Brushing the Dust off a Court Ruling

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) 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. 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.

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