URU, Alm.del - 2009-10 - Endeligt svar på spørgsmål 214: Spm. om ministeren vil oversende kopi af den dom, som en amerikansk domstol (D.C. Circuit Court) afsagde den 16. juli 2010 til fordel for den iranske modstandsorganisation, PMOI, til udenrigsministeren

Andrew L. Freyargued the cause for the petitioner.MiriamR. Nemetz, Melanie W. Rughani, Steven M. Schneebaum, E.Barrett Prettyman Jr.andJoshua D. Hawleywere on brief.Ronald G. Precupentered an appearance.Paul B. Stephan IIIwas on brief foramici curiaetheHonorable Alejo Vidal-Quadras et al. in support of thepetitioner.James C. MartinandW. Thomas McGough Jr.were onbrief foramici curiaeColonel Gary L. Morsch, M.D. et al. insupport of the petitioner.

2Lawrence S. RobbinsandAlan E. Untereinerwere on briefforamici curiaeIranian-American Society of Texas et al. insupport of the petitioner.Viet D. DinhandNathan A. Saleswere on brief foramicicuriaeMembers of Congress in support of the petitioner.Douglas Letter,Attorney, United States Department ofJustice, argued the cause for the respondents.Ileana M.Ciobanu,Attorney, was on brief.Before: HENDERSONand TATEL,Circuit Judges,andWILLIAMS,Senior Circuit Judge.Opinion for the court filed PERCURIAM.Concurring opinion filed byCircuit JudgeHENDERSON.PERCURIAM: This case is the fifth in a series of relatedactions challenging the United States Secretary of State’sdesignation of the Mojahedin-e Khalq Organization (MEK) andits aliases as a Foreign Terrorist Organization (FTO). TheMEK, also called the People’s Mojahedin Organization of Iran(PMOI),1has challenged its FTO status before this court threetimes.See People’s Mojahedin Org. of Iran v. U.S. Dep’t ofState,182 F.3d 17, 18-19 (D.C. Cir. 1999) (PMOII); Nat’lCouncil of Resistance of Iran v. Dep’t of State,251 F.3d 192,195-96 (D.C. Cir. 2001) (NCRII); People’s Mojahedin Org. ofIran v. U.S. Dep’t of State,327 F.3d 1238, 1239 (D.C. Cir.2003) (PMOIII).The National Council of Resistance of Iran(NCRI), which the United States Department of State (State)considers an alias or alter ego of the PMOI, has challenged itsFTO status twice—once with the PMOI and once on its own.See NCRI I,251 F.3d at 197;Nat’l Council of Resistance of Iran

3v. Dep’t of State,373 F.3d 152, 154 (D.C. Cir. 2004) (NCRIII).InNCRI I,the court remanded the petition to the Secretary toprovide certain due process protections to the PMOI and theNCRI.See251 F.3d at 209. In the other three cases, includingboth petitions for review following remand inNCRI I,the courtdenied the petitioners’ challenges.On July 15, 2008, citing a change in its circumstances, thePMOI petitioned State and its Secretary for revocation of thePMOI’s FTO designation. After assembling a record comprisedof materials submitted by both the PMOI and the U.S.intelligence community, including classified information, theSecretary rejected the PMOI’s petition on January 12, 2009.SeeIn the Matter of the Review of the Designation of Mujahedin-eKhalq Organization (MEK), and All Designated Aliases, as aForeign Terrorist Organization, 74 Fed. Reg. 1273, 1273-74(Jan. 12, 2009). The PMOI now seeks review of the Secretary’sdecision. We conclude that the Secretary failed to accord thePMOI the due process protections outlined in our previousdecisions and therefore remand.I.Although our earlier decisions detail the statutory schemeand the PMOI’s prior designations, we briefly review themagain together with the events leading to this action.A.We begin by describing the Anti-Terrorism and EffectiveDeath Penalty Act of 1996 (AEDPA), which was amended aspart of the Intelligence Reform and Terrorist Prevention Act of2004, Pub. L. No. 108-458, § 7119, 118 Stat. 3638, 3801 (2004).Under AEDPA, the Secretary may designate an entity as an FTOif she determines that (A) the entity is foreign, (B) it engages in“terrorist activity” or “terrorism” and (C) the terrorist activitythreatens the security of the United States or its nationals. 8U.S.C. § 1189(a)(1). “Terrorist activity” is defined in section

