On July 15, 2010 a long running battle by an Iranian group to get off the State Department’s (State) list of Foreign Terrorist Organizations (FTO) reached a new stage when the Court of Appeals for the District of Columbia Circuit ordered State to reconsider listing of the People’s Mujaheddin Organization of Iran (PMOI). The court said State must provide PMOI an opportunity to rebut the unclassified information State had relied on. The ruling reflects the same due process problems recognized by federal courts found in Department of Treasury (Treasury) designations of two U.S. charities, KindHearts for Charitable and Humanitarian Development and Al-Haramain Oregon.

The PMOI challenge differs from challenges to Treasury designations because PMOI is on State’s FTO list, authorized by the Antiterrorism and Effective Death Penalty Act (AEDPA). Due process rulings against Treasury grew out of listing groups as supporters of FTOs and imposing sanctions under the International Emergency Economic Powers Act (IEEPA).  However, the fundamental due process problems of lack of notice and opportunity to defend have been found in both listing processes.

In the PMOI case, which has a long history of litigation and reconsiderations, the court said where State relies on unclassified information that is sufficient to designate a group as a FTO, it must provide it in advance of the proposed action and give the group an opportunity to rebut the proposed FTO listing.   In the PMOI case, that did not happen. Instead, State used a process similar to Treasury’s by designating first and then offering to consider material PMOI offered in its defense after the fact.

AEDPA requires courts to set aside FTO designations that are arbitrary and capricious, deny constitutional rights, exceed statutory authority or lack substantial support in the administrative record. Under AEDPA the organization can seek revocation two years after designation by providing evidence that its circumstances have changed and the designation is no longer warranted. PMOI was first designated in 1997. In its latest challenge it cited numerous changes in circumstances, including evidence that it:

  • Ceased military operations and renounced violence

  • Shared information with U.S. intelligence agencies regarding Iran’s nuclear program and

  • Was removed from lists in the United Kingdom and European Union.

Referring to previous stages of this litigation, the court said that “our cases require the Secretary to notify PMOI of the unclassified material ‘upon which she proposed to rely’ and to allow the PMOI ‘the opportunity to present, at least in written form, such evidence as it may be able to produce to rebut the administrative record or otherwise negate the proposition that’ it is an FTO.” The court said the extent of its deference to State’s findings of fact depend on it having “afforded the designated organization a fair opportunity to respond to the unclassified record.”

Instead of complying with this process, State only permitted access to the unclassified material after its decision to list PMOI was final. The court did not rule on what process should be used where classified evidence is relied on, since the facts of this case did not involve classified information. AEDPA allows State to rely on classified information that is not subject to disclosure to the organization, but is provided to the court ex parte and in camera in the case of appeal.