Designation of Foreign Terrorist Organizations under the AEDPA: The National Council Court Erred in Requiring Pre-Designation Process
Ellis, Joshua A., Brigham Young University Law Review
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
Designation of an entity under the AEDPA as a foreign terrorist organization represents one of those "`extraordinary situations' that
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.
Part II of this Note discusses the designation provisions of the AEDPA. Part III reviews current procedural due process jurisprudence. Part IV discusses the case law with respect to due process challenges of the designation provisions of the AEDPA. Part V is divided into two primary sections, one discussing the timing of due process and the other discussing the content of due process in light of the AEDPA and the facts of National Council. This Note concludes in Part VI that the United States Court of Appeals for the District of Columbia should reevaluate its holding in National Council and find that providing post-designation process to putative terrorist organizations with financial assets in the United States does not violate the Due Process Clause.
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. …