UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

YASSIN ABDULLAH KADI, P laintif f,
v. Civil Action No. 09-0108 (JD B) TIMOTHY GEITHNER, et al., 1 Defendan ts.

MEMORAN DUM OP INION This case , broug ht by

Yassin Abdullah Ka di, a citizen and per manent re sident of Saudi 2 Ara bia, involves a c halleng e to the dec ision of the Offic e of F oreig n Assets Control ("O FAC" ) to desig nate him as a

"spe cially

desig nated g lobal terror ist ("SDGT" ). Prese ntly pendingare (1) defe ndants' motion to di smiss or, in the alternative, f or summary

judgme nt; (2) Kadi' s motion 3 for discove ry

under F ed. R. Civ. P. 56(f); and (3) Kadi' s motion t o amend his complaint. F or the

rea sons that follow, the Court will gra nt defe ndants' motion for summary judgme nt, deny

Kadi' s motion for discovery

under Rule 56( f), a

nd deny Kadi' s motion t o amend the c omplaint. Pursuant to Fed. R. Civ. P. 25, Timot hy Geithner , the cur

rent Sec reta

ry of the U.S. 1 Depa rtment of the Tr easur

y , has bee n substitut ed for Henr y Paulson, who was the Sec reta ry when this action was filed. In the administrative re cord, pla intiff Kadi is addre ssed as " Al-Qa di." De pendingon the 2 context, thi s Memorandum Opinion uses both spelling s intercha ng eably . Moreove r, the administrative re cord is re plete with alter nate spe llings of va

rious individuals and org anizations. For simpli city , and whe re not other wise indicate d, the Court has attempted to be consistent in the spelling of

cer tain entities and individuals, even with re fer ence s contained in dire ct quotations or citations. Kadi lodg es his complaint ag ainst defe ndants Geithner , Adam J. S zubin, i n his official 3 capa city as Dire ctor of O FAC, the U .S. Depar tment of the Tre asury , and OF AC. The Court will ref er to the de fenda

nts collectively

as " the Gover

nment."BACK GR OUND

I. Statutory and Regulatory Background The listing of

SDGTs is gove rned by

the International Emerg ency Economic Power s Act, 50 U.S.C. § 1701 et seq. (" I EEPA") , and Executive Orde r 13,224 (66 F ed. Reg . 49,079 (Sept. 23, 2001)) ( "E O 13,224" ). I EEPA "a uthorizes the President to declar e a na tional emerg ency

when a n extraordinary

threat to the United States arises that or iginates in substantial part in a for eig n state." Holy

L and F ound. v. Ashcrof

t, 333 F.3d 156, 159 (D .C. Cir. 2003). Such a dec laration provides the Pre sident with ex tensive authority set forth in 50 U.S.C. § 1702, which per mits t he President to block prope rty subject to the jurisdiction of the United States. Spec ifically , the President is authorized to:

investigate, block duringthe pende ncy of an inve stigation, regulate, dire ct and c ompel, nullify , void, preve nt or prohibit, any acquisition, holding, withholding , use, transf er, w ithdrawa l, transportation, importation or ex portation of, or de aling in, or exercisingany

rig ht, power, or

privileg e with re spect to, or transac tions invol ving, a

ny proper ty in which any

fore ign c ountry or a national thereof

has any interest by

any person, or

with respec t to any proper ty , subject to the jurisdiction of the United States . . . . 50 U.S.C. § 1702(a)(1) (B ). I EEPA further provides that, in the eve nt of " judicial revie w of a deter mination made under

this section, if the deter

mination was based on c lassified information . . . such information may be submitted to the review ing c ourt ex parte and in c amer a." I d. § 1702(c)

. After September 11, 2001, the President issued EO 13,224 invokinghis authority under I EEPA and the United N ations Participation Act, 22 U.S.C. § 287c. The E x ecutive O rder decla red a "national emerg ency " w ith respec t to "g rave acts of te rror ism and threats of te rror ism

2committed by fore ign te rror ists, including the ter rorist attac ks . . . committed on September 11, 2001, . . . and the c ontinuing and immediate threat of furthe r attac ks on United States nationals or the United States." I d. EO 13,224 orde red the blockingof prope rty of twenty-seve n specific terror ists and terror ist orga nizations identified in an Anne x . I d. § 3. The Sec reta ry of the Trea sury is authorized to designate additional per sons whose prope rty or intere sts in property should be blocked, where the Secr etar y finds that such per sons "a ct for or on behalf of" or ar e "owned or c ontrolled by " de signated terr orists, or they "a ssist i n, sponsor, or provide . . . support for" (including"f

inancial . . . support" or " financ ial . . . service s") or ar e " otherwise a ssociated with" them. I d. §§ 1(c) -(d) . The Sec reta ry has dele g ated his authorities unde r the Executive Orde r to the Dire ctor of O FAC. 31 C.F.R. § 594.802. Persons de signated pursuant to the Ex ecutive O rder

are ref err ed to as " specia lly

desig nated g lobal terror ists" (SDGT) . See 31 C.F.R. § 594.310. II. P roce dural Hi story and Design ation 4 Kadi is a c itiz en and pe rmane nt resident of Saudi Ar abia a nd a self- descr ibed " prominent Saudi Arabia

n businessman and philanthropist." Compl. ¶ 1; AR 94. On October 12, 2001, OFA C designated Kadi a SDGT pursuant to the I I EPA and EO 13,224, Compl. ¶ 20, which, by operation of law, re sulted in the blocking of all of his prope rty and intere sts in property

subject to the jurisdiction of the United States. It is undisput ed that OF AC did not give notice to Kadi befor e blockinghis assets. The de signation was made known to Kadi and to the public through a press re lease instructing f inancial institutions t o fre eze Kadi' s assets. Compl. ¶ 20; AR 123-26.

The fa cts are drawn from Ka di's c omplaint, the unclassified plea dings, a nd the 4 unclassified a dminist rative r ecor d. Citations t o the administrative re cord a re to the unc lassified administrative re cord, which is cited as " AR". 3A pre ss relea se wa s also issued by authorities in the United King dom. Compl . ¶ 20. B y letter dated Oc tober 15, 2001, OF AC also mailed Kadi a "N otice of B locking " pr oviding dire ct notice of the de signation and blockingand advisinghim of the administrative proc edure s available to challeng e OF AC' s action. AR 2784-85. Notice of the desig nation was a lso published on October 26, 2001 in the Fe dera l Reg ister. See 66 F ed. Reg . 54404 (Oc t. 26, 2001). Kadi ther eaf

ter soug ht judicial reviewin the Hig h Court in L ondon. Compl. ¶¶ 22-23. In response to a re quest for infor mation by the United King dom, the United States Tre asury Depa rtment faxed a two- pag e docume nt to United Kingdom of ficials in Octobe r 2001 (" two-pag e fax"), which Kadi lea

rned a bout during his court proc eeding s in L ondon. Compl. ¶ 24. Kadi place s much emphasis on this two-pag e fax , which summarized unclassifie d information re lating to Kadi' s financia l support of terr orist activities throug h a cha ritable org anization known as the Muwafa q Founda

tion and his other ties to terror ists and terror ism financing . AR 39-40. Kadi claims that around Ma

y 23, 2002, he met with OF AC staff at the U.S. Embassy in Saudi Arabia, wher e OF AC denied knowle dg e of the two-pag e fax . Compl. ¶ 25. However , there is no dispute that Kadi re ceive d a copy of the two-pa g e fax , revie wed it, and pr ocee ded to re fute various conte ntions as part of his petition for re consideration. See Compl. ¶ 29. Kadi petitioned OF AC for re consideration on Dece mber 21, 2001. AR 23. In the months and y ear s therea fter, he has submitted severa l witness statements and other materia ls in support of his petition and has eng ag ed in a se ries of e x chang es with OF AC. On Marc h 12, 2004, OFA C issued a twenty -pag e uncla ssified memorandum de nying K adi' s reque st for re consideration (" OFA C Memorandum" ). Compl. ¶ 30. AR 3-40. Kadi maintains that this is the only formal written statement he has re ceive d from the United States g overnme nt. Compl. ¶ 31. Base d on

4these e vents, Kadi filed this ac tion on J anuar y 16, 2009, challeng ing the evidentiar y basis for his desig nation and the f

ree zing of his assets, a

nd raisingan ar

ray of constitutional claims. Specifica lly , he cla ims viol ations under the A dminist rative Proc edure Act, 5 U.S.C. § 701 et seq., the I EEPA, and the F irst, Fourth, a nd Fifth Ame ndments. On May 22, 2009, defe ndants filed a motion to di smiss or, in the alternative, f or summary

judgme nt. Kadi opposes the motion and seeks discove ry

under Rule 56( f). Ka di also seeks lea ve to file a

n amende d complaint. The Court hear d argument with respec t to the pending motions on April 9, 2010, and therea fter reque sted supplemental brie fing , which has nowbeen c ompleted. 5 STANDARD OF REVIEW All that the Fe dera l Rules of Civil Procedur e re quire of a complaint is that it contain "' a short and plain stateme nt of the cla im showing that the ple ader is entitled to relief,' in order to

' g ive the def

endant f air notice of what the . . . claim is and the g rounds upon which it re sts.'" Be ll Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quotingConley v. Gibson, 355 U.S. 41, 47 (1957)) ; acc ord Eric kson v. Pardus, 551 U.S. 89, 93 (2007) (pe r cur iam). Althoug h "de tailed fac tual alleg ations" a

re not ne cessa

ry to withstand a Rule 12(b)( 6) motion to dism iss, to provide the " g rounds" of " entitle[m ent] to relief," a plaintiff must furnish " more than la bels and conclusions" or " a for

mulaic re citation of the e lements of a c ause of action." Twombly , 550 U.S. at 555-56; see also Papasan v. A llain, 478 U.S. 265, 286 (1986). " To survive a motion to dismiss , a complaint must contain suffic ient fac tual matter, a cce pted as true , to 'state a c laim to