41182(a)(3)(B)(iii) and includes hijacking, sabotage, kidnapping,assassination and the use of explosives, firearms, or biological,chemical or nuclear weapons with intent to endanger people orproperty, or a threat or conspiracy to do any of the foregoing.To “engage in terrorist activity” involves, among other acts,soliciting funds or affording material support for terroristactivities,id.§ 1182(a)(3)(B)(iv), while “terrorism” means“premeditated, politically motivated violence perpetrated againstnoncombatant targets by subnational groups or clandestineagents,” 22 U.S.C. § 2656f(d)(2).The FTO designation has at least three consequences: theSecretary of the United States Treasury Department may freezethe FTO’s assets, 8 U.S.C. § 1189(a)(2)(C); FTO members arebarred from entering the United States,id.§ 1182(a)(3)(B)(i)(IV), (V); and those who knowingly provide“material support or resources” to an FTO are subject tocriminal prosecution, 18 U.S.C. § 2339B(a)(1).See KahaneChai v. Dep’t of State,466 F.3d 125, 127 (D.C. Cir. 2006);NCRI II,373 F.3d at 154. A designated organization canattempt to avoid these consequences by seeking review in thiscourt no later than thirty days after publication in the FederalRegister of the Secretary’s designation, amended designation ordetermination in response to a petition for revocation.See8U.S.C. § 1189(c)(1). Our review is based “solely upon theadministrative record, except that the Government may submit,for ex parte and in camera review, classified information” thatthe Secretary used to reach her decision.Id.§ 1189(c)(2). Thereview “sounds like the familiar procedure normally employedby the Congress to afford due process in administrativeproceedings” and is “reminiscent of other administrativereview.”NCRI I,251 F.3d at 196-97. Employing “APA-likelanguage,”PMOI I,182 F.3d at 22, the statute requires that we“hold unlawful and set aside a designation, amendeddesignation, or determination in response to a petition forrevocation” that we find:

5(A) arbitrary, capricious, an abuse of discretion, orotherwise not in accordance with law;(B) contrary to constitutional right, power, privilege, orimmunity;(C) in excess of statutory jurisdiction, authority, orlimitation, or short of statutory right;(D) lacking substantial support in the administrativerecord taken as a whole or in classified informationsubmitted to the court under paragraph (2), or(E) not in accord with the procedures required by law.8 U.S.C. § 1189(c)(3). This standard of review applies only tothe first and second requirements, namely, (1) that theorganization is foreign and (2) that it engages in terrorism orterrorist activity or retains the capability and intent to do so. Wehave held that the third requirement—that the organization’sactivities threaten U.S. nationals or national security—presentsan unreviewable political question.PMOI I,182 F.3d at 23.B.As originally enacted, AEDPA permitted an FTOdesignation to remain in effect for only two years, whichrequired the Secretary at the end of that time period to eithercompile a new administrative record and renew the designationor allow it to lapse.See8 U.S.C. § 1189(a)(4)(A)-(B) (2003).Her determination was subject to review in this court.Id.§ 1189(b) (2003). The Secretary first designated the PMOI asan FTO under AEDPA in 1997 and made successivedesignations in 1999, 2001 and 2003.SeeDesignation ofForeign Terrorist Organizations, 62 Fed. Reg. 52,650 (Oct. 8,1997) (1997 Designation); Designation of Foreign TerroristOrganizations, 64 Fed. Reg. 55,112 (Oct. 8, 1999) (1999Designation); Redesignation of Foreign Terrorist Organizations,66 Fed. Reg. 51,088, 51,089 (Oct. 5, 2001) (2001

6Redesignation); Redesignation of Foreign TerroristOrganizations, 68 Fed. Reg. 56,860, 56,861 (Oct. 2, 2003) (2003Redesignation). InPMOI I,we denied the PMOI’s petition forreview of the initial 1997 Designation. 182 F.3d at 25. In her1999 redesignation, the Secretary coupled the PMOI with theNCRI, which the Secretary considered the PMOI’s alter ego oralias.See1999 Designation. On review, we held that theSecretary had substantial support to so conclude but weremanded after concluding that the PMOI and the NCRI hadbeen denied due process.See NCRI I,251 F.3d at 209.On remand, the Secretary allowed the PMOI and the NCRIto respond to the unclassified portions of the Secretary’sadministrative record and also to supplement it. After reviewingthe record so comprised, the Secretary re-entered the 1999Designation as to the PMOI on September 24, 2001,seeLetterof Ambassador Francis X. Taylor, Coordinator forCounterterrorism, U.S. Dep’t of State, at 2 (Sept. 24, 2001), andbegan a new two-year designation the following month as toboth the PMOI and the NCRI,see2001 Redesignation. Wedenied the PMOI’s petition for review.See PMOI II,327 F.3dat 1245. The Secretary’s 2001 Redesignation also concludedthat the NCRI was the PMOI’s alter ego and was thus alsoproperly designated an FTO. At the same time, State assuredthe NCRI that it would make ade novodetermination of its FTOdesignation after completing a review of the materials the NCRIhad submitted to the Secretary.See NCRI II,373 F.3d at 155(citing Letter of Ambassador Francis X. Taylor, Coordinator forCounterterrorism, U.S. Dep’t of State, at 1 (Oct. 5, 2001)). InMay 2003, the Secretary left in place the 1999 Designation and2001 Redesignation of the NCRI as an alias of the PMOI and anFTO and, on review, we upheld the Secretary’s decision.SeeNCRI II,373 F.3d at 154 (denying petition for review because“the Secretary’s latest designation complied with the governingstatute and all constitutional requirements”). Before our

