¹ People’s Mojahedin Organization of Iran v. United States Department of State, 182 F.3d 17 (D.C. Cir. 1999). The two groups filed separate petitions. Because they raised similar claims under the same statute, the court addressed both petitions in one opinion. See id. at 19 n.1.

² Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended in scattered sections of 8, 18, 28, 40 & 42 U.S.C.).

³ The term “Secretary,” which is used throughout section 302, “means the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General.” 8 U.S.C. §1189(c)(4).

⁴ Id. §1189(1).

⁵ In particular, section 302 (“Designation of Foreign Terrorist Organizations,” codified at 8 U.S.C. §1189) enables the Secretary of State to make the legal determinations required to trigger section 303 (“Prohibition of Terrorist Fundraising,” codified at 18 U.S.C. §2339B). Congress enacted these provisions of AEDPA to “strictly prohibit terrorist fundraising in the United States.” H.R. Rep. No. 104-383, at 43 (1995). Finding that many terrorist “organizations operate under the cloak of a humanitarian or charitable exercise,” Congress concluded that “[t]here is no other mechanism, other than an outright prohibition on contributions, to effectively prevent such [terrorist] organizations from using funds raised in the United States to further their terrorist activities abroad.” Id. at 43, 45. See also Humanitarian Law Project v. Reno, 9 F.Supp.2d 1176, 1193 (CD. Cal. 1998) (discussing the purposes of these provisions).

⁶ The PMO is an anti-Western Iranian dissident group with Marxist and Islamic ideological leanings. According to the information provided to the court by the Secretary, its “primary goal is the overthrow of the Iranian Government, after which it would seek to establish a nontheocratic republic.” People’s Mojahedin Org., 182 F.3d at 20. The group has been linked to several acts of political violence, including multiple bombings of public areas and corporate offices. The Secretary also provided reports linking the group to the assassination of American, citizens and the takeover of the U.S. embassy in Tehran. Id.

⁷ Since its founding in 1976, the LTTE has sought self-determination for the Tamil people of “Tamil Eelam” in the northern and eastern provinces of Sri Lanka. The Tamils constitute an ethnic group that, according to the LTTE, has for decades has been subjected to extensive human rights abuses and discriminatory treatment by the majority Sinhalese, who have governed Sri Lanka since the nation gained its independence from Great Britain in 1948. The LTTE has been linked with several assassinations and other violent tactics, including public bombings. People’s Mojahedin Org., 182 F.3d at 19–20.

⁸ See Designation of Foreign Terrorist Organizations, 62 Fed. Reg. 52,650 (1997). The designation also covers twenty-eight other organizations. See id.

⁹ See 8 U.S.C. §1189(b)(1).

¹⁰ People’s Mojahedin Org., 182 F.3d at 22–23.

¹¹ Id. at 23–24. The court also concluded that the Secretary’s finding that the organizations’ activities threatened national security is nonjusticiable. Id. at 23; see also Haig v. Agee, 453 U.S. 280 (1981); Chicago & S. Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103 (1948).

¹² 182 F.3d at 24–25.

¹³ Id. at 19.

¹⁴ Section 301 expresses Congress’s specific finding 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.” 18 U.S.C. §2339B note. Section 303 provides: “Whoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 10 years, or both.” 18 U.S.C. §2339B(a). Section 323 defines the term “material support or resources” as “currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.” 18 U.S.C. §2339A(b).

¹⁵ 8 U.S.C. §1189(a)(2)(C).

¹⁶ Id. §1189(a)(1).

¹⁷ See id. §1189(a)(2)(A).

¹⁸ See id. §1189(a)(2)(B).

¹⁹ Id. §1189(b)(1). The action must be filed within thirty days of the published designation. Id. Note that the designation may be challenged only by the groups themselves—and not by other organizations or individuals whose interests may be directly implicated by the designation. Section 1189(a)(8) provides that a defendant in a criminal action is not permitted to “raise any question concerning the validity of the issuance of such designation as a defense or an objection at any trial or hearing.” Id. §1189(a)(8). In this case, the court was careful to avoid deciding whether section 1189’s judicial review provisions would violate the rights of U.S. citizens prosecuted for transferring resources to designated terrorist groups. See People’s Mojahedin Org., 182 F.3d at 22 n.6 (“because the issue is not before us, we do not decide whether section 1189 deprives those in the United States of some constitutional right if they are members of, or wish to donate money to, an organization designated by the Secretary.”). It is unfortunate that the court was so unconcerned about this question and the deeply problematic implications of their position under established U.S. constitutional law. See, e.g., Yakus v. United States, 321 U.S. 414 (1944).

