Bahar Irani

Subsequent to the ruling of the U.S. Court of Appeals demanding the State Department to review designation of Mojahedin Khalq Organization (MKO, MEK, PMOI, NCR, NLA) and the move by a variety of its advocates to provide material support to the terrorist group, some have speculated about the possibility of the removal of MKO from the State Department’s terrorist list. But the seriousness of the subject requires focusing on the terrorism as a general concern rather than a certain case in the context. Thus, before any further speculation, one should have at least a basic understanding of what necessitated the approbation and introduction of the terrorist lists with an emphasis to have a basic analysis of the terms ‘terrorist crimes’ and ‘terrorist behavior’.

Designation of groups on terrorist lists plays a critical role in the global fight against terrorism and is an effective means of curtailing support for terrorist activities and pressuring groups to change their violent attitude and abandon terrorism. However, the terrorist lists have to be inevitably challenged, because there are entities that for some reason are removed or not designated at all. Regardless of many states that have prepared and keep a record of terrorist groups that believe have threatened the security of their territories, two top all others and are of greater importance, the State Department and the EU’s. There are groups that, because of their globally threatening violence, some states reach a consensus to designate while in some cases there is a difference of opinion. These lists are every few years or sometimes annually reviewed and revised and published for the public. But what facts and reason contribute to remove a name from some list is a matter of idealized ends that fit the policy of that state and government.

As a case at hand to be pointed out, MKO is one of those proscribed groups on the EU and the UK’s list that has been removed, although there are unfulfilled expectations to be removed from the State Department’s list as well. The fact is that this act of proscription and de-proscription of an active terrorist group in itself, regardless of the contradictions about ways to combat terrorism, fails to be grounded on objective and rational effectiveness with regard to global sensitivity. In the case of MKO, while the initial consensus was to designate it as a terrorist group that met defined criteria of terrorism, the subsequent decisions of the EU and the UK to de-proscribe it contains some contradictions and paradoxes for which they must provide convincing answers.

MKO has recurrently claimed that its inclusion in the terrorist lists has been the result a political bargain with the Islamic Republic regime. The claim proves groundless since we see that the State Department condemns the Islamic Republic of sponsoring terrorism alongside putting its opposition on its list. As there are many other countries that despite their semi-adversarial position against the Islamic Republic and dispute over Iran’s nuclear issue, continue to recognize MKO a terrorist group. However, the arbitrary use of terrorist lists and using them as a political lever for imposing political demands against a country contradicts the effectiveness of war against terrorism while the terrorist nature of a group like MKO is generally agreed on. Looking at it from this perspective, perhaps the legitimacy of all terrorist lists of the Western countries can be openly questioned, for any tottering policy in fight against terrorism will embolden terrorists to impose double costs.

There are also groups that are engaged in extreme apolitical crimes but are not designated terrorist groups mainly because they fail to be recognized a threat against the states. Their unlawful use of force and violence against persons or property in order to coerce or intimidate the civilian population in furtherance of social objectives categorizes them as criminals but never as terrorists. Mafia and trafficking networks that are specifically active in some South American countries can be the best example of these undesignated terrorist groups. Apparently, what is important for the governments to designate major terrorist groups is grounded on political ends and interests rather than the atrocities perpetrated against the civilians who are the real and direct targets of terrorists. However, the organizers of the terrorist lists do not feel any responsibility to recognize these criminals whose nightmare shadows a whole society. When the EU removed MKO from its terrorist list, it chiefly evidenced that the group had stopped its terrorist operation since 2001, as pronounced and defended by the group itself. It means that the Europe Union acquitted MKO of all its terrorist crimes and atrocities committed before the claimed date and ordered its name to be removed from the list. From this perspective, the EU’s ruling is devoid of due legitimacy as it has thoroughly disregarded the rights of all those victims of the group’s terrorist atrocities whose legal cases are open and in process before a variety of courts of laws. This ruling can also mean that the EU has granted the terrorist MKO a political legitimacy.