7decision issued, the Secretary had already redesignated thePMOI again in October 2003.2See2003 Redesignation.Shortly afterNCRI II,and while the 2003 Redesignation ofthe PMOI was still in effect, the Congress lessened theSecretary’s administrative burden by amending AEDPA toremove the two-year limitation on an FTO designation.SeeIntelligence Reform and Terrorist Prevention Act of 2004§ 7119. A designation no longer lapses. Instead, a designatedorganization may seek revocation two years after the designationis made or, if the designated organization has previously filed apetition for revocation, two years after that petition is resolved.8 U.S.C. § 1189(a)(4)(B)(ii). To seek revocation, an FTO “mustprovide evidence in that petition that the relevant circumstances. . . are sufficiently different from the circumstances that werethe basis for the designation such that a revocation with respectto the organization is warranted.”Id.§ 1189(a)(4)(B)(iii). TheSecretary has 180 days from the date of the petition to make herrevocation decision.Id.§ 1189(a)(4)(B)(iv)(I). In making herdecision, the Secretary may rely on classified information,which “shall not be subject to disclosure for such time as itremains classified, except that such information may bedisclosed to a court ex parte and in camera for purposes ofjudicial review.”Id.§ 1189(a)(4)(B)(iv)(II). If five years elapsewithout a petition for revocation from the FTO, the Secretary

The Secretary designated the Mujahedin-e Khalq Organization,along with the following aliases: Mujahedin-e Khalq; MEK; MKO;People’s Mujahedin Organization of Iran (including its U.S. office andall other offices worldwide); PMOI; Organization of the People’s HolyWarriors of Iran; Sazeman-e Mujahedin-e Khalq-e Iran; NationalCouncil of Resistance (including its U.S. office and all other officesworldwide); NCR; National Council of Resistance of Iran (includingits U.S. office and all other offices worldwide); NCRI; NationalLiberation Army of Iran; NLA; and the Muslim Iranian Student’sSociety. 2003 Redesignation.

8conducts her own review to determine if revocation isappropriate.Id.§ 1189(a)(4)(C)(i). Unlike a determinationmade in response to a petition for revocation, herex mero motudecision is not judicially reviewable.Id.§ 1189(a)(4)(C)(ii).While the Secretary may revoke a designation at any time,id.§ 1189(a)(6)(A), the statute directs that sheshallrevoke adesignation if she finds that either “the circumstances that werethe basis for the designation have changed in such a manner asto warrant revocation,” or “the national security of the UnitedStates warrants a revocation,”id.C.This action began in July 2008, when the PMOI filed apetition for revocation of its 2003 Redesignation. The PMOIargued that the 2003 Redesignation should be revoked becauseof its dramatically changed circumstances since the Secretary’sand this court’s last reviews. It submitted evidence to theSecretary of its changed circumstances, asserting that, since itsinitial FTO designation in 1997, it had: ceased its militarycampaign against the Iranian regime and renounced violence in2001; voluntarily handed over its arms to U.S. forces in Iraq andcooperated with U.S. officials at Camp Ashraf (where all of itsmembers operating in Iraq are consolidated) in 2003; sharedintelligence with the U.S. government regarding Iran’s nuclearprogram; in 2004 obtained “protected person” status under theFourth Geneva Convention for all PMOI members at CampAshraf based on the U.S. investigators’ conclusions that nonewas a combatant or had committed a crime under any U.S. laws;disbanded its military units and disarmed the PMOI members atAshraf, all of whom signed a document rejecting violence andterror; and obtained delisting as a terrorist organization from theUnited Kingdom (the Proscribed Organisations AppealCommission and the Court of Appeal) in 2008 and from theEuropean Union (the European Court of First Instance) in 2009.The PMOI also thrice supplemented its petition with additional

