BLACKLISTING FOREIGN TERRORIST ORGANIZATIONS: CLASSIFIED INFORMATION, NATIONAL SECURITY, AND DUE PROCESS.

• Author: Daniei, Justin S.
• Position: COMMENT

Designations of Foreign Terrorist Organizations (FTO) by the Secretary of State under [section] 1189 of the Antiterrorism and Effective Death Penalty Act of 1996 provide a key means of thwarting global terror networks by isolating and stigmatizing such groups, and by depriving them of financial and human support. This Comment examines the role of classified information in the FTO designation process and analyzes whether the Secretary's reliance on classified information--to which designated FTOs do not have access--comports with the Due Process Clause of the Fifth Amendment, particularly when the classified record is essential to the Secretary's determination.

To answer that question, this Comment first traces a series of cases in the U.S. Court of Appeals for the District of Columbia Circuit, the tribunal charged with hearing challenges to FTO designations, and argues that--notwithstanding statements by the court evincing a reluctance to resolve the issue--D.C. Circuit precedent has likely foreclosed access to the classified record by designated groups, even when the information withheld is essential to the Secretary's designation decision.

This Comment then presents a constitutional due process analysis and argues that--because [section]1189 targets foreign (as opposed to domestic) organizations, which must establish substantial connections with the U.S. to receive due process protection--courts should be reluctant to grant FTOs constitutional protection for interests divorced from the contacts used to establish U.S. presence. Finally, this Comment ventures a comparative analysis by looking to a Cold War-era scheme similar to [section] 1189 and to the contemporary cases dealing with habeas corpus in the terrorist detainment context.

INTRODUCTION 214 I. SECTION 1189 DESIGNATION SCHEME 215 A. Generally 216 B. Criticism of [section] 1189 219 C. Role of Classified Information in [section] 1189 221 II. A RECURRING ISSUE: RELIANCE ON CLASSIFIED INFORMATION IN FTO DESIGNATIONS 221 A. People's Mojahedin I 222 B. National Council I 223 C. People's Mojahedin II 225 D. Holy Land Foundation v. Ashcroft 226 E. National Council II 227 F. People's Mojahedin III 229 III. CLOSING THE FILE: WHY EX PARTE, IN CAMERA SUBMISSIONS SATISFY DUE PROCESS 231 A. As-Applied Challenges Have Been Foreclosed by Circuit Precedent 232 B. Due Process Analysis 235 1. Step Zero: Constitutional Presence 236 2. Step One: Interests Implicated by FTO Designations 238 3. Step Two: Tailoring the Process Due to the Interests Implicated 241 C. Comparative Analysis 250 1. The Attorney General's Designation of Subversive Organizations 251 2. Post-9/11 Habeas Cases 258 CONCLUSION 260 INTRODUCTION

Statutory schemes for designating groups as terrorist organizations can be as powerful as any weapon in America's fight against terrorism, because such designations can effectively cripple targeted organizations by severing sources of financial and human support. In addition to triggering a variety of legal penalties, terrorist designations--imposed by high-level officials in the Executive Branch--isolate and stigmatize terrorist groups, both from mainstream society and on the world stage. These statutory schemes are "at the interstices of administrative law, foreign relations, national security, and counterterrorist law," (1) and they pose interesting--and perhaps intractable--questions about due process, executive authority, and the role of the federal judiciary.

This Comment explores one of those questions: the reliance on classified information by the Secretary of State in designating Foreign Terrorist Organizations (FTO) under 8 U.S.C. [section] 1189, part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The Comment first examines the role of classified information in the FTO designation process, and then analyzes whether the Secretary's reliance on classified information--to which designated FTOs do not have access--comports with the Due Process Clause of the Fifth Amendment, especially when the Secretary's determination is based largely or entirely on the classified record. The United States Court of Appeals for the District of Columbia Circuit, which is responsible for hearing challenges brought by FTOs to their designations, has wrestled with the latter question in a series of cases--but never squarely resolved it.