The third keyword that regardless of any political expediency prove or deny inborn terrorism is terrorist behavior. Terrorist behavior can be interpreted as resorting to a willful use of violence for strategic and political reasons and a group preferably selects terrorism as a course of action from among a range of perceived alternatives. It is a choice both for the some states or certain groups when they find terrorism useful. That is, a state or certain group/s in opposition to a government resort to terrorist deeds as reasonable choices.

Among instances of states about whom there was a global consensus was the ousted Iraqi Saddam. Now, if the international community for certain considerations voted that Saddam’s government was not a terrorist in row, did it really make any difference to the nature of his government? Saddam’s administration was recognized a terrorist state because of its countless internal and external terrorist assassinations and discovered mass graves. Or it was terrorist operations of September 11 and many of other terrorist behaviors of Al-Qaeda rather than inflicting financial loses and human casualties on the US administration that led it on the top of the terrorist lists. As it is also the case with MKO; it has accepted responsibility of twelve thousand lives and victims of terror, tens of recorded blasts and blind suicide and mortar attacks as well as numerous other acts of intimidation and instigation of public disturbances that led it to be recognized a terrorist organization not its inclusion in the EU or the UK lists of terror. It occupied a terrorist position not purely for political concerns but because it met all patterns of a violent, terrorist group with undeniable and available evidences before the eyes of the world.

What led to designation of MKO as a terrorists group are the existing several hundred handicapped and disabled citizens who are forced on the shoulders of their families or those whose loved ones, without any distinct political reason and as the direct targets of the terrorists’ blind operations, political lost their lives. Interestingly, despite all made claims that MKO has already abandoned armed and violent methods, a ploy that caused to be brought off the EU list, still it insists on the accuracy of its adopted armed strategy and waging terrorism and violence in the public to triumph. The focal point here is that it is not the status of a terrorist group like MKO on a terrorist list that calls for its recognition but the amount of its perpetrated atrocities including the actual acts, the perpetrators of acts of terror themselves and their motives in the past, present and future. Though there are states that consider MKO a terrorist group and are decisive in their decision, but the existing problem is lack of a general consensus on the definition of terrorist behavior first and in the next step, arriving at a universal consensus that may boost the legitimacy and importance of all terrorist lists and defend them against any challenge.

As already predicted, triumphalism was the order of MKO media and propaganda machine for nearly two weeks since the U.S. Court of Appeals for the D.C. Circuit ruled that the State Department review designation of Mojahedin Khalq Organization (MKO, MEK, PMOI, NCR, NLA) as a foreign terrorist organization. This was not MKO displaying itself as the winner of a petition but a terrorist organization shaking its fist at the world. However, now the cloud of the triumph subsided and anything returning to normal, it is time to have a review of the ruling to dig out the facts MKO were trying to bury under the heavy cloud of disturbing the usual pattern of events. Although improbable to be removed from the terror list, as the ruling has nothing to do with the issue, there are points in the ruling indicating that the State Department insists on the accuracy of its decision makings.

It has to be pointed out that the case in the question is not the first but the fourth through which MKO is challenging its designation as a FTO and bringing it before the court. And the State Department’s response in all the last threes has been nothing but to re-designate it, as it will be probably with this last one. Let’s see what remarkable points the organization has noticed specified in the ruling that may signify a triumph for it.

1. Stated in per curiam, it affirms that “This case is the fifth in a series of related actions challenging the United States Secretary of State’s designation of the Mojahedin-e Khalq Organization (MEK) and its aliases as a Foreign Terrorist Organization (FTO). The MEK, also called the People’s Mojahedin Organization of Iran (PMOI), has challenged its FTO status before this court three times”. Accordingly, the organizations attempts so far has proved unproductive against the State Department’s reasonable evidences.

2. MKO’s provided evidences to defend itself against the charges have been piles of letters of recommendations from its lobby in the Congress and other European parliamentarians. Asserted in the ruling, the State Department’s decision to keep MKO on the list as a FTO relies on sound classified and unclassified information. “The PMOI also thrice supplemented its petition with additional information and letters in support from members of the U.S. Congress, members of the UK and European parliaments and retired members of the U.S. military, among others. After reviewing an administrative record consisting of both classified and unclassified information, the Secretary denied the PMOI’s petition and published its denial in the Federal Register on January 12, 2009. She also provided the PMOI with a heavily redacted 20-page administrative summary of State’s review of the record, which summary referred to 33 exhibits, many of which were also heavily or entirely redacted.”