9information and letters in support from members of the U.S.Congress, members of the UK and European parliaments andretired members of the U.S. military, among others.After reviewing an administrative record consisting of bothclassified and unclassified information, the Secretary denied thePMOI’s petition and published its denial in the Federal Registeron January 12, 2009.See74 Fed. Reg. at 1273-74. She alsoprovided the PMOI with a heavily redacted 20-pageadministrative summary of State’s review of the record, whichsummary referred to 33 exhibits, many of which were alsoheavily or entirely redacted.SeeAdmin. Summ. (Jan. 8, 2009)(Unclassified Version); Revised Admin. Summ. (Apr. 24, 2009)(Unclassified Version). The Secretary’s determination wasbased on the administrative record, “supporting exhibits andsupplemental filings by the MEK in support of the Petition, aswell as information from a variety of sources, including the U.S.Intelligence Community.” Revised Admin. Summ. 2. Shewrote that “in considering the evidence as a whole, the MEK hasnot shown that the relevant circumstances are sufficientlydifferent from the circumstances that were the basis for the 2003re-designation,” and that “[a]s a consequence, the MEKcontinues to be a foreign organization that engages in terroristactivity . . . or terrorism . . . or retains the capability and intentto” do so.Id.; see74 Fed. Reg. at 1273-74. Nevertheless shealso noted:In light of the evidence submitted by the MEK that ithas renounced terrorism and the uncertaintysurrounding the MEK presence in Iraq, the continueddesignation of the MEK should be re-examined by theSecretary of State in the next two years even if theMEK does not file a petition for revocation.Revised Admin. Summ. 20. Although the Secretary informedthe PMOI of her decision the day before it was published in theFederal Register, she did not provide the organization any

10unclassified material on which she intended to rely.SeeResp’ts’ Br. 20 (after denying revocation petition “[t]he StateDepartment . . . provided to the PMOI an unclassified summaryof the evidence in the record and the agency’s analysis of theissues”).The PMOI filed a timely petition for review on February 11,2009 under 8 U.S.C. § 1189(c). It asks us to vacate theSecretary’s decision and remand with instructions to revoke itsFTO designation based on a lack of substantial support in therecord. Alternatively, the PMOI asks us to vacate itsdesignation on the ground that the Secretary did not comply withthe due process requirements set forth in our earlier decisions byfailing to provide it with advance notice of her proposed actionand the unclassified record on which she intended to rely, aswell as by failing to provide it with any access to the classifiedrecord.State submitted its classified administrative record onMarch 30, 2009 for ex parte and in camera review under 8U.S.C. § 1189(c)(2); it subsequently filed a redacted,unclassified version in August 2009. In filing the latterdocument, State noted that it intended to file additionaldocuments as soon as its declassification review was finished.It later supplemented the record with newly declassified materialtwice—once on September 8, 2009, the day the PMOI’s openingbrief was due, and again on October 27, 2009, about two weeksbefore the PMOI’s reply brief due date.3

Among the disclosures in the declassified material: “the MEKtrained females at Camp Ashraf in Iraq to perform suicide attacks inKarbala”; “the MEK solicits money under the false pretext ofhumanitarian aid to the Iranian population”; “an August 2008 U.S.Intelligence Community Terrorist Threat Assessment, clearly statesthat the MEK retains a limited capability to engage in terrorist activityor terrorism”; “[t]he MEK publicly renounced violence in 2001, but

11II.Ordinarily, we would be required to decide whether to setaside the Secretary’s denial of the PMOI’s revocation petitionon the ground that her conclusion that the PMOI “engages interrorist activity . . . or terrorism . . . or retains the capability andintent to engage in terrorist activity or terrorism,” RevisedAdmin. Summ. 2-3, “lack[s] substantial support in theadministrative record taken as a whole or in classifiedinformation submitted to the court.” 8 U.S.C. § 1189(c)(3)(D).Here, however, we need not determine the adequacy of therecord because, as the PMOI argues, our review “is notsufficient to supply the otherwise absent due process protection”of notice to the designated organization and an opportunity fora meaningful hearing.NCRI I,251 F.3d at 208 (designatedorganization entitled to “opportunity to be heard ‘at ameaningful time and in a meaningful manner’” (quotingMathews v. Eldridge,424 U.S. 319, 333 (1976))). In otherwords, even were we to agree with State that the record issufficient, we cannot uphold the designation absent theprocedural safeguards required by our precedent. Specifically,our cases require the Secretary to notify the PMOI of theunclassified material “upon which [s]he propose[d] to rely” andto allow the PMOI “the opportunity to present, at least in written

limited intelligence reporting indicates that the group has not endedmilitary operations, repudiated violence, or completely or voluntarilydisarmed”; “[t]he [intelligence community] assesses that althoughthere has not been a confirmed terrorist attack by the MEK since theorganization surrendered to Coalition Forces in 2003, the MEK retainsa limited capability and the intent to use violence to achieve itspolitical goals”; and “UN inspectors say that much of the informationprovided to the UN by the MEK about Iran’s nuclear program has apolitical purpose and has been wrong.” Suppl. Admin. R. (filed Oct.27, 2009).

