March 25, 2017

State Department comes under criticism at D.C. Circuit hearing

THE NATIONAL LAW JOURNAL

A federal appeals court in Washington appears poised to rule against the U.S. State Department in a dispute over the continued designation of a fringe Iranian resistance group as a foreign terrorist organization.

The U.S. Court of Appeals for the D.C. Circuit has a number of options available to it, including ordering the government to remove the People’s Mojahedin Organization of Iran from the foreign terrorist list or setting a deadline for the government to act on the petition from the group. The court could take a middle ground, requiring the government to provide reports on the status of the ongoing assessment.

The Justice Department’s Robert Loeb, arguing for the State Department, asked a three-judge panel May 8 to outright deny the delisting petition, arguing that the government continues to collect valuable information for its review of the PMOI’s designation. The government, Loeb said, has not determined whether PMOI no longer has the intent and capacity to engage in terrorist activity even though the group claims it has renounced violence.

Judge David Tatel and Senior Judge Stephen Williams of the D.C. Circuit seemed inclined to rule for the PMOI, represented by a team from the law firms Bancroft and Mayer Brown. Tatel noted in court that a decision forcing the State Department to act could end up in a denial of the Iranian group’s petition for removal from the foreign terrorist organization list. A lawyer for PMOI, Viet Dinh of Bancroft, said a denial is better than no action at all because it allows a follow-up challenge.

Top administration officials — including Harold Koh, the State Department legal adviser, and Beth Brinkmann, a senior Civil Division appellate lawyer at Main Justice — attended the hour-long hearing. More than 80 observers, including many advocates for the PMOI, crammed into a courtroom in the E. Barett Prettyman U.S. Courthouse in downtown Washington.

At issue in the dispute is whether the State Department has ignored a D.C. Circuit’s order in 2010 directing the government to reassess the designation. The appeals court then sided with PMOI, saying the State Department did not accord certain due process rights to the group. The D.C. Circuit did not, however, give the government a deadline to make a decision one way or the other.

Lawyers for the PMOI earlier this year filed court papers in the D.C. Circuit asking the court to delist the group as a foreign terrorist organization or to give the State Department one month to make a decision on the petition. Advocates for the PMOI then, as they did today, expressed frustration at the slow pace of the State Department review.

Inclusion on the foreign terrorist organization list caries severe consequences. Supporters in the United States, for instance, cannot directly fund the group. And banks are authorized to freeze assets of foreign terrorist groups.

In court today, Dinh told the D.C. Circuit panel that the State Department has shown its indifference to the earlier appellate court order in the case. Dinh urged the court to hold the government accountable.

Henderson defended the State Department during one exchange with Dinh, saying that “it’s not as if they’re just sitting on their hands.”

The PMOI review, Loeb maintained, is ongoing in good faith and should not be cut short. Government officials, he said, are regularly receiving information regarding the movement of PMOI members and supporters from a camp in Iraq that he described as a “paramilitary base.” (PMOI lawyers dispute that characterization.)

The continued cooperation in the relocation effort, Loeb said, will “speak volumes” as to whether PMOI no longer has the intent and capacity to commit terrorist acts. Loeb said the government has not had a chance to inspect the base for arms.

Tatel asked twice why the State Department doesn’t just deny the PMOI petition. At least a denial, the judge said, would allow the appellate process to move forward. “As long as the secretary isn’t acting, that process can’t go forward,” the judge said.

Asked how much more time the State Department needs, Loeb declined to speculate. The government, he said, would aim to make a decision on the PMOI petition within 60 days of the final relocation of people from the camp in Iraq. But the move of residents from the camp is months from being final, Williams noted.

Tatel disputed Loeb’s assessment of the State Department review as a “minor delay,” saying that the appeals court ordered the agency to review the foreign terrorist organization designation nearly two years ago.

Loeb said in court “this is not a rolling process that will go on forever.” The State Department, he said, has a “duty to the public to get it right.”

The appeals court did not immediately rule this morning.

Contact Mike Scarcella at mscarcella@alm.com.

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