearing
before the  Executive imposed an embargo on it for the purpose of 
coercing a change in policy. See Regan v. Wald, 468 U.S. 222 


Whatever rights the LTTE and the MEK enjoy in regard  to these cases
are therefore statutory rights only. Because 




__________

n 6 Because the issue is not before us, we do not decide whether  s
1189 deprives those in the United States of some constitutional  right
if they are members of, or wish to donate money to, an  organization
designated by the Secretary.


Congress so allowed, the LTTE and the MEK are entitled to  contest
their designations on the grounds set forth in  s 1189(b)(3). Under
the statute, they may for instance seek  our judgment about whether
the Secretary followed statutory  procedures, or whether she made the
requisite findings, or  whether the record she assembled substantially
supports her  findings.


But even this puts the matter too broadly, the government  tells us. Of
the three findings mandated by s 1189(a)(1), the  third--"(C) the
terrorist activity of the organization threatens  the security of
United States nationals or the national securi- ty of the United
States"--is nonjusticiable. Chicago &  Southern Air Lines, Inc. v.
Waterman Steamship Corp., 333  U.S. 103 (1948), holds that it is
beyond the judicial function  for a court to review foreign policy
decisions of the Executive  Branch. These are political judgments,
"decisions of a kind  for which the Judiciary has neither aptitude,
facilities nor  responsibilities and have long been held to belong in
the  domain of political power not subject to judicial intrusion or 
inquiry." 333 U.S. at 111. See, e.g., Haig v. Agee, 453 U.S.  280, 292


May we nevertheless conduct judicial review limited to  determining
whether the Secretary complied with the remain- ing portions of s
1189(a)? The question arises because it is  the Secretary's
designation that we are supposed to review  according to 8 U.S.C. s
1189(b)(1): "Not later than 30 days  after publication of the
designation in the Federal Register,  an organization designated as a
foreign terrorist organization  may seek judicial review of the
designation in the United  States Court of Appeals for the District of
Columbia Circuit."  If we are not competent to pass upon the
Secretary's national  security finding under s 1189(a)(1)(C), and we
interpret  Waterman to hold that we are not, how can we perform the 
function Congress assigned to us, which is to pass upon the  validity
of the designation?7 For all we know, the designa-




__________

n 7 In cases on appeal from the district court, we are to review 
"judgments, not opinions." Chevron U.S.A. v. Natural Resources 
Defense Council, 467 U.S. 837, 842 (1984). Orders issued by 


tion may be improper because the Secretary's judgment that  the
organization threatens our national security is completely 
irrational, and devoid of any support. Or her finding about  national
security may be exactly correct. We are forbidden  from saying. That
we cannot pronounce on the question does  not mean that we must assume
the Secretary was right. It  means we cannot make any assumption, one
way or the other.


So the question remains: may we perform the checking  function of
judicial review by ignoring (C) and just pronounc- ing on (A) and (B)?
Waterman has some bearing on the  issue. There the Civil Aeronautics
Board issued a proposed  order disposing of 29 applications from 15
United States  carriers to engage in overseas operations. See
Waterman,  333 U.S. at 116 n.5. Pursuant to statute, such CAB orders 
(regardless whether the order granted or denied the applica- tion) had
to be approved by the President before becoming  final. In Waterman
the President approved the CAB's con- solidated order. This had the
effect of granting Chicago &  Southern's application and denying
Waterman's. See id. at  104-05. The statute contained a provision
allowing for judi- cial review of such CAB orders (although not orders
granting  or denying routes to foreign carriers). The court of appeals
 believed that it "could not review such provisions of the order  as
resulted from Presidential direction," see id. at 111, and as  we have
said, the Supreme Court majority (and the dissenters  too) agreed. But
the Court disagreed with the court of  appeals that it could
nevertheless review whatever portion of  the CAB's order had not
resulted from the President's for- eign policy judgment. (On this
point the Court divided 5-4.)  The Court viewed the CAB orders as
merely advisory until  the President acted. After the President acted,
even if he  changed nothing the CAB had decided, "the final orders 
embody Presidential discretion as to political matters beyond  the
competence of the courts to adjudicate." See id. at 114.




__________

n agencies are treated differently. In administrative law, we do not 
sustain a "right-result, wrong-reason" decision of an agency. We  send
the case back to the agency so that it may fix its reasoning or 
change its result. SEC v. Chenery Corp., 318 U.S. 80, 88 (1942), 
explains the difference.


