The Huffington Post
By: Allan Gerson
Last Friday, the U.S. Court of Appeals for the D.C. Circuit in Washington ruled that the U.S. State Department cannot arbitrarily designate the People’s Mujahadin Organization of Iran (PMOI) as a foreign terrorist organization, thus imposing criminal penalties on any American citizen who offers so much as a nickel to the group.
The State Department had since 1997 — with little or no explanation- repeatedly re-designated the PMOI as a foreign terrorist organization. In doing so, it ignored the organization’s assertions that it had long since abandoned any commitment to violence, and — as it had made clear — that its militant actions of the past had been directed against the mullahs of Iran, not American citizens.
The court found the State Department could not arbitrarily invoke the need for diplomatic flexibility to deny the PMOI, or any similarly charged group, with the basic due process protection of ensuring that the findings against it were based on a principled and reasoned assessment of evidence.
The decision represents a victory for all Americans opposed to the perversion of legitimate national security interests by giving the State Department unfettered discretion to determine who deserves to be labeled as a terrorist entity.
In its ruling, the Court of Appeals concluded that the Secretary of State had flagrantly denied the PMOI the basic due process protections of being able to confront and rebut ones accuser before being stigmatized as a terrorist organization and suffering the grave consequences of such a designation.
To appreciate the magnitude of the decision, one need look only at the political context. For undisclosed reasons undoubtedly tied to placating Iran in connection with hoped-for nuclear arms or other negotiations, the State Department had essentially declared that it was prepared to do whatever it could to keep the PMOI — one of Iran’s major movements for democratic change — on the US terrorist list.
Never mind that the enemy of my enemy is usually deemed my friend. Suffice it to say that, for the State Department, political wisdom dictated a contrary approach, with little regard for the rule of law.
But, can a Secretary of State be responsible only to his or her self in designating entities as terrorist organizations? Can the State Department blithely ignore the real life consequences of criminalizing both the activities of such organizations and those that lend it material support? And this, without any need to provide the Court with a showing that its decision stands the threshold test of reasonableness: credible evidence? Amazingly, that is what the State Department contended in the US Court of Appeals.
This was too much for the Court, which ruled that minimal due-process does not permit designation of an entity as a terrorist organization, with all the negative consequences that entails, unless the State Department first provides the organization an opportunity to rebut the charges. The Court of Appeals made clear that it was not talking about classified material on which the Secretary might have relied, but the unclassified record as well. That record was deemed inherently suspicious. There was for example, the Court noted, no evidence offered by the Secretary demonstrating good reason to rely on unnamed sources for some of the extreme charges (preparation for suicide missions in Karbala).
For these reasons, the case was remanded to the Department of State with the requirement that the Secretary provide a meaningful opportunity for the PMOI to review the unclassified record on which she relied. She has also been required by the Court of Appeals to indicate which sources she regards as sufficiently credible, and implicitly, to indicate why she regards those sources as credible.
This may not be final vindication for the PMOI, but it is a giant stride in that direction. Beyond the PMOI, the decision represents a resounding victory for human rights and civil liberties as it declares loudly and clearly that the Executive Branch of the US government is bound by the rule of law, even when trying to maximize its diplomatic flexibility.
*Allan Gerson is Chairman of AG International Law, a Washington, D.C. law firm. He served as Senior Counsel to the U.S. Delegation to the United Nations during the Reagan Administration, and is the author of “Israel, the West Bank, and International Law” (1978), “The Kirkpatrick Mission” (1991), and “The Price of Terror” (2002).