²⁰ 8 U.S.C. §1189(b)(2).

²¹ “The Court shall hold unlawful and set aside a designation the court finds to be: (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right; (D) lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court under paragraph (2), or (E) notin accord with the procedures required bylaw.” Id. §1189 (b)(3). In addition to having its designations set aside by the Court of Appeals, a group may cease to be designated as a foreign terrorist organization if: (1) tne Secretary fails to renew the designation after two years (id. §1189(a)(4)(B)); (2) Congress blocks or revokes a designation (id. §1189(a)(5)); or (3) the Secretary revokes the designation based on a finding that changed circumstances or national security warrants such a revocation (id. §1189(a)(6)(A)).

²² The LTTE also argued that it is a government rather than being a “foreign organization” within the meaning of section 302. The court rejected this claim on the grounds that the recognition or nonrecognition of foreign governments is “solely entrusted to the political branches.” People’s Mojahedin Org., 182 F.3d at 24. See also Jones v. United States, 137 U.S. 202, 212–13 (1890).

²³ See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) (plurality opinion) (setting aside the Attorney General’s designation of several organizations as “Communist” without providing them notice and opportunity to be heard).

²⁴ 8 U.S.C. §1189(a)(3)(B).

²⁵ 182 F.3d at 19.

²⁶ Id. at 22.

²⁷ Id. (“A foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise.”); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990).

²⁸ The court did point out, however, that cases involving the seizure of domestic assets might require a different approach. 182 F.3d at 22.

²⁹ “National security” is defined as “the national defense, foreign relations, or economic interests of the United States.” 8 U.S.C. §1189(c)(2).

³⁰ 333 U.S. 103 (1948).

³¹ 182 F.3d at 23. The court rejected, however, the suggestion that the nonjusticiability rationale applies equally to the Secretary’s designations. The court concluded that meaningful judicial review of the Secretary’s other requisite findings is necessary to give effect to the statute’s judicial review provision. Id. at 23–24.

³² 8 U.S.C. §1189(a)(1)(B); see 8 U.S.C. §1182(a)(3)(B)(ii) (defining “terrorist activity”).

³³ Specifically, the court refused to review the Secretary’s findings under something akin to the “substantial evidence” standard of the Administrative Procedure Act. 182 F.3d at 24 n.8 (“Section 1189(b)(3), although generally parroting the language of the Administrative Procedure Act, modified the ‘subs tan tial evidence’ standard of 5 U.S.C. § 706(2)(E) to say instead ‘substantial support’ Perhaps this was in recognition of the decision of this court that whenever a statute requires the agency action to be supported by ‘substantial evidence’—a term of art in administrative law—there must be some sort of adversary, adjudicative-type procedures’ before the agency. Mobil Oil Corp. v. FPC, 157 U.S. App. D.C., 235, 483 F.2d 1238, 1259 (D.C. Cir. 1973).”).

⁵⁴ Id. at 24. The court also stated that “any one of the incidents attributed to the LTTE and to the [PMO] would have sufficed under the statute.” Id. at 24–25.

³⁵ Id. at 19.

³⁶ 8 U.S.C. §1189(b)(3).

³⁷ 182 F.3d at 25 (emphasis added).

³⁸ Id.

³⁹ The court posits that Congress’s use of the phrase “substantial support” rather than “substantial evidence” lends support to the court’s interpretation of its role. Id. at 24 n.8. This distinction is arguably illusory, however, and, at the very least, the court reads too much into the phrases. Federal courts, including the D.C. Circuit, often use the phrase “substantial support” when reviewing agency action under the “substantial evidence” standard. See, e.g., Wackenhut Corp. v. NLRB, 178 F.3d 543, 556 (D.C. Cir. 1999).

⁴⁰ Mistretta v. United States, 488 U.S. 361, 407 (1989).

⁴¹ See Ruth Wedgwood, Responding to Terrorism: The Strikes Against Bin Laden, 24 Yale J. Int’l L. 559, 561 (1999) (noting that this approach is central to U.S. antiterrorism policy).

⁴² See Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 UST 1643, 860 UNTS 105; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 UST 565, 974 UNTS 177; Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 14, 1973, 28 UST 1975, 1035 UNTS 167; International Convention Against the Taking of Hostages, Dec. 17, 1979, T.I.A.S. No. 11081, reprinted in 19 ILM 33; International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatmentor Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 UNTS 85.