12form, such evidence as [it] may be able to produce to rebut theadministrative record or otherwise negate the proposition that”it is an FTO.NCRI I,251 F.3d at 209.This did not happen here. The PMOI was notified of theSecretary’s decision and permitted access to the unclassifiedportion of the record onlyafterthe decision was final.4Andeven though the PMOI was given the opportunity to include inthe record its own evidence supporting delisting, it had noopportunity to rebut the unclassified portion of the record theSecretary was compiling—an omission, the PMOI argues, thatdeprived it of the due process protections detailed in ourprevious decisions.SeePet’r’s Br. 23 (“[T]he Secretary’sdecision is procedurally infirm because PMOI was given noopportunity to rebut the administrative record . . . .”).State does not deny that the Secretary failed to provide thetype of notice specified inNCRI I.But it argues that shecomplied with our precedent well enough in light of thestatutory scheme as altered by the 2004 AEDPA amendmentsand the “flexible” nature of due process. Arg. Tr. 22:18-21;seeNCRI I,251 F.3d at 205 (quotingMorrissey v. Brewer,408 U.S.471, 481 (1972)). Within that framework, State argues, theSecretary provided the PMOI with all of the processconstitutionally due by informally meeting with the PMOI inOctober 2008 (at the PMOI’s request), by allowing the PMOI tosupplement the administrative record with evidence of its ownand by sharing unclassified material with the PMOI (but notbefore her denial of the revocation petition).SeeResp’ts’ Br.18, 44-45 (citingPMOI II,327 F.3d at 1242;NCRI I,251 F.3d

13at 208-09) (PMOI received “notice along with the opportunityto be effectively heard” and “nothing more is required by thisCourt”). State also urges that, even if the Secretary should haveturned over the unclassified portion of the record before itsJanuary 2009 decision, her failure to do so was harmless.We disagree on both counts. Nothing in the 2004amendments provides a basis for relaxing the due processrequirements we outlined for the redesignation decision at issueinNCRI I.Although phrased slightly differently, the Secretary’sfundamental inquiry is the same for both redesignation under theold statute and revocation under the new.Compare8 U.S.C.§ 1189(a)(4)(B) (2003) (redesignation appropriate if “relevantcircumstances” initially warranting designation “still exist”)with id.§ 1189(a)(6) (revocation appropriate if “circumstancesthat were the basis for the designation have changed in such amanner as to warrant revocation”). So, too, is our standard ofreview the same under both versions of the statute whether wereview a “designation,” a “redesignation” or a “petition forrevocation.”See id.§ 1189(c)(3). And while the amendedversion of the statute puts the burden on an FTO to “provideevidence” of changed circumstances,see id.§ 1189(a)(4)(B)(iii),the Secretary must still compile a record supporting thecontinued designation,see id.§ 1189(a)(6)(B). In short, wehave held due process requires that the PMOI be notified of theunclassified material on which the Secretary proposes to relyand an opportunity to respond to that materialbeforeitsredesignation; nothing in the amended statute suggests that thisprotection is any less necessary in the revocation context.5At oral argument, State noted that, unlike the procedureoriginally set forth in AEDPA, whereby the Secretary compiled a newadministrative record on a biennial basis, today no record is compileduntil the FTO files a petition for revocation.SeeArg. Tr. 29-30. Thisleaves the Secretary only 180 days from that filing to contact multipledefense and intelligence agencies, compile the administrative record5

