Designation of foreign terrorist organizations under the AEDPA: The National Council Court erred in requiring pre-designation process

Brigham Young University Law Review, 2002 by Ellis, Joshua A

I. INTRODUCTION

September 11 will forever evoke terrible memories of the death and destruction caused by coordinated terrorist attacks against the United States.1 Following the attacks, President Bush announced that "[t]here has been an act of war declared upon America by terrorists,"2 and we will respond by "direct[ing] every resource at our command, every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence, and every necessary weapon of war, to the disruption and to the defeat of the global terror network."3 An important weapon in this "war" against terrorism is the ability of the Secretary of State, under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA" or "Act"), to block all financial transactions involving the assets of foreign terrorist organizations in the United States, to prevent people from providing material support to foreign terrorist organizations, and to prohibit representatives of foreign terrorist organizations from entering the United States.4

justify postponing notice and opportunity for a hearing."5 If an organization received prior notice that it was being considered as a foreign terrorist organization, it would have an opportunity to immediately transfer all of its financial assets outside the jurisdiction of the United States, frustrating the intent of Congress and the foreign policy goals of the President.6 The United States Court of Appeals for the District of Columbia recently rejected this reasoning in National Council of Resistance of Iran v. Department of State ("National Council") and held that the Secretary of State ("Secretary") must afford putative terrorist organizations with due process prior to their designation under the AEDPA.7 The court also held that the Secretary must provide these organizations with notice of the basis of a designation and the opportunity to introduce rebuttal evidence into the record. A careful review of the AEDPA, current due process jurisprudence, and the facts of National Council will indicate that the court was incorrect in requiring pre-designation process.

II. DESIGNATION OF FOREIGN TERRORIST ORGANIZATIONS UNDER THE AEDPA

A. The Procedural Requirements of Designation

The Antiterrorism and Effective Death Penalty Act of 1996 authorizes the Secretary of State, in consultation with the Secretary of the Treasury and Attorney General,8 "to designate an organization as a foreign terrorist organization"9 upon finding that the organization meets certain statutorily defined criteria.10 The Secretary is required to compile an administrative record, which may include classified information,11 and base his findings upon the information gathered therein.12 Any classified information contained in the record need not be disclosed to a designated organization, but the "information may be disclosed to a court ex parte and in camera for purposes of judicial review."13 A designation made under the statute is effective for a period of two years, and the Secretary may redesignate the organization for another two-year period upon finding that the relevant circumstances on which the previous designation was based still exist.14

persons within or subject to the jurisdiction of the United States who "knowingly provide[] material support" to the organization, or attempt or conspire to do so, are subject to fines and imprisonment.18 All financial institutions that do not maintain control over and report to the Secretary the existence of any foreign terrorist organization funds are also subject to severe fines.19 In addition, alien representatives and members of the designated foreign terrorist organization are ineligible for visas or admission into the United States.20

B. The Definition of a Foreign Terrorist Organization

As mentioned above, the AEDPA authorizes the Secretary to designate an organization as a foreign terrorist organization; however, before making a designation, the Secretary must find that an organization meets three statutorily defined criteria: (1) the organization must be a "foreign" organization;21 (2) the organization must "engage[] in terrorist activity";22 and (3) the organization's terrorist activity or terrorism must "threaten[] the security of United States nationals or the national security of the United States."23 Each of these criteria will be discussed in detail below.

1. The organization must be a 'foreign" organization

"foreign organization." Indeed, nowhere in the United States Code is the term "foreign organization" defined.26 While such an inquiry may seem trivial, it is a legitimate ground on which an organization designated under the AEDPA may challenge the designation.

government will not include an organization, corporation, or association organized under the laws of the United States within its definition of a "foreign organization" for purposes of the AEDPA, even if such an organization, corporation, or association is substantially controlled, owned, dominated, or sponsored by a foreign organization or government. In light of the recent terrorist attacks against the United States, the government may become more willing to include a domestic organization within a designation if the organization is sponsored or controlled by a foreign terrorist organization; however, recent designations indicate a continued policy of interpreting "foreign organization" narrowly.32