On J une 25, 2009, Ka di moved to prec lude the Gove rnment fr om relying on a ny 5 evidenc e that wa s not provided to Kadi, includingclassified infor mation that was par

t of the administrative re cord. Tha t motion was denied by

this Court on March 30, 2010. See O rder , ECF No. 39. 5relief

that is plausible on its face.' " A shcrof t v. I qbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly , 550 U.S. at 570); ac cord A therton v. District of Columbia Off ice of the Mayor, 567 F.3d 672, 681 ( D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff ple ads fac tual content that allows the c ourt to draw the rea sonable infe renc e that the de fenda nt is li able for the misconduc t alleg ed." I qbal, 129 S. Ct. at 1949. This amounts t o a " two-prong ed approa ch" under which a c ourt first identifies the f actua l alleg ations entitled to an assumption of truth and then de termines " whether they plausibly g ive rise to an e ntitlement to relief." I d. at 1950-51. The notice pleadingrules ar e not meant to impose a grea t burden on a

plaintiff. Dura Pharm., Inc. v. B roudo, 544 U.S. 336, 347 (2005); see also Swierkiewic z v. S orema N.A., 534 U.S. 506, 512-13 (2002). When the suf ficienc y of a c omplaint is challeng ed by a motion to dismiss under Rule 12( b)(6) , the plaintiff' s fac tual alleg ations must be presumed true and should be libera lly

construed in his or he r fa vor. L eathe rman v. Ta

rra nt Cnty . Nar cotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phill ips v. Bure au of Prisons, 591 F.2d 966, 968 ( D.C. Cir. 1979); see a lso Erickson, 551 U.S. at 94 (c iting Twombly , 550 U.S. at 555-56). The plaintiff must be g iven eve ry

favor able infe renc e that may be dra wn from the a lleg ations of fa ct. Scheue r v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air L ines, Inc., 216 F .3d 1111, 1113 (D.C. Cir. 2000). Howe ver, " the cour t need not ac cept infe renc es dra wn by plaintiffs if such infere nces a

re unsuppor

ted by the fa cts set out in the complaint." K owal v. MCICommc'ns Corp., 16 F.3d 1271, 1276 ( D.C. Cir. 1994). Nor doe s the court a cce pt "a leg al conc lusion couche d as a f

actua l alleg ation," or

"na ked asse rtions [ of unlawf ul misconduct] devoid of further fac tual enhanc ement." I qbal, 129 S. Ct. at 1949-50 (internal quotation mar ks omitt ed); see also

6Aktieselskabe t AF 21. Nove mber 21 v. F ame Jeans Inc., 525 F .3d 8, 17 n.4 (D.C. Cir. 2008)

(explaining that the c ourt has " never acc epted leg al conc lusions cast in the form of f actua l alleg ations")

. Under Fe d. R. Civ. P . 56(a) , summary judgme nt is appropriate when the ple ading s and the evidenc e demonstrate that " there is no ge nuine dispute as to any materia l fac t and the movant is entitled to judgment as a matter of la

w." I d. In a ca se involving r eview of a fina l ag ency action under

the Administrative Proce dure A ct, 5 U.S.C. § 706, however , the standar d set forth in Rule 56(a) does not apply beca use of the limited role of

a cour t in reviewingthe administrative

rec ord. See N at' l Wi lderne ss I nst. v. United States Army Corps of Eng ' rs, 2005 WL691775, *7 (D.D.C. 2005); F und for Animals v. B abbitt, 903 F. Supp. 96, 105 (D.D.C. 1995), a mended on other g rounds, 967 F. Supp. 2d 6 (D .D.C. 1997). Under the APA, it is the role of the a g ency to resolve f actua l issues to arrive at a dec ision that is s upported by the administrative re cord, wher eas " the func tion of the district court is to determine w hether or not as a matter of law

the evidenc e in the administrative r ecor d permitted the a g ency to make the de cision it did." See Occ idental Eng ' g Co. v. I NS, 753 F.2d 766, 769-70 ( 9th Cir. 1985); see also Nor thwest Motorcycle Ass' n v. United States Dep' t of Agriculture, 18 F .3d 1468, 1472 (9th Cir. 1994) (" [T] his case involves r eview of a fina l ag ency

deter mination under the [APA] ; theref ore, resolution of th[e] matter doe s not require fac t finding on be half of this cour t. Rather, the c ourt' s revie w is limi ted to the administrative re cord." ). Summary judgme nt thus serves as the mecha nism for dec iding, a s a matter of law, whe ther the a g ency

action is supported by

the administrative re cord a

nd otherwise c onsistent with the APA standard of r eview. See Richard v. I NS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977), cited in B loch v. Powell, 227 F. Supp. 2d 25,

731 (D.D.C. 2002), a ff' d, 348 F.3d 1060 ( D.C. Cir. 2003).

Plaintiffs challeng e Ka di's de signation as a SDGT as violatingthe re quirements of the APA, I I EPA, and EO 13,224. The APA require s that the Court "hold unlaw ful and set a side ag ency action, finding s, and conc lusions" that ar e " arbitra ry , capr icious, an abuse of discre tion, or otherwise not in ac corda

nce w ith law." 5 U .S.C. § 706(2)(A). The "sc ope of r eview unde r the

' arbitra ry and ca pricious' standard is na

rrow a nd a cour t is not t o substitut e its judgme nt for that of the a g ency ." Motor V ehicle Mf rs. Assn. of U.S., Inc. v. State F arm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The court must be satisfied that the ag ency has " ' examine[ d] t he re levant data a nd articulate[d] a satisfa ctory explanation for its action including a rational connec tion betwee n the fa cts found and the choice made.' " A lpharma, I nc. v. L eavitt, 460 F.3d 1, 6 ( D.C. Cir. 2006). The a g ency ’s dec isions are e ntitled to a “pre sumption of regularity ,” Citiz ens to Preser ve Ove rton Park, Inc. v. Volpe, 401 U .S. 402, 415 (1971), and a lthough “ inquiry into the fac ts is to be searc hing a

nd car eful, the ultimate standa rd of r eview is a

narr ow one.” I d. at 416. The Court' s review

is confined to the a dminist rative r ecor d, subject to limit ed exceptions not applicable here . See Camp v. Pit ts, 411 U.S. 138, 142 (1973) (" [T] he foc al point for judicial revie w should be the a dminist rative r ecor d alre ady in exi stence , not some new re cord ma de initially in the revie wing court." ). DISCUSSIO N I. AP A Claim A. Stand ard for Motion f or Sum m ary Judgm ent and Discovery Be fore addre ssing the me rits of Kadi' s APA claim, the Court first consider s Kadi' s preliminary

argument that summary

judgme nt is inappropriate be cause there are disputed issues

8of mater ial fac t. Alternatively , he cla ims that the moti on for summary judgme nt is premature beca use he ha s not been provide d an opportunity to obtain discovery

on his claims. See Opp' n at 64-69. In g ener al, summary judgme nt "is prope r only afte r the plaintiff ha s been g iven ade quate time for discove ry ." F irst Chicag o Int'l v. United E x ch. Co., 836 F.2d 1375, 1380 ( D.C. Cir. 1988). Howe ver, a

party opposing summar

y judgme nt and see king to obtain discove ry under Rule 56(f) ha s the burden of stating " concr etely

why additional discovery

is neede d to oppose a motion for summary

judgme nt." Me ssina v. Krakower , 439 F. 3d 755, 762 ( D.C. Cir. 2006); see also By rd v. EPA, 174 F.3d 239, 248 n.8 ( D.C. Cir. 1999) (par ty seekingdiscovery

has the burden of identifying which fa cts to be discover ed would cr eate triable issue, a s well as the

rea sons why

discovery

is nece ssary

to challeng e the summary judgme nt motion). Kadi ar g ues that bec ause the classified r ecor d was not made available to him, he is unable to respond to the motion for summary judgme nt. Moreover , he cla ims that because subsequent decisions by

other c ountries " vindicated him," the administrative re cord is ther efor e incomplete, and he c ontends that he should be g iven an oppor tunity to supplement it. The Court rejec ts these arguments. Subsequent to the 2004 decision, Ka di has had seve ral year s and opportunities to petition OFAC to supplement the administrative r ecor d, but he has not done so. More over, absent " evidenc e that the a g ency has g iven a f

alse re ason . . . discover

y is inappropriate in case s under the APA." See Nat' l Trea sury Employ ees Union v. Seidman, 786 F. Supp. 1041, 1046 (D.D.C. 1992). A lthough Ka di attempts to argue that OF AC has ac ted in bad fa ith, nothing in the re cord suppor

ts Kadi' s contention. Even if the Court permitted discover y , it is doubt ful that it would g arne r additional fa cts that would help to dec ide whethe r the a g ency action wa s arbitra

ry

9and ca

pricious, g iven the def

ere ntial reviewof such a ctions. See Camp , 411 U.S. at 142 (" [T] he foca l point for judicial revie w should be the a dminist rative r ecor d alre ady in exi stence , not some

new r ecor d made initially in the revie wing court." ); Seidman, 786 F. Supp. at 1046 n. 11 (" The Court may

not substit ute its judgment for that of the de cision-makingag ency .") (citingMotor Vehicle Mfrs., 463 U.S. at 43). A ccor dingly , the Court will deny Kadi' s motion for discovery under Rule 56( f) with re spect to the APA c laim and will proce ed to re solve it. B. Mer its of the AP A Claim Kadi' s APA claim primarily challeng es OF AC' s decision to continue his SDGT desig nation as ar

bitrary and ca pricious, as ba sed on a la ck of suf ficient proc edura l safeguards, f or insufficienc y

of the e vidence in the administrative re cord, a nd for OF AC' s misplaced re liance on the fa cts that wer e in the re cord. See Compl. ¶¶ 51-54. In consideringthe merits of the c laim, the Court has re viewed the parties' submissi ons, the arg uments made by

the par ties at the hea

ring befor e the Court, and the entire a dminist rative r ecor d, which consists of both the cla ssified and unclassified r ecor d. In revie wing a cha lleng e to the ag ency ' s decision as a rbitrar y and ca pricious, the Court bear s sever al consider ations in mind. The D.C. Circuit has stated that " a highly defe rential revie w applies" to examination of a SDGT desig nation. I slamic Am. Relief Ag ency v. Gonzales, 477 F. 3d 728, 732 ( D.D.C. 2007); Holy L and F ound., 333 F.3d at 162. As previously stated, the "sc ope of r eview unde r the ' arbitra ry and ca pricious' standard is na

rrow a nd a cour t is not t o substitut e its judgme nt for that of the ag ency ." Motor V ehicle Mf rs., 463 U.S. at 43. The ag ency ’s dec isions are e ntitled to a “pre sumption of regularity ,” Citiz ens to Preser ve Ove rton Park, Inc. v. Volpe, 401 U .S. 402, 415 (1971), and a lthough “ inquiry into the fac ts is to be

