The D.C. Circuit crafted its approach to designations under section 1189 in
three cases. In People's Mojahedin Organization of Iran v. Department of State
("PMOI '), the court reviewed the Secretary of State's 1997 designation of the
People's Mojahedin Organization of Iran ("PMOI") and the Liberation Tigers of Tamil Eelam ("LITE") as terrorist organizations. 48 The Secretary of State
found that the LTTE, which seeks an independent Tamil homeland in Sri Lanka,
and the PMOI, which seeks the overthrow of the Iranian government, had committed
various terrorist activities, including some against Westerners and Americans.
4 9 The LTTE and PMOI argued that their designations violated their
procedural due process rights because they had not received pre-designation notice
and hearings. 5°
The court upheld the designations and made two important holdings. First,
the court held that the Due Process Clause did not apply to the LTTE and the
PMOI because they had no property or presence in the United States.5 ' Only
designated organizations that had voluntary, substantial connections with the
United States could mount a procedural due process challenge to their designations,
although organizations with no substantial connections could still contest
their designations as arbitrary and capricious. 52 Second, the court held that it
could not review the Secretary of State's finding that the terrorist activity of a
designated organization threatened the national security of the United States or
the security of its nationals. 53 The court reasoned that "it is beyond the judicial
function for a court to review foreign policy decisions of the Executive
Branch."54 Thus, the court decided that it could only review whether a designated
organization was a foreign organization engaged in terrorist activity. 55
The court then found that there was substantial support in the record for the
finding that the PMOI and LTTE were foreign organizations engaged in terrorist
activity.56
Despite its holdings, however, the court was clearly frustrated with the lack
of procedural safeguards to ensure the truth of the Secretary of State's findings.
Before describing the facts of the case, the court offered a disclaimer:
At this point in a judicial opinion, appellate courts often lay out the "facts." We
will not, cannot, do so in these cases. What follows in the next two subsections
may or may not be facts. The information recited is certainly not evidence of the
sort that would normally be received in court. It is instead material the Secretary
of State compiled as a record, from sources named and unnamed, the accuracy of
which we have no way of evaluating. 57