One might suppose that, by analogy, the Secretary's desig- nations also
"embody ... discretion as to political matters  beyond the competence
of the courts to adjudicate." See id.  But there is a difference
between the statutory system in  Waterman and the statutory system we
have before us.  Apart from the fact that the President did not need
to make  any particular findings to approve, modify or reject a pro-
posed CAB order, the order could not be effective without 
Presidential action. The President's action was not limited to  a
"mere right of veto." See id. at 109. The President could,  for
instance, set aside CAB orders refusing to authorize air 
transportation. See id. Judicial review of the CAB's action,  then,
would have amounted to rendering an advisory opinion.  333 U.S. at
113-14. Not so here. If we were to determine  that the Secretary
failed to comply, or did comply, with  s 1189(a)(1)(A) and (B), there
would be nothing advisory  about our opinion. We would uphold, or set
aside, the  Secretary's determination on that ground. Judicial review,
as  thus limited, performs the role Congress intended without 


With subsection (C) out of the picture, all that remains to  be
examined--in view of the arguments the LTTE and the  MEK present--is
the Secretary's findings that these organi- zations are "foreign" and
that they "engage[ ] in terrorist  activity" (8 U.S.C. s 1189(a)(1)(A)
& (B)). The LTTE, but  not the MEK, contests whether it is a "foreign
organization"  within the meaning of the statute. According to the
LTTE, it  is instead a government. The LTTE assumes a difference 
between a foreign organization and a foreign government.  Only in the
definition of terrorist activities is there a hint that  Congress
meant to draw such a distinction. See 8 U.S.C.  s
1182(a)(3)(B)(ii)(II). In any event, the United States re- plies that
a court cannot make the determination the LTTE  wants because
recognizing foreign states is solely entrusted  to the political
branches, and the United States has not  recognized the LTTE. "Who is
the sovereign, de jure or de  facto, of a territory, is not a
judicial, but a political question,  the determination of which by the
legislative and executive  departments of any government conclusively


judges, as well as all other officers, citizens, and subjects of  that
government." Jones v. United States, 137 U.S. 202, 212- 13 (1890).
Here, the Secretary determined that the LTTE  was a foreign
organization and, in the words of the statute,  there is "substantial
support" for her finding in the materials  she has furnished us as an
"administrative record." 8 U.S.C.  s 1189(b)(3)(D).8


We also believe that the record, as the Secretary has  compiled it, not
surprisingly contains "substantial support"  for her findings that the
LTTE and the MEK engage in  "terrorist activities" within the meaning
of 8 U.S.C.  s 1182(a)(3)(B). We have already recounted, above, enough
 of the record to show that the Secretary had before her  information
that each of the organizations engaged in bomb- ing and killing in
order to further their political agendas.  Any one of the incidents
attributed to the LTTE and to the  MEK would have sufficed under the
statute.


We therefore refuse to set aside either designation. In so  deciding we
are not--in the words of Mistretta v. United  States, 488 U.S. 361,
407 (1989)--allowing the reputation of  the Judicial Branch to be
"borrowed by the political Branches  to cloak their work in the
neutral colors of judicial action."  We reach no judgment whatsoever
regarding whether the  material before the Secretary is or is not
true. As we wrote  earlier, the record consists entirely of hearsay,
none of it was  ever subjected to adversary testing, and there was no
oppor- tunity for counter-evidence by the organizations affected. As 
we see it, our only function is to decide if the Secretary, on  the
face of things, had enough information before her to come 




__________

n 8 Section 1189(b)(3), although generally parroting the language of 
the Administrative Procedure Act, modified the "substantial evi-
dence" standard of 5 U.S.C. s 706(2)(E) to say instead "substantial 
support." Perhaps this was in recognition of the decision of this 
court that whenever a statute requires the agency action to be 
supported by "substantial evidence"--a term of art in administra- tive
law--there must be "some sort of adversary, adjudicative-type 
procedures" before the agency. Mobil Oil Corp. v. FPC, 483 F.2d  1238,
1259 (D.C. Cir. 1973).


to the conclusion that the organizations were foreign and  engaged in
terrorism. Her conclusion might be mistaken, but  that depends on the
quality of the information in the reports  she received--something we
have no way of judging.


We have considered and rejected the other arguments  petitioners have
raised and see no need to burden this opinion  with a discussion of
them.


The petitions for review are denied.