10sear chingand ca ref ul, the ultimate standard of revie w is a nar

row one .” I d. at 416. The Court, then, " must consider whe ther the de cision was base d on a conside ration of the r eleva nt fac tors and whe ther ther e has be en a c lear err or of judg ment." I d. Courts are pa rticularly mindful that their re view is hig hly

defe rential whe n matters of f oreig n policy

and national se curity

are

conce rned. See I slamic Am. Relief Ag ency , 477 F.3d at 734 (" [O] ur re view -- in an ar ea at the intersec tion of national secur ity , fore ign policy , and administrative law -- is extremely defe rential." ); Z arma ch Oil Servs v. U.S. Dep' t of the Tre asury , 750 F. Supp. 2d 150, 155 (D.D.C. 2010) ( "[C] ourts owe a substantial measure of ' defe renc e to the political bra nches in matters of f

oreig n policy ,' including c ases involving blocking order s.") (citingReg an v. Wald, 468 U.S. 222, 242 (1984)); Holy L and F ound., 219 F. Supp. 2d at 84 (" Bloc king or ders a re a n important component of U.S. for eig n policy , and the Pre sident' s choice of this tool to combat terror ism is entit led to particula r def ere nce." ) 1. Over

view of the OFA C Decision and Ka di's Arguments 6 After petitioning OF AC for re consideration in Decembe r 2001, Ka di and the ag ency eng ag ed in seve ral mee tings a nd Kadi provide d numerous stateme nts and submissions . On Marc h 12, 2004, OFA C notified Kadi that his petition for rec onsideration wa s denied a nd that his name would r emain on the list of SDGTs. AR 1. OF AC emphasized that its determination rested on the "totality

of the re cord" (both classified a nd unclassified) , which showe d that Kadi had fina ncial re lationships -- primarily throug h the Muwaf

aq F oundation, but also throug h other

Kadi’s APA c laim focuses on O FAC' s denial of his re consideration petition on M arc h 6 12, 2004, as the " final ag ency action" challeng ed. He nce, f or purpose s of the APA cla im, the Court considers the a dequac y of evide nce suppor

ting the Ma

rch 2004 O FAC de cision to continue the desig nation, rathe r than the a dequac y of the e vidence supporting the initial designation decision in 2001. 11Kadi compa nies -- w ith many

persons a nd org anizations that were de signated SDGTs by OFA C: No one e lement, no one c ontact, no one a ccusa tion of funding is taken as beingdeter

minative of the a ssessment that AL -QAD Ihas bee n providing support to terror ists through his ac tions. Rather, when c onsideringthe number of sour ces, the numbers of a ctivities and leng th of time, the totality of the e vidence , both classified a nd unclassified, this provides a rea son to believe Ya sin AL -QAD Ihas funde d terror ist and ext remist individuals and operations. AR 22. In decidingthat Kadi' s continued desig nation was wa rra nted, OF AC considere d an administrative re cord of

over 2800 pa g es, which inc luded the extensive submissions Kadi made to OFAC duringthe re considera tion process, as we ll as other docume nts. OFAC also

7 considere d a cla ssified rec ord. B ased on its assessment of all this evidence , OFA C determined that "a rea sonable ba sis remains to continue the de signation of [Kadi] under E.O . 13224." A R 1. OFA C invoked eac h of the thre e g rounds authorized in EO 13,224, findingthat there was " rea son to believe" that Kadi wa s:

$ actingfor or

on behalf of al Qa ida, Osama

Bin L aden, a

nd Makhtab a lKhidamat, per sons list ed in the Anne x to E.O. 13,224;

$ assisting in, sponsoring , or providingfinanc ial, materia l, or technolog ical support for, or

financ ial or other se rvice s to or in support of, amongothers, al Qaida , Osama B in L aden, Ma khtab al-K

hidamat, Hama s, the Revival of I slamic Her itag e Society , Al-Ha rama y n (B osnia), Chafiq Ayadi, and Wa' el

Kadi provide d sever al witness statements and submissions to OFAC, some of which 7 had bee n submitt ed in other pr ocee dings. The y include: Kadi' s Wi tness Statement, Dec . 17, 2001 (AR 92-280); Ka di's Supplementa l Wi tness Statement, J uly 23, 2002 (AR 281-505); Ka di's Summary Presentation for

OFA C, Aug . 1, 2002 (AR 1068-1085); Ka di's Thir d Wit ness Statement, Dec . 19, 2002 (AR 689-1067); Ka di's Pre sentation for F ebrua ry 28th Meetingwith OFA C, Feb. 28, 2003 ( AR 1184-1351); Ka di's Answers to Que stions C oncer ning the Petition t o Delist, J uly

11, 2003 (AR 1357-1391); Ka di's Submission to t he De puty Attorney Gene ral of Switz erla nd, Mr. Claude Nic ati, Fur ther to the Mee ting at the Swiss Embassy in Riy adh, August 22, 2003 (AR 2020-2406). 12J ulaidan, per sons subject to E.O. 13,224; and

$ associate d with, among others, al Qa ida, Osama Bin L aden, Ma

khtab alKhidamat, Hamas, the Revival of I slamic Heritag e Society , Al-Ha rama y n (B osnia), Chafiq Ayadi, and Wa' el J ulaidan . . . . AR 22. Although O FAC invoked a ll three g rounds, and e mphasized its decision to continue the desig nation based on the totality of the re cord, O FAC' s decision appe ars to re ly primarily on Kadi' s financia l support of terr orism. Neither K adi nor the G overnme nt take the position that all three criter ia must be satisfied in orde r to uphold the desig nation. 8 Kadi ac knowledg es the hig hly defe rential re view ac corde d to OFAC' s decision. B ut he claims that the administrative re cord, e ven whe n viewed in its totality , shows that "the re is no

' substantial evidence ' . . . of any sort" to support the de signation, see Opp' n at 48, and he argues that the evidenc e under lying O FAC' s decision is unreliable. Spec ifically , Kadi cla ims that the administrative re cord f

ails to support OFAC' s findings that he (1) pr ovided support to terror ism throug h his leader ship in the Muwafa q Foundation; (2) provided fina ncial or othe r support to SDGTs; or (3) ha d any

other ties to justify

the sanc tions im posed ag ainst him. Opp'n at 49. As part of his attack on the suff iciency of the e vidence , Kadi take s issue with OFAC' s relianc e on his own statements as e vidence d in the fre quent re fer ence to them in the OFAC Memor andum. He

The OF AC Memorandum c ontains repe ated e mphasis on "money " a nd "f unding," both 8 in the "Conc lusion" and throughout the final dec ision. The Gover nment states that it is not moving f or summary

judgme nt on the "othe rwise a ssociated with" criter ion, nor does it seek summary judgme nt on the "material support" or " service s" e lement of the ba sis for desig nation. See De fs.' Mot. at 12 n.6 (" Def endants a re not movingfor summary judgme nt on [ this] basis . . . this alternative ba sis for desig nation is larg ely duplicative of the other grounds . . . ." ); Reply at 37 (" Kadi wa s desig nated f or providingfinanc ial support, so the Court need not a nd should not consider whether

the terms ' materia l support' or ' service s' might be unc onstitut ionally applied to another party .") These te rms, howeve r, ar e the f ocus of Ka di's va g ueness a nd overbr eadth c laims. 13also protests OF AC' s use of c lassified information to support the continued designation. Finally , 9 Kadi continues to dispute the a ccur acy and re liability

of ce rtain piec es of e vidence in the rec ord, notably the two-pa g e fax , news a rticles, and the aff

idavit submit ted by

FB IAg ent Richard Wright. He also points to subsequent decisions by other c ountries, with vary ing pr ocedur al postures, as pur

ported indicators of OF AC' s err or in continuing his designation. Kadi ar g ues that the two-pa g e fax sent by the United States to the United King dom contained " substantially

err oneous" information. He f urther c laims that the fax's re liance on "non- evidential sourc es" such as ne ws article s and information from websites constituted hear say . Compl. ¶ 24. But Kadi' s argument that the Gover nment is categ orica lly

fore closed fr om considering"he arsa

y " sour ces is wr ong . Courts, including the D .C. Circuit, have held that hear say evidenc e ca

n be conside red a s part of the administrative re cord. See Holy L and F ound., 333 F.3d at 162 (reje cting the contention that OF AC may not rely on hear say

evidenc e, and stating that desig nations can be based on a broad r ang e of e vidence , including intellig ence data and hea rsay decla rations); Nat’l Council of Resistance of Iran v. D ep' t of State, 251 F.3d 192, 196 (D.C. Cir. 2001); Al Har amain I slamic Found. v. U .S. Dep' t of Tre asury , 585 F. Supp. 2d 1233, 1258 (D. Or e. 2008) ( "A l Hara main I ") (" The APA pe rmits the ag ency ' s use of ' any oral or documentar

y evidenc e' so long a s the evidenc e is not irrele vant, immaterial, or unduly repe titit ious evidence .") (quoting 5 U.S.C. ' 556(d)) . Acc ording ly , OFA C's r eliance on newspa per a rticles, whe ther in the two-pa g e fax or in the administrative re cord g ener ally , was entirely proper .

