The court also noted that "[b]ecause nothing in the legislation restricts the Secretary
from acting on the basis of third hand accounts, press stories, material on
the Internet or other hearsay regarding the organization's activities, the 'administrative
record' may consist of little else." 58 At the end of its opinion, the court
revealed just how uncomfortable it was with section 1189:
We reach no judgment whatsoever regarding whether the material before the Secretary
is or is not true. As we wrote earlier, the record consists entirely of hearsay,
none of it was ever subjected to adversary testing, and there was no
opportunity for counter-evidence by the organizations affected.... Her conclusion
might be mistaken, but that depends on the quality of the information in the
reports she received-something we have no way of judging.59
These concerns colored the court's decision in National Council of Resistance
of Iran v. Department of State ("NCR"').60 In that case, the court reviewed
the designation of the National Council of Resistance of Iran ("NCRI"),
which the Secretary of State found to be an alias of the PMOI during its 1999
redesignation as a terrorist organization. 61 The court held that the Secretary of
State had substantial support for her finding that the NCRI was an alias of the
PMOI and, therefore, the NCRI was a terrorist organization because the PMOI
had been so designated.62 Unlike in PMOI I, however, the court addressed the
NCRI's procedural due process claim. Since the NCRI had a small bank account
in the United States, the court held that the NCRI had developed a substantial
enough connection in the country to receive procedural due process
rights.63 Moreover, since the NCRI and the PMOI were the same organization,
the court held that the PMOI had also established a substantial connection in the
United States. 64 Next, the court held that the NCRI's small bank account was a
cognizable property interest under the Due Process Clause.6 5
The court then applied the Mathews test to determine when process was
due to the NCRI. First, the court examined the private interest that would be
affected by the designation. Relying on United States v. James Daniel Good
Real Property,66 in which the Supreme Court required notice and a hearing
before the civil forfeiture of a home allegedly involved in a drug crime, the
Secretary of State argued that, comparatively, the NCRI's bank account was not
a weighty property interest. 67