The Mathews test governs whether the Secretary of State can use classified
information to make a designation without disclosure to the designated organization.
351 As mentioned above, this is true even after Dusenbery, which did not change the application of the Mathews test to the adequacy of hearing procedures.
352 The first Mathews factor weighs the private interest. 353 As discussed
above,354 the weight of the private interest involved in a designation under section
1189 depends on the factual circumstances of a particular designation. The
property interest of a designated organization could vary from a $200 bank account
to millions of dollars in assets. Its liberty interests, such as its right to
solicit contributions or its members' right to travel and First Amendment right to
make contributions, could be substantial.
Turning to the second Mathews factor, the risk of an erroneous deprivation
in this situation appears high.356 The "hallmark of the adversary system"
is that parties have access to the evidence used against them, because
"[t]he openness of judicial proceedings serves to preserve both the appearance
and the reality of fairness in the adjudications of United States courts." 357 "Use
of secret evidence," however, "creates a one-sided process by which the protections
of our adversarial system are rendered impotent," compelling parties to
"prove the negative in the face of anonymous 'slurs of unseen and unsworn
informers."'358 Preventing the disclosure of classified information means that
"there is no adversarial check on the quality of information" used against a
party.3 59 In Rafeedie v. INS, the Immigration and Naturalization Services
("INS") sought to exclude a resident alien who left the country from re-entry
because he allegedly belonged to various Palestinian terrorist groups. 360 The
court noted that