This issue was addr essed by the Court' s Marc h 30, 2010 order denying his motion to 9 prec lude the Gove rnment' s relianc e on such e vidence

. 14Kadi also a lludes to the findings by other investig ative bodies a round the wor ld that,

acc ordingto him, have consider ed the same or similar terr orism alleg ations ag ainst him, and "vindicated" him in every forum. See O pp' n at 4-5. Howeve r, the de cisions cited by Kadi all post-date the Ma

rch 2004 O FAC de cision under r eview a nd are not part of the a dminist rative

rec ord. Notwithstanding the impropriety of consider ing suc h decisions, the Court would, in any event, be reluc tant to rely on the dec isions of other countrie s based on infor mation that likely differ ed fr om the administrative re cord c ompiled by and ava ilable to OFA C. Moreover , these decisions may

have be en re ache d under diff ere nt standards of pr oof or r eview, which furthe r undermines a

ny persua siveness they

would have. 2. Kadi' s Involvement in the Muwaf aq F oundation The Court now turns to the e videntiary basis for OF AC’s conc lusion that Kadi provided support -- pa

rticularly financ ial support -- to ter rorist ca uses and to other

SDGTs. OFA C emphasizes Kadi’s lea dership in the Muwa faq F oundation in its March 2004 dec ision. Acc ording ly , the Court looks first to Kadi’s re lationship with t hat entity

. The Muwa faq F oundation -- Ar abic f or " Ble ssed Succe ss" or

"H oly Success" -- wa s founded in the Channe l I slands on May 31, 1992 as a c haritable foundation. Sudan wa s the first country in which Muwaf

aq wa s active; it subsequently opera ted in Pakistan, Afg hanistan, Ethiopia, Somalia, Bosnia/He rzogovina , Albania, Austria , and Ge rmany . AR 707. Kadi re fer s to Muwafa q as a " highly

dece ntralised oper ation" that "c arr ied out separ ate a ctivities in various countries or

reg ions"; there fore , it had "no c entra l administration," and " no centr al ac counting sy stems nor any

centr al bank a ccounts." AR 1357-58. Muwaf aq re portedly

terminated ope rations in 1996 or 1997, but the OF AC Memorandum states that Muwafa q "c ontinued to opera te until

15mid-2001 under the umbr ella of Makhtab al-K hidamat . . . consider ed to be the pr ecur sor to alQaida," befor e Makhta

b al-Khidamat dissolved and was a bsorbed into Osama

Bin L aden' s org anization, and that "Muw afa q . . . joined [al-Qaida]." A R 14-15. Kadi' s submissi ons also note that Muwaf

aq is still reg istered in Holland a nd Be lgium. AR 708-09. The a dminist rative r ecor d ref lects that Ka di play ed a sig nificant lea dership role in Muwafa q. Kadi is one of six trustees, and the other s "de leg ated . . . the r unning a nd operation of the Foundation" to Kadi, who " was the dr iving f orce behind the administration of the foundation." AR 1357. He e ffe ctively conce ded that he dir ectly supervised the individual country office s. Kadi " selec ted the mana g ers r esponsible for the various countr ies" ; worked w ith them to determine " which cha ritable a ctivities to eng ag e in" ; helped " raise mone y for those activities" ; and, " [w] heneve r possible," he visited the country locations wher e Muwa faq ope rate d "to mee t with the country manag ers r eg ardingthe ac tiviti es of the F oundation," " about 3-4 times a y ear " f or ea ch countr

y . AR 1359. Significa

ntly , in addition to choosing a nd manag ing Muwafa q' s personne l, Kadi also transf err ed funds to the or g anization. He conc edes that he made those transfe rs, but argues that they wer e " solely

and exclusively

for the c haritable purposes of the foundation." Opp' n at 52. OFA C relied on Ka di's involveme nt in Muwafaq a nd, in particular , activities claimed to have oc curr ed in B osnia, Albania, Sudan, a nd Pakistan, to conclude that Kadi financ ially supported ter

rorist ac tiviti es, primar ily throug h Muwafa q, but also throug h other Ka di-owned entities. I t considere d Kadi' s relationships with, and financ ial transfe rs to, desig nated ter rorists Abdul L atif Saleh, Wa' el J ulaidan, and Cha riq Ay adi -- who wer e all involved in Muwaf aq.

16a. Activities in Albania and Bosnia and Kadi 's Relations hip to Saleh

OFA C pointed to Kadi' s activities in Albania, throug h Muwafa q and other Kadi-owned entities, as evidenc e of K adi' s financia l support of terr orist activities and other SDGT s. OFA C also conc luded that " [s] ome involvement in the financ ing of these a ctivities had also bee n provided by

Osama B in L aden." AR 9. Acc ordingto OFAC' s findings, Muwa faq g ave log istical and fina ncial support to Al-Ga

ma' at Al-I slamiy a, a mujaha din battalion in Bosnia that wa s desig nated a s a SDGT on Oc tober 31, 2001. The org anization also transfer red $500,000 to terror ist orga

nizations in the Ba lkans in the mid-1990s. AR 9. OFAC a lso found that Muwafa q was involved in ar

ms traffic king f

rom Albania to B osnia. And OF AC conclude d that as of late 2001, Kadi had c ontinued to finance instit utions and org anizations in t he B alkans a fter Muw afa q

cea sed oper ations there, inc luding two e ntities that were de signated as SDGTs in ea rly 2002 -- The Revival of

I slamic Her itag e Society ' s Pakistan and Afghanistan off ices a nd the B osniaHerzegovina

branc h of the Al-H ara

main Foundation. AR 9-10. Kadi also owne d sever al Albanian c ompanies, which, a ccor ding to OF AC, "f unneled money to ext remists or employ ed extremists in posi tions where the y controlled the f

irms' f unds." AR 11. I n addition, "B in L aden a lleg edly provided the w orkingcapital f or four or five of AL

QADI ' s companies in Albania ." I d. In 1992, Kadi met Abdul L atif Saleh at a medica l confe renc e, and soon the rea fter e ntere d into severa l business ventures with him, including Kar avan, a

n Albanian c onstruction and prope rty development c ompany , and what OFAC char acte rizes as Kadi' s main Albanian fir m. AR 766-767. Acc ordingto OFAC, Saleh w as g ener al manag er of

all of Ka di's businesse s in Albania and he ld 10% of Ka di Group investments in Albania. AR 10-11. He was a lso an " officia l signe r" for Ka rava n and its bank ac counts, and

17had author ization t o withdraw mone y direc tly from Ka di's ba

nk acc ounts and transfe r funds. AR 1367. Saleh was a lso the head of Muwafa q' s Albanian ope rations. AR 10, 737-41. Kadi himself admits that money was take n from his local businesses " to make pay ments to support [ Muwafa q' s] activiti es." AR 1367. Money was ofte n taken f

rom Kar avan' s acc ounts to fund Muwaf

aq, and K ara

van’s a ccounts we re a lso used to make contr ibutions t o other nong overnme ntal org anizations; Kadi would then reimburse K ara van. I d. This arra

ng ement wa s confirme d by

OFA C’s interviews with two Ka rava n employ ees - - Violet Spaho, a f inancial manag er, a

nd Amr Al Z ainy

(aka Amr al-Z aini), who wa s Kara van' s director

and Ka di's f

inancial repr esentative in Albania. Ac cording to OFAC, whe n Kar avan w as re ady to send a lar g e sum of money back to Saudi Ar abia a s profits, the main offic e in Saudi Ara bia instructed Ka

rava n to g ive the funds to cha

ritable c auses, whic h included Muwafa q. AR 12. OFA C pointed to larg e wire tra nsfer s in and out of Kadi' s persona l bank ac counts, as we ll as larg e ca sh withdrawa ls made f rom Kar avan a ccounts a

nd larg e pay

ments to Saleh. AR 12. In 1999, Saleh was de ported fr om Albania. Ka di claimed that Saleh wa s deported a s a matter of mistake n identity -- he share d the same na

me with an Egy

ptian citizen who was " a member of

the J ihad Group." AR 10 & 739- 40. Howeve r, OF AC had a diff ere nt acc ount. I t found that Saleh wa s expelled beca use of his ties with known terr orists, including Osama B in L aden, a nd stated that Saleh' s number had be en found in the phone books of B in L aden associate s who had tar g eted the U .S. Embassy in Tirana in 1998. OF AC, based on a n interview with Al Z ainy , noted that when Wa' el J ulaidan, a SDGT char acte rized by OFA C as a " Bin L aden associate ," visited Alba

nia, Saleh tre ated Julaidan as his boss. AR 12. OFA C also believed that Saleh had f

ounded and or g anized the Albanian I slamic J ihad (AI J ). AR 10-11. OF AC claimed

18that Kadi wa s an ac tive supporter a nd fundra iser for

AI J , and noted that Muwa faq ope rate d a school in Kukes in 1997, wher e seve ral students had be en sele cted f or member ship in AI J . AR 9-11. Ka di confirmed that Muwafa q financ ially supported the sc hool, and that Saleh wa s involved in running it, but st ated that it shut down due to financ ial problems. AR 743.

b. Involv eme nt in Other Countri es and Other M uwafaq T ies OFA C also considere d Muwafa q' s involvement in other countrie s such as Pakistan and Sudan, and other

connec tions that indi cate d that Muwafa q was tied to terr orist activites and SDGTs. Muwafa q' s Pakistan operation was established in I slamabad in 1992, a nd Kadi hire d Amir Mehdi to be its local direc tor. AR 720 & 723- 24. As direc tor, Mehdi' s responsibilities included handlingand distributing Muwa faq f unds. Mehdi turned out not to be a g ood choice

. Kadi himself conc eded tha t the Pakistan Governme nt raided Muwa faq' s office in I slamabad on Marc h 21, 1995, and that subseque ntly "the officia ls of the FIA (the Pakistan se curity service s)

arr ested Amir Me hdi on March 29, 1995." AR 724. Kadi' s only explanation was that FIA had also conduc ted ra ids and targ eted other Muslim charities workingin Pakistan. I d. Acc ordingto OFA C, however , the re ason for the ra id was Mehdi' s involvement in terrorist ac tiviti es. Specifica lly , one of Me hdi's te lephone number s had bee n used by associate s of terr orists in Pakistan and abr oad, and ope n source repor ting ha d indicated that the r aid was trig g ere d by Ramzi Yousef' s arr est for the first World Trade Ce nter bombing . AR 11. Kadi cla imed that he terminated Me hdi's e mploy ment following his relea se fr om arre st in 1995. AR 725. The Pakistan office s were perma nently closed in 1997. I d. OFA C also pointed to ties between Muwa faq' s office in Sudan and Osama Bin L aden, a s well as Ka di's c laimed ac knowledg ment that Muwafa q' s Sudan office had " provided a ssistance to