3. The court upholds that the Secretary resolved to designate MKO based on sound records and evidences. “We are to uphold the Secretary’s determination unless it “lack[s] substantial support in the administrative record taken as a whole or in classified information submitted to the court.”
4. The court asserts that in all his/her previous responses, the Secretary has shown no satisfaction that the organization has permanently renounced terrorism and that, it might resume such activities in future. “In my view, (Karen LeCraft Henderson, Circuit Judge) the classified portion of the administrative record provides “substantial support” for her determination that the PMOI either continues to engage in terrorism or terrorist activity or retains the capability and intent to do so and, consequently, for her denial of the PMOI’s revocation petition.”

5. The State Department in its explanations for keeping MKO on the list argues that there is no evidence to confirm that the organization has permanently renounced terrorism since its present circumstances are the same as the previous. The State Department relies on sound facts rather than claims. “To seek revocation, an FTO “must provide evidence in that petition that the relevant circumstances . . . are sufficiently different from the circumstances that were the basis for the designation such that a revocation with respect to the organization is warranted.”

It adds that “While the Secretary may revoke a designation at any time, the statute directs that she shall revoke a designation if she finds that either “the circumstances that were the basis for the designation have changed in such a manner as to warrant revocation,” or “the national security of the United States warrants a revocation,” She wrote that “in considering the evidence as a whole, the MEK has not shown that the relevant circumstances are sufficiently different from the circumstances that were the basis for the 2003re-designation,” and that “[a]s a consequence, the MEK continues to be a foreign organization that engages in terrorist activity . . . or terrorism . . . or retains the capability and intent to” do so.

Accordingly, America has concluded that in spite of the cease of open military operations and the voluntary surrender of arsenal and weapons to the occupying forces in Iraq, MKO does not seem to have adopted a total non-aggressive attitude. The militarism potentiality submits that the continued proscription of MKO has not been unjustified.

6. The ruling admits that “although the Secretary must give the PMOI an opportunity to rebut the unclassified material on which she relies, AEDPA does not allow access to the classified record as it makes clear that classified material “shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review.”

It indicates that the US has a comprehensive understanding of MKO compared to other designated organizations. Naturally, classified information include sensitive compartmented information and special access data and are to be used by government departments and agencies if deemed necessary. Disclosure of these information in the presence of an ineligible terrorist organization increases the risk of an unauthorized disclosure of classified information that puts terrorists in full alert.

However, the court requires that MKO be notified of only unclassified information: “In short, we have held due process requires that the PMOI be notified of the unclassified material on which the Secretary proposes to rely and an opportunity to respond to that material before its redesignation; nothing in the amended statute suggests that this protection is any less necessary in the revocation context.”

MKO is well aware that the only probable, granted chance before it is to refute unclassified information or to ask for further opportunity to provide justifications to prolong the process. “And even though the PMOI was given the opportunity to include in the record its own evidence supporting delisting, it had no opportunity to rebut the unclassified portion of the record the Secretary was compiling—an omission, the PMOI argues, that deprived it of the due process protections detailed in our previous decisions.”

The ruling concludes that because of the foreign policy and national security concerns it leaves the designation in place: “As we noted in NCRI I, “[w]e recognize that a strict and immediate application of the principles of law which we have set forth herein could be taken to require a revocation of the designation[] before us[, but] . . . we also recognize the realities of the foreign policy and national security concerns asserted by the Secretary in support of th[e] designation.” 251 F.3d at 209. We thus leave the designation in place but remand with instructions to the Secretary to provide the PMOI the opportunity to review and rebut the unclassified portions of the record on which she relied.”

Consequently, what MKO is trumpeting as a ruling of being removed from the terrorist list is nothing but an urge by the court requiring the State Department to grant MKO an opportunity to defend itself against unclassified information, an opportunity already granted. The court has judicial responsibilities to fulfill, as it will be also held accountable for the consequences of unleashing a terrorist organization. It is complying with all regulations that struggle to diminish the nightmare of terrorist threats that has jeopardized the national security since 9/11.