14Nor do we find the Secretary’s failure to provide therequired notice and unclassified material in advance of herdecision harmless because the information at the “heart” of theSecretary’s decision is classified and could not have been sharedin any event. Resp’ts’ Br. 45-46. State’s characterizationnotwithstanding, at argument it acknowledged that theSecretary’s decision was based not on “just the classifiedinformation” but rather “on the record as a whole.” Arg. Tr.31:24-32:1-7;seeSuppl. Admin. R. 19 (“In considering thebody of evidence as a whole, intelligence and national securityexperts conclude that the MEK has not demonstrated that thecircumstances that were the basis for the original designationhave changed in such a manner as to warrant revocation.”).Hence, State asks us to assume that nothing the PMOI wouldhave offered—not even evidence refuting whateverunclassifiedmaterial the Secretary may have relied on—could have changedher mind. We explicitly rejected this argument inNCRI I. See251 F.3d at 209 (“We have no reason to presume that thepetitioners in this particular case could have offered evidencewhich might have either changed the Secretary’s mind oraffected the adequacy of the record[, but] . . . without the dueprocess protections which we have outlined, we cannot presumethe contrary either.”). Far fromassumingthat the classifiedrecord obviated further review, we held that our limited role “isnot sufficient to supply the otherwise absent due processprotection.”Id.at 209.6

15To illustrate, during the briefing in this case, the Secretarytwice supplemented the unclassified record with formerlyclassified materials. These disclosures include the statementthat PMOI members planned suicide attacks in Karbala.Because it learned of this information only after it petitioned forjudicial review, the PMOI attempts to distinguish and discreditit for the first time before us.SeePet’r’s Reply Br. 21 (callingallegations “so manifestly implausible that they earned nomention in the Government’s brief”). CitingPMOI I,182 F.3dat 19, 25, State argues that the Secretary may consider “sourcesnamed and unnamed, the accuracy of which we have no way ofevaluating,” and that we cannot make any “judgmentwhatsoever regarding whether the material before the Secretaryis or is not true.” Nevertheless, to the extent we defer to theSecretary’s fact-finding process, we have done so with theunderstanding that the Secretary has adhered to the proceduralsafeguards of the due process clause,see NCRI I,251 F.3d at209, and afforded the designated organization a fair opportunityto respond to the unclassified record.At oral argument, State suggested that the PMOI, now inpossession of the unclassified portions of the record (includingthe newly declassified material), may go back to the Secretary

protections, we cast doubt on whether any denial could be foundharmless, perhaps because a convincing response by the FTO to theunclassified material might affect the Secretary’s view not only of thatevidence but of the classified material as well.See251 F.3d at 209.In other words, because of the due process denial, we declined toconsider whether the record nevertheless substantially supported theSecretary’s determination. And while it is true that we held a similardue process denial harmless inKahane Chai,we did so only becausethe government, in response to the petitioners’ objections, “offered todo and in 2004 did ade novodetermination of their status” with theattendant “opportunity to inspect and to supplement the record uponwhich the review would be based.” 466 F.3d at 132.

16and provide evidence to rebut it.SeeArg. Tr. 26:19-20. Wethink a better approach is the one the then-Secretary took afterremand inNCRI I,when, apparently faced with a similar timecrunch, he made a designation that was to be reevaluated oncehe fully reviewed the supplemented record.See NCRI II,373F.3d at 155 (“At that time, the State Department assured NCRIthat although ‘the present situation . . . requires continueddesignation of [NCRI] as an alias of MEK for now,’ upon thecompletion of review of NCRI’s submissions, ‘the Secretarywill make ade novodetermination in light of the entire record,including the material you have submitted.’” (quoting Letter ofAmbassador Francis X. Taylor, Coordinator forCounterterrorism, U.S. Dep’t of State, at 1 (Oct. 5, 2001))).Our reluctance to accept State’s “no harm, no foul” theoryis greater in light of the fact that we are unsure what material theSecretary in fact relied on or to what portion of 8 U.S.C.§ 1189(a)(1)(B) she found it relevant. While “it is emphaticallynot our province to second-guess the Secretary’s judgment as towhich affidavits to credit and upon whose conclusions to rely,”the Congress has required us to determine “whether the‘support’ marshaled for the Secretary’s designation was‘substantial.’”NCRI II,373 F.3d at 159 (quoting 8 U.S.C.§ 1889A(b)(3)(D)). Some of the reports included in theSecretary’s analysis on their face express reservations about theaccuracy of the information contained therein.See, e.g.,Suppl.Admin. R., MEK-11 (describing “possible plans to attack [the]international zone in Baghdad” but conceding that “the ultimatesources of the information was [sic] unknown and as such, theiraccess, veracity, and motivations were unknown”). Similarly,while including reports about the Karbala suicide attack plotdescribed above, the Secretary did not indicate whether sheaccepted or discredited the reports and we do not know whetherthe PMOI can rebut the reports.