19jihad activities in the Middle-East a nd the B alkans." AR 12. The administrative r ecor d ref lects that Sudan was the f

irst country

in which Muwaf

aq wa s active, a

nd that it had an off

ice in Khar toum. AR 709, 714. OFAC stated that whe n Muwafa q opened in Sudan, a round 1991 to 1993, Osama B in L aden w as base d in the country . Kadi close d the offic e in 1996, appa rently havingbecome embroiled in ac cusations of ter rorism. AR 718. The Af rica Confidential had implicated Muwaf

aq in terr orism, but Kadi and the publication eventually settled a libel ac tion. OFA C considere d that resolution, but rejec ted Kadi' s claim that it supported a findingthat Muwafa q was not involved in supporting terror ist activities or SDGTs. AR 12. OFA C also considere d Muwafa q' s relationship to Makhtab al- Khidamat, an umbr ella org anization established in the ear ly 1980s that was believe d to be the pre cursor to al-Qa ida. OFA C found that "Muw afa q was pa rt of Makhta

b al-Khidamat and continued to ope rate under the Makhtab a l-Khidamat umbre lla until mi d-2001, whe n the latter dissolved a nd was a bsorbed into Osama B in L aden' s org anization. Subs equently , a number of Ara b [NGOs] and org anizations formerly

aff iliated with Makhtab al-K hidamat . . . joined Al-Qa ida. These included Muwa faq." AR 14-15. Kadi denie s this claim, noting that Muwaf aq had c ease d operating by

1998 at the latest. Opp' n at 51 (c iting De fs.' Mot. at 10).

c. Kadi'

s Arguments Kadi disputes OF AC' s findings a nd maintains that Muwafa q was a n org anization eng ag ed in char itable ac tiviti es, not in supporting te rror ism. He claims that he pr ovided a leg itimate explanation for any

expenditures throug h Muwafa q, which OF AC simply ignor ed, and a ccuse s OFA C of draw ing a

conclusory

connec tion between Muw afa q (and by extension, Kadi) and terror ism, by

failingto consider " all of the g ood works done by the Founda

tion." Opp' n at 50-51.

20Although K adi admits that he transf err ed lar g e amounts of c ash to ce rtain Muwaf aq per sonnel who wer e implicated in ter rorist ac tiviti es, Ka di claims no knowledg e of the ir involvement and states that, in any

case , his involvement with them predated the ir desig nations as SDGTs. Kadi surmises that the " principal sourc e" for a ccusations ag ainst Muwafa q was likely the October 19, 1999 USA Today

article authore d by

J ack K elley . Opp' n at 51. The a rticle, titled "Saudi Mone y

Aiding B in L aden B usinessmen Are Financ ing F ront Groups," descr ibed how prominent businessmen in Saudi Arabia wer e tra nsfer ringtens of millions of dollars to Bin L aden- linked bank ac counts, and identified " Ble ssed Relief" as a " front" for B in L aden. See AR 161-62. Ka di contends that this article w as unre liable bec ause U SA Today later c oncede d that it had " sever al er

rors" and bec ause K elley

was subseque ntly

found " to have f

abric ated se vera l highprofile stories." See Opp' n at 10, 51; Br own Dec l., Ex . I

. To the extent Kadi contends that ne wspape r ar ticles ca nnot be re lied upon by

the Gover nment at all , that proposition is not well-g rounded. A s alrea dy stated, re liance on he arsa y is plainly allowed. F urthermor e, re liance on ne wspape r ar ticles has bee n permitted to " fill in evidentiar y g aps whe n there is corrobor ation," a s well as to provide ba ckg round information. See Awa d v. Obama, 646 F . Supp. 2d 20, 25 (D.D.C. 2009) (a pplying this principle in r eviewing a habe as petition of a Gua ntanamo deta inee) . This is consistent with t he g ener ally rec og nized principle that re liability

of evide nce a

nd rea sonablene ss are the touchstones of me asuringthe ag ency ' s decision, in contra st to Kadi' s assumption that newspaper s are per seunreliable

. More to the point, Kadi doe s not claim that Kelley fabr icated a

ny asser tions in t he ar

ticle that would be re levant here . And, althoug h USA Today ultimately

corr ecte d some err ors that appea red in the a

rticle, the published c orre ction post-dated OF AC' s decision and he nce is not par t

21of the a dminist rative r ecor d. The same rea soning a pplies to Kadi' s relianc e on Ke lley ' s subsequent re signation. Moreover , OFA C does not appea r to rely signific antly

on Kelley ' s article . And Kadi, a s part of his submissions, provided OFA C with his version of the claims made in the Ke lley

article , see, e .g ., AR 711-14. OF AC theref ore ha d the bene fit of Kadi' s

acc ount which it then rea sonably discredited ba sed on the e vidence in the rec ord as a whole. Contrary to Kadi' s argument that OFA C "fa iled to consider" the g ood works of Muwa faq, both the Marc h 2004 OFA C Memorandum and the administrative re cord indicate otherw ise. OFA C acknowle dg ed that Ka di had provided e vidence of Muwaf aq' s involvement "in substantial char itable ac tiviti es." Neve rtheless, OF AC conclude d that this evidence "by no means undermines the de termination that the cha rity was, in addition, used to fund ter rorism." AR 2788. I t was not unrea sonable for OFA C to conclude that c haritable org anizations that perform g ood works could a lso concurr ently act a s conduits for ter

rorist ac tiviti es. In its Memorandum, OFA C cited to the April 12, 2002 testimony by the Deputy

Assistant Secreta

ry for Te rror ism and Violent Crime befor e the House Financ ial Subcommitt ee on O versig ht and Investig ations:

Investig ation and ana ly sis by enfor ceme nt ag encie s have y ielded information indicatingthat terror ist orga nizations sometimes utiliz e cha

rities to fac ilitate funding and to funne l money

. Charitable donations to non-gove rnmental org anizations (NGOs) are commingle d and then of ten diverte d or siphoned to groups or org anizations that support terrorism . . . . Though these c harities may be off eringhumanitarian se rvice s here or abr oad, funds r aised by these va rious charities are some times diverted to terr orist cause s. This scheme is par ticularly troubling be cause of the perve rse use of funds donated in g ood will to fuel terror ist acts. AR 21. Sim ply

beca use Muwaf

aq wa s a cha

ritable org anization or perf ormed c haritable deeds does not make it immune to desig nation by OFA C. I ndeed, othe r cour ts have uphe ld OFAC' s desig nations of cha

ritable org anizations, notwit hstanding their status or involvement in g ood 22deeds. See I slamic Am. Relief Ag ency , 477 F.3d at 736-37 (foc us is on charitable org anization's

support of terr orism); Holy L and F ound., 333 F.3d a t 164-65 (same ); Humanitaria n L aw Projec t v. U.S. Trea sury

Dep' t, 578 F.3d 1133, 1139 (9th Cir. 2009) ( "H umanitarian L aw Projec t I I I ") 1 0 (" [M] oney

is fung ible; givingsupport intended to aid an org anization's pe ace ful ac tiviti es fr ees up resour ces that can be used for terror ist acts.") (citingHumanitaria n L aw Projec t I , 205 F. 3d at 1133; see a lso Humanitarian L aw Projec t I V, 130 S. Ct. at 2725 (citing a nd rely ing on e vidence provided by

g overnme nt affida

vit that concluded the f

ollowing: " Muddying the water s betwee n its poli tical ac tivism , g ood works, and te rror ist attacks, Hama s is able to use its overt political and cha ritable org anizations as a financ ial and log istical support network f or its terror ist operations."). As for K adi' s argument that he did not intend to provide financ ial support to SDGTs or for ter rorist ac ts through Muw afa q or his other c ompanies, that cla im is unavailing. Ka di's intent in donating to ter

rorist ca uses or to SDGTs is not releva nt here . See, e.g ., I slamic Am. Relief Ag ency , 477 F.3d at 735-36 (intent to aid unlawf ul acts wa s inapplicable in the c ontext of donations to terrorist g roups, " beca use the money

could be use d for unlaw ful ac tiviti es re g ardle ss of donor intent" ). More over, the Court rejec ts Kadi’s conte ntion that OFAC should have disreg arde d any

pre- desig nation information about individuals or org anizations. S ee, e .g ., Holy

A number of

case s cited her ein involve the Humanitar ian L aw Projec t. They are as 1 0 follows: Humanitarian L aw Projec t v. Reno, 205 F. 3d 1130 (9th Cir. 2000)) (" Humanitaria n L aw Projec t I ") (cla ims relating to prohibited activities under material support statute, 18 U.S.C. § 2339B) ; Humanitarian L aw Projec t v. U.S. Treasur y Dep' t, 484 F. Supp. 2d 1099 (C.D. Cal. 2007) (" Humanitaria

n L aw Projec t I I ") (cha lleng e and c laims relatingto SDGT desig nation); Humanitaria

n L aw Projec t v. U.S. Treasur y Dep' t, 578 F.3d 1133 (9th Cir. 2009) ( "H umanitarian L aw Projec t I I I ") (af

firmingHumanitaria

n L aw Projec t I I ) ; Holder v. H umanitarian L aw Projec t, 130 S. Ct . 2705 (2010) ( "H umanitarian L aw Projec t I V" ) (r eviewing challeng es and c laims relating to mater ial support statute 18 U.S.C. § 2339B). 23L and F ound., 333 F.3d at 162 (" [I ]t was c lear ly rational for

Trea sury to consider [Holy

L and Foundation's] ge nesis and history , which close ly connec t it with Hamas.")

