DC Cir: FTOs & due process

[Aimee Farr]

NAT'L COUNCIL OF RESISTANCE OF IRAN v. DEP'T OF STATE
http://laws.lp.findlaw.com/dc/991438a.html#Footref2

DC Cir.: putative foreign terrorist organizations with a US presence, not
necessarily a "substantial" presence, are entitled to notice and hearing
prior to FTO designation. See also,
http://www.state.gov/www/global/terrorism/fto_info_1999.html

I seem to remember some AEDPA discussions in the archives. AEDPA provides
that all persons within or subject to US jurisdiction are forbidden from
"knowingly providing material support or resources" to designated FTOs
(among other penalties). The review process includes classified materials,
so it has been the subject of some FISA-like controversy. This case
concerned the designation of an "alter ego" FTO, and is interesting from
several angles.

...particularly this one, if you read between the lines.

>From the opinion:
=================
<snip>

To oversimplify, assume the Secretary gives notice to one of the entities
that:

We are considering designating you as a foreign terrorist organization, and
in addition to classified information, we will be using the following
summarized administrative record. You have the right to come forward with
any other evidence you may have that you are not a foreign terrorist
organization.

It is not immediately apparent how the foreign policy goals of the
government in general and the Secretary in particular would be inherently
impaired by that notice. It is particular- ly difficult to discern how such
a notice could interfere with the Secretary's legitimate goals were it
presented to an entity such as the PMOI concerning its redesignation. We
recog- nize, as we have recognized before, that items of classified
information which do not appear dangerous or perhaps even important to
judges might "make all too much sense to a foreign counterintelligence
specialist who could learn much about this nation's intelligence-gathering
capabilities from what these documents revealed about sources and methods."
Yunis, 867 F.2d at 623. We extend that recognition to the possibility that
alerting a previously undesignated organiza- tion to the impending
designation as a foreign terrorist organization might work harm to this
county's foreign policy goals in ways that the court would not immediately
perceive. We therefore wish to make plain that we do not foreclose the
possibility of the Secretary, in an appropriate case, demon- strating the
necessity of withholding all notice and all oppor- tunity to present
evidence until the designation is already made. The difficulty with that in
the present case is that the Secretary has made no attempt at such a
showing.

We therefore hold that the Secretary must afford the limited due process
available to the putative foreign terrorist organization prior to the
deprivation worked by designating that entity as such with its attendant
consequences, unless he can make a showing of particularized need.

[...]

~Aimee

"For holding conversation in suspicious places, whips may be substituted for
fines. In the center of the village, an outcaste person may whip such women
five times on each of the sides of their body."