Part I provides an overview of the process by which the Secretary of State designates FTOs, including the role of classified information and some of the criticisms leveled at the process. Part II surveys a series of cases in the D.C. Circuit grappling with the nuances of the FTO designation scheme and considering the implications of the Secretary's reliance on classified information in making designations. Part III analyzes the scenario in which an FTO designation relies upon support found only in classified material, such that the designation cannot stand without the classified information. As a first step, Section III.A closely scrutinizes the language of the D.C. Circuit's opinions addressing reliance on classified information. Against this backdrop, Section III.B performs a Fifth Amendment due process analysis of the scheme. Finally, Section III.C provides a comparative analysis by looking to a Cold War-era designation system similar to [section] 1189 and to the contemporary line of cases dealing with habeas corpus in the terrorist detainment context.

Employing these three lines of inquiry, this Comment argues that reliance on classified information by the Secretary of State in making FTO designations comports with the Fifth Amendment--even when the designation cannot be sustained without the classified information and the FTO has no access to that information.

1. SECTION 1189 DESIGNATION SCHEME

   Following the 1993 attack on the World Trade Center and the 1995 bombing of the Murrah Federal Building in Oklahoma City, AEDPA was passed by Congress and signed into law by President Clinton. The law reflected serious concern by Congress about the threat posed by international terrorism, (2) and took aim specifically at disrupting terrorism fundraising networks. (3)

   In what is now 8 U.S.C. [section] 1189, AEDPA provides that the Secretary of State may designate an organization as an FTO if she finds: (1) it is foreign; (2) it is engaged in "terrorist activity" (4) or "terrorism," (5) or has the "capability and intent" to do so; and (3) "the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States."

   1. Generally

      Designation as an FTO under [section] 1189 imposes a number of serious penalties on an organization. It is a federal crime to provide "material support" to an FTO. (6) Financial institutions that either possess or control any funds belonging to an FTO must retain control of those funds and report them to the Secretary of the Treasury. (7) Financial institutions that fail to comply with this requirement may be subject to a minimum $50,000 civil penalty. (8) Membership in an FTO, the solicitation of others for membership in an FTO, and the solicitation of contributions to an FTO all fall within the statutory definition of "[e]ngage[ment] in terrorist activity" and therefore constitute grounds for barring an alien from entry into the United States. (9) The propriety of these severe measures is premised on Congress's belief that "foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." (10)

      The express terms of [section] 1189 do not provide a designated organization with a hearing, either pre- or post-designation. They also do not require that the Secretary notify a designated organization prior to her publication of the FTO designation in the Federal Register, though she is required to notify congressional leaders in the House of Representatives and the Senate. (11)

      Once a group is designated as an FTO, there are three ways that the designation can be revoked: Congress may expressly remove an organization's designation; (12) the Secretary of State may revoke the designation; (13) or the D.C. Circuit may review the Secretary's decision and order revocation of the designation. (14)

      If an FTO believes that its circumstances have sufficiently changed "from the circumstances that were the basis for the designation," it may petition the Secretary of State to revoke the designation. (15) After receiving a petition for revocation, the Secretary has 180 days to make a final determination, (16) and the Secretary must revoke the FTO designation if she determines either that "the circumstances that were the basis for the designation have changed in such a manner as to warrant revocation," or that "the national security of the United States warrants a revocation." (17) And even if an organization does not petition the Secretary for revocation, [section] 1189 requires the Secretary to make this same inquiry for every FTO at least once every five years. (18)

      In conducting a review of an organization's FTO designation, the Secretary of State must base her decision on a documented administrative record. (19) The statute is silent as to what must be included in that record. As such, courts have recognized that the Secretary's record may include third-hand accounts, information from intelligence sources, open-source information from the Internet, and other non-traditional types of evidence--all of which courts may struggle to evaluate. (20) In addition, the administrative record may include both unclassified and classified material. (21) Therefore the label "administrative record" may be misleading in that it does not contain the sort of material that "courts and agencies [typically] think of as evidence." (22) For that reason, the D.C. Circuit has recognized that [section] 1189 is both substantively and procedurally "unique."...