17In other instances, the Secretary cited a source that itseemed to regard as credible but did not indicate to what part ofthe statute the source’s information was relevant. For example,her analysis described a federal grand jury indictment allegingthat MEK has engaged in fraud in fundraising operations andshe faulted the PMOI for failing to discuss its finances in itssubmission to the Secretary. Suppl. Admin. R. 11. It isunclear, however, whether the Secretary believes thatfundraising under false pretenses is direct evidence of terroristactivity or instead bears on the PMOI’s “capability” to engagein terrorist activity in the future or its “intent” to do so. 8 U.S.C.§ 1189(a)(1)(B). While we will not substitute our judgement forthat of the Secretary in deciding which sources are credible, wemust determine whether the record before her provides “asufficient basis for a reasonable person to conclude” that thestatutory requirements have been met.Kahane Chai,466 F.3dat 129 (citingPMOI I,182 F.3d at 25). Without knowingwhether, or how, the Secretary evaluated the record material, weare unable to do so.III.As we noted inNCRI I,“[w]e recognize that a strict andimmediate application of the principles of law which we haveset forth herein could be taken to require a revocation of thedesignation[] before us[, but] . . . we also recognize the realitiesof the foreign policy and national security concerns asserted bythe Secretary in support of th[e] designation.” 251 F.3d at 209.We thus leave the designation in place but remand withinstructions to the Secretary to provide the PMOI theopportunity to review and rebut the unclassified portions of therecord on which she relied. In so doing, we emphasize twothings:First, as earlier explained, the Secretary should indicate inher administrative summary which sources she regards assufficiently credible that she relies on them; and she should

18explain to which part of section 1189(a)(1)(B) the informationshe relies on relates. Second, although the Secretary must givethe PMOI an opportunity to rebut the unclassified material onwhich she relies,7AEDPA does not allow access to the classifiedrecord as it makes clear that classified material “shall not besubject to disclosure for such time as it remains classified,except that such information may be disclosed to a court exparte and in camera for purposes of judicial review.” 8 U.S.C.§ 1189(a)(4)(B)(iv)(II);see id.§ 1189(c)(2) (providing forcourt’s “ex parte and in camera review” of “classifiedinformation used in making the designation”). Our cases underAEDPA have suggested that this procedure can satisfy dueprocess requirements, at least where the Secretary has not reliedcritically on classified material and the unclassified materialprovided to the FTO is sufficient to justify the designation.SeeNCRI II,373 F.3d at 159-60;PMOI II,327 F.3d at 1243 (“Wealready decided in [NCRII]that due process required thedisclosure ofonlythe unclassified portions of the administrativerecord.”) (emphasis in original);NCRI I,251 F.3d at 202, 208-09 (“We acknowledge that in reviewing the whole record, wehave included the classified material[, but] . . . we will not andcannot disclose the contents of the record,” which “is within theprivilege and prerogative of the executive”);see also Jifry v.Fed. Aviation Admin.,370 F.3d 1174, 1182, 1184 (D.C. Cir.2004) (pilot denied licensure has no right to access to classifiedrecord because “[t]he due process protections afforded . . .parallel those provided under similar circumstances in [NCRIIandPMOI II],and are sufficient to satisfy our case law”);HolyLand Found. for Relief & Dev. v. Ashcroft,333 F.3d 156, 164

19(D.C. Cir. 2003) (“HLF’s complaint, like that of the DesignatedForeign Terrorists Organizations in [NCRIIandPMOI II],thatdue process prevents its designation [under a different law]based upon classified information to which it has not had accessis of no avail.”). We note, however, that none of the AEDPAcases decides whether an administrative decision relyingcritically on undisclosed classified material would comport withdue process because in none was the classified record essentialto uphold an FTO designation. But they do indicate that, for thepurpose of today’s remand, affording PMOI an opportunity toreview and rebut the unclassified portions of the record, coupledwith the Secretary’s assurance that she has evaluated thematerial—and the sources therefor—that she relied on to makeher decision, may be sufficient to provide the requisite dueprocess.For the reasons set forth above, the Secretary’s denial of thePeople’s Mojahedin of Iran’s petition for revocation of its 2003designation as a foreign terrorist organization is remanded to theSecretary for further proceedings consistent with this opinion.So ordered.