. The Court has r eviewe d the evidenc e both in the classifie d and uncla ssified rec ords. The

rec ord, take n as a whole, and with re fer ence s to various source s over diff ere nt periods of time, confirms Ka di's c lose involvement in Muwafa q and, in turn, Muwaf aq' s involvement in the financ ing of

terrorist activities and support of SDGTs, despite whatever char itable works the foundation may

also have undertaken. Evidenc e in the uncla ssified rec ord indicate s that Kadi was integ rally

involved in runningMuwafa q, including the hiring and plac ement of SDGTs in key roles in the founda

tion, who then had the a

uthority and ability

to rec eive money

from Ka di, to acc ess Kadi' s funds, and to desig nate a nd divert those funds to other source s and ca

uses. Kadi himself admitted to transfe rringfunds to such Muwaf aq per sonnel, or allowingthem acc ess to his personal funds. A lthough he claimed in eve ry instance that either the f

unds were acc essed f

or char itable purposes or

that he had no know ledg e to what e nds the funds may have a ctually

been used, OF AC rea sonably

conclude d that Kadi' s claims wer e incr edible conside ringall the other evidenc e in the re cord. A nd althoug h the Court cannot c ite to any specific information in the classified r ecor d, the Court' s car eful re view conf irms that there is substantial evidenc e in the

rec ord bef

ore O FAC that Ka di was involved, through Muwafa q, in providing f inancial support for ter rorists. 3. Financ ial Support to other SDGTs Substantial evidence in the rec ord also supports OF AC' s conclusion that Kadi pr ovided financ ial support to other SDGTs, includingMuhammad Salah, Chaf iq Ay adi, and Wa' el

24J ulaidan. In eac h instance, K adi claims that his association with these individuals pre -date d 1 1 their desig nations and that the tra nsfer s of money

he provide d to them were all for leg itimate purposes. He claims that these r elationships were benig n, that he " worke d with individuals who he knew , trusted, and r espec ted, base d on their trac k rec ords in the re levant cha ritable or humanitarian f

ield," O pp' n at 51, and that OF AC had no basis to conc lude that any of these individuals "we re c onnecte d with terror ism in any way " be cause they

wer e designated year s after Kadi had known them. I d. Some of these c ontentions have a lrea dy been a ddresse d by

the Court, but they are unavailingin all respec ts and unsupported by the evidenc e in the re cord. O FAC' s finding s are briefly

summarized below.

a. W a'el Julaidan J ulaidan wa s desig nated a SDGT on September 6, 2002. K adi stated that he has known J ulaidan as a

family friend, a nd that their re lationship predated Julaidan' s SDGT desig nation by twenty y ear s. AR 2026. Acc ordingto Kadi, J ulaidan ca me from a

reputa ble family

and had a reputation for trustworthiness. AR 2026-29. Julaidan was the he ad of the Saudi J oint Relief Commi ttee in Kosovo and ha d assisted Kadi in cr eatinga women' s teac hers' colleg e for Croatian and B osnian ref

ug ees. AR 747. Whi le Kadi a dmits t o a long standing persona l and business relationship wit h J ulaidan, he c ontends that there is no basis for the a lleg ations that J ulaidan wa s

an assoc iate of O sama B in L aden or that Kadi himself wa s awa re of this fact. Opp' n at 58-60; AR 747. Kadi admitted that he pr ovided sig nificant fina ncial bene fits to J ulaidan. F or example, he stated that he g ave sha

res of a business he owned, " KA Stan," to J ulaidan as a "r ewa rd for the Although O FAC names other SDGTs, the O FAC Memor andum foc uses on these thre e 1 1 individuals. 25assistance he provide d to [ Kadi' s] charitable a ctivities in Bosnia." AR 772

. The only

share holders in KA Stan we re K adi, J ulaidan, and Cha riq Ayadi, another

SDGT. See id. Ka di also ac knowledg ed that he tr ansfe rre d $1.25 milli on throug h Kar avan dir ectly to J ulaidan' s persona l acc ount betwee n Fe bruar y 24, 1998 and August 3, 1998. AR 2022. Kadi stated that the money was intende d to fund the cr eation of housingunits for Al Emam Univer sity in Sanaa, Yemen, a projec t that was beingoverse en by J ulaidan' s company

Mara m. AR 2022-23. Kadi also admitted that he tra

nsfer red the funds at issue to J ualaidan' s persona l acc ount, AR 2032, but claimed it was " solely

and exclusively

for the pur

pose of supportingthe Univer sity Housing Project, and not for

any other purpose ," A R 2033. He explained that he did not transfe r the funds to Maram, beca

use he “ had entr

usted the Univer sity

HousingProject to . . . [J ulaidan] alone." I d. This expl anation is puzz ling, pa rticularly beca use Mar am was Julaidan' s own company , and Ka di had re lied on a table of information purporting

to show that J ulaidan made pay ments of substantially

the same a

mounts to hi s company

soon therea fter. Kadi' s table wa s submitt ed to OF AC to demonstrate that the f unds had a le g itimate purpose, c orrobor ated by

timing. The ta

ble shows that af

ter e ach of

the five pa

y ments to J ulaidan, Jul aidan then ma de a pa y ment to Maram of

substantially

the same a

mount, to

corr espond with construc tion invoices for the same figures. AR 2034-35. H oweve r, there are

sever al problems with Kadi' s version of e vents, and with the infor mation he provided to OF AC. For instance, $100,000 a

ppear s to be unac counted f or in the table. I d. Although Julaidan

rec eived a

total of $1.25 milli on from Ka di, the table re flec ts that only $1.15 milli on was transfe rre d to Maram. AR 2035. F ootnote 2 to Kadi' s table also states that " [a] ccor ding to ba nk statements of Mar am' s acc ount . . . [ one] sum [ $300,000] was never rec eived in Mar am' s acc ount . . . . ." K adi pre sumably

believes this is not a problem bec ause his table still shows "invoice s"

26and " demands" to Maram totaling$1.249 milli on. But the me re e x istence of invoices (a

nd "de mands" ) does not nec essar ily show that Kadi' s transfe rs to J ulaidan we re use d to pay those specific invoices, par

ticularly beca use " money

is fung ible." See Humanitarian L aw Projec t I V, 130 S. Ct . at 2725-26 (a g ree ing w ith propositions that "mone y is fung ible" a

nd that "f unds raised ostensibly for c haritable purposes have in the past be en re direc ted by some terr orist gr oups to fund the purc hase of

arms and e x plosives") (interna l quotations omi tted); Reg an v. Wald, 468 U.S. 222, 243 (1984) (a ffirmingPresident' s decision to ban travel to Cuba on the basis of "c urtail[ing] the flow of har d curr ency to Cuba -- c urre ncy

that could then be use d in support of Cuban adve nturism"). OFA C also rea sonably

discredited K adi' s claim that he did not know of Julaidan' s relationship t o Osama B in L aden. K adi himself conc eded that it was "c ommon knowledg e" that both J ulaidan and B in L aden ha d known ea ch other throug h their involvement in repe lling the Russian invasion of Afg hanistan in the 1980s. See AR 1378. Ka di expl ained, thoug h, that he had no knowledg e whe ther this association continued. H oweve r, Ka di also stated that he a sked J ulaidan on " sever al occ asions" whether he had a n ong oing r elationship with Bin L aden, w hich J ulaidan had de nied. AR 1379. I t is somewhat disinge nuous, then, for K adi to claim that he ha d no knowledg e or suspicion at all that J ulaidan may have c ontinued workingwith Bin L aden. Kadi also a cknowledg ed that the Saudi Ar abian g overnme nt had frozen Julaidan' s assets in 2002 based on its finding that J ulaidan had suppor ted Osama

Bin L aden' s terror ism network. The a dminist rative r ecor d contained a press re lease from the Saudi Embassy in DC issued on September 10, 2002 that refe rre d to J ulaidan as a "B in L aden ope rative" and stated: " J ulaidan, a Saudi fug itive is believed to have funnele d money to al-Qa eda. . . . O sama B in L aden a nd a top al-Qa eda lieute nant, Abu Z ubaida, ha ve ac knowledg ed Jul aidan a s a known a ssociate f or their 27operations. J ulaidan, who f oug ht with Bin L aden in Af g hanistan duringthe 1980s, alleg edly provided fina

ncial and log istical support to the al-Qa eda ne twork." AR 2690-91. Kadi' s only response to this evidence w as that the incide nt occur red year s after

the transa ction at issue. That argument is not compelling. See , e.g ., Holy L and F ound., 333 F.3d at 162 (stating that it was "c lear ly rational" for OF AC to consider infor mation that pre-dated a SDGT de signation and information re g ardinga SDGT' s "history and g enesis" ); I slamic Am. Relief Ag ency , 477 F.3d at 734 (" An entity ' s g enesis and history may proper ly be conside red by

OFA C in making the desig nation or blocking ," at least wher e ther e is no indication that ties have be en seve red) (citing Holy L and F ound., 333 F.3d at 162). Kadi a lso does not rebut OF AC' s observation that Osama Bin L aden r efe rre d to a close r elationship with J ulaidan in a 1999 inter view on Al-Jazeera

TV, wher e B in L aden r eporte dly said: "We a

re a ll in one boat, as is known to y ou, including our brother Wa' el J ulaidan," when r efe rringto the assassination of a l-Qaida "c o-founde r" Abdullah Azz am. AR 5. Ultimately , OFA C concluded that Kadi’s explanation for why he tra nsfer red $1.25 milli on to J ulaidan, and c onveyed other financ ial benef

its to J ulaidan, should not be cr edited, and that his continued desig nation was wa rra nted on the basis of his support of a nd relationship wit h SDGT J ulaidan. OF AC also reje cted Ka di’s excuse that he kne w J ulaidan bef ore he was desig nated, a

nd his plea that transa ctions or ac tiviti es he e ng ag ed in with J ulaidan prior to J ulaidan’s de signation should be disreg arde d. AR 7-8, 11-12, 14 & 22. OFA C's c onclusions

wer e substantially

supported by

the re cord, both c lassified and unc lassified, and a re c onsistent with the case law in this Circuit. S ee, e .g ., Holy L and F ound., 333 F.3d at 162; I slamic Am. Relief Ag ency , 477 F.3d at 734.

