Additionally, due to "the changeable and explosive nature of contemporary international
relations" and the executive branch's ability to quickly gather and
process foreign intelligence, "Congress-in giving the Executive authority over
matters of foreign affairs-must of necessity paint with a brush broader than
that it customarily wields in domestic areas."' 38 On its face, section 1189 does
not seem to create a high probability of a random or arbitrary deprivation. For
example, the Secretary of State cannot designate as terrorist either a domestic
organization, even if it is engaged in terrorism threatening the national security,
or a foreign organization engaging in terrorist activity, if that activity does not
threaten the security of the United States or its nationals. It is also true that the
Secretary of State does not have a direct pecuniary interest in the designation, as
the designated organization's assets are frozen, not seized by the government.
The risk of an erroneous deprivation comes not from the statutory criteria,
but instead from the lack of a notice and hearing requirement in section 1189.
Organizations affected by the designations have no opportunity to present their
own evidence rebutting the Secretary of State's findings on the statutory criteria
and the statute does not direct the Secretary to consider exculpatory evidence. 2 39
This results in the type of one-sided determination denounced by Justice Frankfurter.
2 40 Further, the determination is based on a wide variety of foreign relations
and intelligence information, rather than a limited amount of specific
evidence. Since the Secretary of State's finding that an organization represents
a national security threat is nonjusticiable, 24t the inability of a designated organization
to present evidence on its behalf forecloses any possibility of challenging
the evidence in support of that finding. The lack of any direct notice 242 or hearing
for a designated organization, either before or after its designation, greatly
increases the risk of an erroneous deprivation, because the Secretary of State is
not compelled to consider the sufficiency of his or her evidence in an adversarial
manner. 2 3 Were the Secretary of State to err in a designation, there is a high
probability that the error would remain uncorrected.