KARENLECRAFTHENDERSON, Circuit Judge,concurring:We are to uphold the Secretary’s determination unless it“lack[s] substantial support in the administrative record taken asa wholeor in classified information submitted to the court.”8U.S.C. § 1189(c)(3)(D) (emphasis added). In my view, theclassified portion of the administrative record provides“substantial support” for her determination that the PMOI eithercontinues to engage in terrorism or terrorist activity or retainsthe capability and intent to do so and, consequently, for herdenial of the PMOI’s revocation petition. Further, our caseshave repeatedly emphasized what the statute makes clear: thePMOI enjoys no right to access classified material the Secretaryrelied on.See NCRI I,251 F.3d at 208 (state’s notice todesignated entities “need not disclose the classified informationto be presentedin cameraandex parteto the court under thestatute”);see also PMOI II,327 F.3d at 1242 (we “alreadydecided in [NCRII]that due process required the disclosure ofonlythe unclassified portions”) (emphasis in original). And wehave upheld against due process challenge an AEDPAdesignation that relied onbothclassified and unclassifiedmaterial.See NCRI II,373 F.3d at 152 (“Basedon our reviewof the entire administrative record and the classified materialsappended thereto,we find that the Secretary did have anadequate basis for his conclusion.”) (emphasis added).Although we acknowledged later in the same opinion that theunclassified record alone would have sufficed to support thedesignation, we have consistently and unambiguously followedthis reading ofNCRI Iin virtually every AEDPA case.1See id.For example, inPMOI IIwe rejected the contention that thePMOI’s redesignation under AEDPA was unconstitutional because“the Secretary relied on secret information to which [the PMOI was]not afforded access”: “We have already established in [NCRII]theprocess which is due under the circumstances of this sensitive matterof classified intelligence in the effort to combat foreign terrorism. TheSecretary has complied with the standard we set forth therein, andnothing further is due.”PMOI II,327 F.3d at 1242-43. The court1

2at 159-60 (access argument is “foreclosed by our earlierdecisions in [NCRII]andPMOI II”); cf. Kahane Chai v. Dep’tof State,466 F.3d 125, 129 (D.C. Cir. 2006) (declining toresolve due process claim because “we can uphold thedesignations based solely upon the unclassified portion of theadministrative record”). Moreover, other precedent also affirmsadministrative decisions relying on classified material, eachrejecting a due process challenge on the basis ofPMOI IIandNCRI I.2While these decisions are not under AEDPA, they treat

went on to note that “even if we err in describing the process due, evenhad the Petitioner been entitled to have its counsel or itself view theclassified information, the breach of that entitlement has caused it noharm.”Id.at 1243. But I read the subjunctive phrase beginning with“even if” as an alternative holding which meansbothholdingsconstitute precedent.See Natural Res. Def. Council, Inc. v. NuclearRegulatory Comm'n,216 F.3d 1180, 1189 (D.C. Cir. 2000) (“‘[W]herethere are two grounds, upon either of which an appellate court mayrest its decision, and it adopts both, the ruling on neither is obiter[dictum], but each is the judgment of the court, and of equal validitywith the other.’” (quotingDooling v. Overholser,243 F.2d 825, 828(D.C. Cir. 1957) (internal quotations omitted))).See Jifry v. Fed. Aviation Admin.,370 F.3d 1174, 1184 (D.C.Cir. 2004) (“While the pilots protest that without knowledge of thespecific evidence on which TSA relied, they are unable to defendagainst the charge that they are security risks, the court has rejectedthe same argument in the terrorism listing cases. The due processprotections afforded to them parallel those provided under similarcircumstances in [NCRIIandPMOI II],and are sufficient to satisfyour case law.”);Holy Land Found. for Relief & Dev. v. Ashcroft,333F.3d 156, 164 (D.C. Cir. 2003) (“That the designation comes under anExecutive Order issued under a different statutory scheme makes nodifference. HLF's complaint, like that of the Designated [FTOs] in theearlier cases, that due process prevents its designation based uponclassified information to which it has not had access[,] is of noavail.”).2

3our AEDPA precedent as binding and are, in any event, bindingthemselves.According to the Secretary, however, as inNCRI Iherdecision was based on both classified and unclassified material.Because the PMOI had no opportunity to access/rebut theunclassified portions before the Secretary’s decision was final,it is not clear that she would have denied the revocation petitionhad that material been made available to the PMOI earlier. Inaddition, the Secretary herself appears to have recognized theambiguity of the record by recommending asua spontereexamination of the PMOI’s status in two years. RevisedAdmin. Summ. 20 (“In light of the evidence submitted by theMEK that it has renounced terrorism and the uncertaintysurrounding the MEK presence in Iraq, the continueddesignation of the MEK should be re-examined by the Secretaryof State in the next two years even if the MEK does not file apetition for revocation.”). In short, were I confident that she hadevaluated and relied on what I consider to be the substantialsupport contained in the classified record only (along with thesources therefor), I would affirm. Because I am not, I join mycolleagues in remanding to the Secretary.