28b. Chariq Ayadi

Ay adi was de signa

ted a SDGT on O ctober

12, 2001 -- the sa

me day as Ka di. He wa s hired by Kadi to run Muwa faq’ s Europea n opera tions, based on J ulaidan' s rec ommendation. Ay adi over saw Muwa faq’ s Europea n operations from 1992 to around 1995 or 1996. K adi acknow ledg ed tra

nsfer ringsignific ant sums to Ay adi’s per sonal bank a ccount dur ing that time. As with J ulaidan, Ka di maintained that these tra nsfer s were solely

for c haritable purposes. AR 8 & 98- 99. Kadi also e ntrusted Ay adi with other a spects of his business. In early 1996, Kadi purcha sed a ma

jority holding in the now- closed Sara jevo-ba sed De positna Ba nk. Kadi desig nated Ayadi the " nominee" for the sha res. AR 1377

. He e x plained that he c hose Ayadi as his repre sentative be cause Ay adi was of Bosnian na

tionality , and under

local law, sha

reholde rs of a bank must be of

Bosnian nationality . AR 770. OFA C reg arde d Depositna B ank as suspe ct for other re asons. I t "ha s been a ssociated with I slamic extremists," including se rvingas the site for planning sessions for an attack ag ainst a U.S. fac ility in Saudi Arabia in the mid-1990s. AR 11. As previously

stated, Ayadi was a lso one of thre e shar eholder s, alongwith J ulaidan and K adi, in KA Stan. AR 772. OFA C also cited to Ay adi' s expul sion from Tunisia for his involvement in the Tunisian I slamic Fr ont. As with J ulaidan, Ka di admitted to transfer ringthe funds to Ayadi' s persona l acc ounts, but claimed they

wer e intended f

or leg itimate char itable purposes. He a lso claimed that he kne w Ay adi nine y ear s prior to his desig nation and had ne ver he ard of the Tunisian I slamic Fr ont or any alleg ations linking Ayadi to the org anization until he wa s desig nated a SDGT in October 2001. In short, Kadi maintained that he had no knowle dg e of A y adi’s involvement with the Tunisian I slamic Fr ont or terr orist activities. AR 1375, 1388.

29c. Muhammad Salah

Kadi also a dmitted to transferr ing f unds to Muhammad Salah, who wa s desig nated a SDT on J uly 27, 1995 pursuant to Executive Orde r 12,947, and a SDGT on Octobe r 31, 2001 pursua nt to EO 13,224. Def

s.' Mot. at 19; AR 299. Salah is a self-de clar ed Hamas operative. Yet ag ain, as with Jul aidan a nd Ay adi, Kadi c laimed that the tra nsfer of funds he made to Muhammad Salah wa s for leg itimate and cha ritable re asons. Opp' n at 57. OFA C’s Marc h 2004 Memorandum a nd its mot ion to dism iss focus a great deal on an $820,000 land dea l involving Salah. See AR 16-20; De fs.' Mot. at 21. The deta ils of the land deal a re c omplicated and muddled, but the most salient fa cts that OF AC considere d can be summarized briefly . In J uly 1991, Kadi, via his compa ny Qadi International, wired $820,000 from the Swiss branc h of F aisal F inance to the Qura nic L iterac y

Institut e (Q L I ) in Chicag o. The money was used to pur chase and deve lop land in Woodridge, I llinois . Salah, a QL I "e mploy ee" /volunteer, wa s involved in the flow of money that followed the la

nd deal. He was

arr ested by

the I srae li gove rnment on January 25, 1993, around the time Kadi was w iringmoney to him, and pled g uilty

to illega lly

channe ling f

unds for Ha

mas in I srae li mil itary

court in January 1995. Kadi did not dispute that the dea l occur red, nor did he dispute that he wa s transfe rring money to Salah. See, e.g ., AR 299-308. Kadi a dmitted that although he only met Salah on two or three occa sions "at the most," AR 300, in less than a one- y ear period he transfe rre d $167,000 direc tly to Salah' s persona l acc ount. AR 301. He maintained that the money was intende d for various QL Iexpenses "a

nd mainly to support individuals working f or QL I ." A R 299. He claimed that he sent the money to Salah persona lly

at the re quest of anothe r individual, Dr. Z aki, with whom he had long standing ties. AR 299. Kadi pre sented e x tensive docume ntation (and 30briefing ) in support of his interpre tation of the dea l as leg itimate. He cla imed he had no ide a that

Salah was involved in Ha mas. The bre akdown of

money transfe rre d by

Kadi dire ctly

to Salah was a s follows: (1) $27,000 on Marc h 16, 1992; (2) $30,000 on Jul y 3, 1992; (3) $50,000 on Oc tober 7, 1992; and (4) $60,000 a

round F ebrua

ry 1993. AR 301. Upon lear ning that Salah was a

rre sted in J anuar

y 1993, Kadi instructed his ba nk to stop the last transfer but, acc ordingto Kadi, the tra nsfer proce eded r eg ardle ss. AR 303. Kadi claimed that he ce ased making tr ansfe rs to Salah af ter he

was a rre sted, but admitted that he continued to tra nsfer funds to QL I . AR 304. In 1994, QL I sold the Woodridge la

nd, but did not repay

the $820,000 " loan" to Kadi. In 1999, the Gover

nment broug ht a civil forf eiture a ction ag ainst QL I , Muhammad Salah, and his wife in f

eder al cour

t in the Northern D istrict of I llinois , which included a lleg ations ag ainst Kadi. The pr ocee ds of the land de al wer e tied up in that litigation. On a motion to dismiss , the district judge conclude d, based in pa rt on the 1998 af

fidavit of F BI

Special Ag ent Robert Wright, that " the circ umstances surr ounding the Woodridge land dea l, the relationship betwee n QL Iand Salah, a nd the ef forts of QL Ito provide financ ial support to Salah all raise the infere nce that QL Iorder ed Ka di to transmit the money used to purcha se the Woodridg e land with the intent that it would be used to support Salah in his activities on behalf of Hamas." United States v. One 1997 E35 F ord Va n, 50 F. Supp. 2d 789, 805-06 (N .D. I ll. 1999). Kadi spent much time re futing the asser tions made in the Wright af fidavit submitted in the forf eiture a ction, and maintained that he neve r intended to obfusc ate the de tails of the land purcha se or his involvement in it. AR 310-35. He c laimed that in April 2005 Wright “w as under inve stigation for disciplinary conduct, wa s suspended a nd his employ

ment was subsequently

terminated by

the FB I .” Opp’ n at 57-58. How ever , Kadi did not contend that

31Wright’s proble ms were probative of the re liability

of his statements containe d within the administrative re cord. Mor eover , those problems occ urre d in April 2005, subsequent to OF AC’s Marc h 2004 decision cha lleng ed by Kadi her e, and a

re the ref ore not pa rt of the a dminist rative

rec ord. See, e .g ., J ifry

v. Fe dera l Aviation Admin., 370 F.3d 1174, 1181 (D.C. Cir. 2004) (" The court' s review

is lim ited . . . to the administrative re cord that was bef ore the [age ncy ]."); I slamic Am. Relief Ag ency , 477 F.3d at 733 (" we sha ll lim it our review of the de signation to the administrative re cord" ); see a lso Al Haramain I , 585 F. Supp. 2d at 1250 (r eview of OFA C's SDGT deter

mination is l imited to the administ rative r ecor d, subject to narr ow exceptions). Once ag ain, Kadi c laims that all the transfe rs he made wer e to support leg itimate char itable objectives, not terr orism. Here too, based on the e vidence in the classified a nd unclassified

rec ords, including the finding s in the forfe iture ac tion and the Wright a ffidavit, OF AC rea sonably reje cted Ka di’s explanation for why he wa s transfe rringfunds to SDGT Salah’s pe rsonal

acc ounts, and the over all structuringof the de al, as we ll as Kadi’s c ontention that he had no knowledg e of Sala

h’s af filiation with Hamas or other terror ist activities. 4. Financ ial Support and Ties to Bin L aden Kadi disputed havingties to Osama B in L aden, a nd contende d that he neither manag ed money nor businesses for

Osama B in L aden dir ectly , or for his benefit. AR 15; AR 1372. Kadi also asser ted that B in L aden, in turn, ha d no financ ial interest in any of Ka di's businesse s. AR 1372. Kadi cla imed that he met B in L aden on a few occa sions ending in 1993, but that those encounte rs did not involve or conc ern te rror ism. AR 1373-74. Howeve r, OF AC rea sonably relied on othe r evide nce in the r ecor d, which indicate d that Kadi' s ties with Osama B in L aden may have c ontinued, including r efe renc e to a letter found in 2002 that was a ddresse d to Bin L aden a nd ref err ed to Kadi a s "ma

nag ing mone y

for B in L ad[e]n in S udan." AR 15. OFA C 32noted that Kadi ope ned up a Muw afa q office in Sudan around the same time Bin L aden w as

based in the c ountry . AR 12. The letter , acc ordingto OFAC, a lso appea red to g ener ally

ref er to Kadi as one of B in L aden' s "f ormer ma nag ers." 5. Other A cts of F inancial Support and I nvestment OFA C pointed to other acts of f inancial support a

nd investments by

Kadi with individuals who have ties to terrorist ac tiviti es, althoug h OFA C did not appear to r ely on these ties dire ctly

in applying the criter ia of EO 13,224 to Ka di. The OF AC Memorandum de scribed K adi’s involvement in BMI , Inc. as f urther suppor

t for Ka di’s ties to terrorists. OF AC claimed that one of Ka di's c o-investors in B MI was a SDT named Mousa Abu Marzook, a Hamas leade r also associate d with Muhammed Salah. Ka di maintained that his investment in BMI was " passive" and " entirely

innocent." He c laimed that he wa s not awar e of a rela tionship between B MIand Marzook. AR 784. OFA C also concluded that Kadi made use of entities other tha n Muwafa q to send money

to ext remists and identified SDGT A sbat al-Ansa r as one such re cipient. Acc ording to OFAC, a cting throug h "a n unspecifie d Albania- based I slamic g roup," Kadi " promised fund transfe rs to an off

icial of the a l-Qa' ida supported ter rorist g roup Asbat a l-Ansar ," which was desig nated on Septembe r 23, 2001. AR 14. Kadi c ontended that he did not know of the org anization Asbat al-Ansa r. AR 1380.

* * * The Court has c are fully

revie wed both the c lassified and unc lassified re cords a nd finds that the administrative re cord a s a whole a mply supports OFA C's f

indings a nd its determination to continue Kadi' s desig nation. OFA C reasona bly conclude d that Kadi provide d financ ial support -- pr imarily

throug h the Muwaf

aq F oundation, but also throug h other mea ns -- to many persons who w ere desig nated SDGTs. It also had g ood rea son to rejec t Kadi’s explanations that 33his numerous financ ial transfe rs to these SDGTs we re le g itimate, or that they wer e, in eve ry instance, ma de without Kadi' s knowledg e of the ir aff iliations wit h terror ist groups a nd activities. OFA C reasona

bly conclude d that these c laims were simply too incredible, in lig ht of the totality of the e vidence befor e it. Ultimately , Kadi' s arguments attackingthe suffic iency of the e vidence befor e OF AC are without merit. OFAC re lied on more infor mation than Kadi' s own voluminous st atements a nd submissi ons, althoug h it is evident that OFAC ser iously considere d his ex planations, asked follow-up questions, and r equeste d additional information in order to addre ss continuing a

rea s of

conce rn. And Ka di's c laim that the two-pag e fax , and the a rticles cited a

nd the source s repr esente d there in, contained de ficienc ies, is besides the point. Whil e providingKadi a w indow into OFAC' s rea soning, the se items do not repre sent the whole pic ture -- the information re lied on by OFA C that Kadi attac ks as unsubstantiated is furthe r supported by the classifie d rec ord, which conf

irms Kadi' s financia l transac tions and relationships with SDGTs. The Court fully

acknow ledg es and is sy

mpathetic to Kadi' s arg

ument that he is at somewhat of a

disadvantag e in beingunable to re view the whole administrative re cord, in particula r the c lassified re cord. See I slamic Am. Relief Ag ency v. Unidentified F BI

Ag ents, 394 F. Supp. 2d 34, 45 (D.D .C. 2005). And admittedly , OFA C's unc lassified Memora ndum draws heavily from Ka di's own statements and submissions, as well as " information ava ilable to the U.S. Governme nt," without elabor atingin that public rec ord as to what the source of this information might be . Henc e, the Ma rch 2004 O FAC Memor andum, standingalone, may be somewhat unsatisfy

ing to Ka di. Howeve r, " [a] n ag ency ' s decision nee d not be ' a model of analy tic prec ision to survive a cha lleng e,' and ' [a] revie wing court will ' uphold a dec ision of less than ideal c larity

if the ag ency' s path may

rea sonably

be disce rned." Z arma ch, 750 F . Supp. 2d at 34154 (quoting Dickson v. Sec' y of De f., 68 F .3d 1396, 1404 (D.C. Cir. 1995). And, a s previously stated, it was wholly

proper for OF AC to rely

on classified ma

terial in makingits determination. See, e.g ., I EEPA, 50 U.S.C. § 1702(c) (" [I ]f the determination wa s based on c lassified information . . . such infor mation may

be submitted to the review ing c ourt ex parte and in

came ra" ); Holy

L and F ound., 333 F.3d 156, 164 ( D.C. Cir. 2003) (" ' due proc ess re quire[s] the disclosure of only

the unclassifie d portions of the administrative re cord' ") (quoting People' s Mojahedin Org . of Iran, 327 F .3d at 1242 (e mphasis in origina l)); Nat' l Council of Resistance of Iran, 251 F .3d at 208-09 (holdingthat the " opportunity to be hea rd at a meaning ful time and in a meaning ful manner " doe s not include ac cess to the c lassified re cord) (quoting Mathews v. Eldridg e, 424 U.S. 319, 333 (1976)) ; Order , ECF No. 39 ( denying K adi' s motion t o prec lude defe ndants from re lying on c lassified evide nce) . And as a lso previously addre ssed, there are compelling rea sons why

portions of the re cord must re main classified. The Court has ca ref ully revie wed both the c lassified and unc lassified re cords, a nd finds that there is substantial evidence to support OFAC' s conclusion that Kadi' s continued desig nation as a SDGT w as wa rra nted. Acc ording ly , the Court finds that OFA C "e x amine[d] the re levant data and ar ticulate[d] a satisfac tory

explanation for its action . . . including a ra tional connec tion between the fac ts found and the c hoice made ." Motor V ehicle Mf rs. Ass' n, 463 U.S. at 43. C. Other AP A Argum ents Kadi half hear tedly argues in a footnote in his opposition that "OF AC' s desig nation proce ss is arbitrary

and ca pricious bec ause it lac ks adequate substantive and pr ocedur al safe g uards." Opp' n at 47 n. 45. He c laims that the I EEPA "se ts forth no substantive criter ia for

' terror ists' at a ll," and that the criter ia in EO 13,224 ar e " vague and ove rbroa d." H e also a rgues that the desig nation proce ss itself lacks basic pr ocedur al safe g uards, includingthe lack of criter ia 35for the timing or conte nt of notices or infor mation about the burde n of proof . Acc ordingto Kadi, these a re " by definition arbitra

ry and ca pricious." The Gove rnment does not addr ess these arguments with respec t to the APA, instead savingthem for discussion with the constitutional claims Kadi ra ises. In any event, Ka di's c ontention is unavailing. O FAC' s conduct did not exceed its statutory

or re g ulatory

authority under the I I EPA, EO 13,224, or their implementing regulations. See I slamic Am. Relief Ag ency , 477 F.3d at 734-35 (noting that in EO 13,224, " the President desc ribed the ty pes of c onduct that could subjec t an entity to blocking of

its assets, such as pr oviding f

inancial support to ter

rorists" a nd "a uthorized the Trea sury

Depa rtment to desig nate a dditional entities that it deter mines are within the purview of the Orde r" ); see a lso Z arma ch, 750 F . Supp. 2d at 156 (" I EEPA provides the Pre sident with broad author ity to block

' proper ty in which a ny

fore ign c ounty

or a national thereof

has any interest .") (empha sis in orig inal). The Court will addr ess the re mainder of Kadi' s arguments in the discussion of his constitutional claims below. II. Constitutional Clai m s In revie wing Kadi' s constitutional claims, the Court has consulted materia ls outside the pleading s, including the exhibi ts attache d by both parties to their plea dings, a s well as the administrative re cord. B eca use the pa rties have been g iven the opportunity to present a dditional evidenc e with their submissions, the Court will conver t defe ndants' motion to di smiss Kadi's constitutional claims into one for summary judgme nt. See Holy

L and F ound., 333 F.3d a t 165-66 (noting that beca

use the district cour

t review ed the a dminist rative r ecor d in considering constitutional claims relatingto a SDGT desig nation, summary judgme nt was the a

pplicable standard) . Given the Court' s determination that substantial evidenc e supports OF AC' s conclusion that Ka di should remain desig nated a s a SDGT, the mer its of Kadi' s constitutional 36claims stand on wea k footing . Indeed, a s previously expressed, some of the se constitutional claims -- inc luding Ka di’s argument that OFA C ex cee ded its statutory authority -- pa rallel the arguments raised by

Kadi re lating to his APA cla im. See Z arma ch, 730 F . Supp. 2d at 155 n. 3 (“B eca use the Court finds that the OF AC’s ac tions do not vi olate the Constitution and thus should not be vacated under the APA, the constitutional claims nece ssarily must fail as well.”)

. A. Ability to Raise Constitutional Claims To beg in with, the Governme nt argues that all of Ka di's c onstitut ional claims must be dismiss ed bec ause K adi is a non-r esident alien w ith no substantial connections to this country and henc e he la cks the a

bility to assert a

ny rig hts under the United States Constitution. S ee Def s.' Mot. at 26-34. In arguing to the c ontrary , Kadi cla ims that because the blockingand 1 2 fre ezing of

his assets in the United States occ urre d as a r esult of ac tion init iated by the United States itself, he should be entitled to ra ise constitutional claims in response to those ac tions. Opp' n at 15-17. Alter

natively , without concedingthe ac cura cy of OF AC' s claims as to his contac ts with the United States, Kadi ar g ues that he satisfies the standar ds to raise due proce ss claims. 1 3 There is no clear

path to resolvingthese a

rguments. The D.C. Circuit has not explicitl y addre ssed what c riteria this Court should apply in consideringwhether

a for eig n national re siding outside the United States ca n satisfy the " substantial connec tion" test to raise rig hts under the

The Gove rnment conte nds that Kadi' s connec tions here should be a ssessed as of Marc h 1 2 2004, rathe r than a

ny prese nt-day

contac ts Kadi may

have a cquire d, althoug h it does not appea r to the Court that Kadi has a cquire d additional rele vant contac ts subsequent to that time. See Tr. 10:15-22 & 11:3-5. Kadi does not make this argument with respec t to any of his other c onstitut ional 1 3 claims. 37U.S. Consti tution related to the blockingor fr eezing of his assets. Nor ha s the D.C. Circuit

addre ssed whethe r such r ights turn on the pr esenc e of pr operty in the United States, or whe ther Kadi ca n raise c erta in constituti onal claims, but not others. See, e .g ., United States v. Ver dug oUrquidez, 494 U.S. 259, 264-66 (1990) (plurality opinion sugg esting that cer tain rig hts under the First and F ourth Amendments inure to the benef it of only those with sufficient c onnections to the United States). Some ca ses in this jurisdi ction provide guidance , but no case provides def initive

answe rs. In sever al ca ses, the D.C. Circuit has addr essed whe ther for eig n nationals have rig hts under the U.S. Consti tution in t he conte x t of ca ses involving the de signation of Fore ign T err orist Org anizations ("F TOs" ). See Nat’l Council of Resistance of Iran v. D ep’t of State, 251 F .3d 192, 200-03 (D.C. Cir. 2001); People' s Mojahedin of Iran v. D ep' t of State, 182 F.3d 17, 22 ( D.C. Cir. 2003); 32 County

Sovereig nty

Comm. v. Dep' t of State, 292 F.3d 797, 799 ( D.C. Cir. 2002). These c ases ha

ve looked to the pr esenc e of pr operty as the be nchmar

k for satisfying the "substantial c onnections" test, and whe ther a party has the a bility to raise c onstitut ional claims, at least with respe ct to that proper ty

. In National Council of Resistance of Iran, the D.C. Circuit held that two I rania n org anizations designated as F TOs wer e entitled to due pr ocess pr otections under the Fifth Amendment bec ause the y had " develope d substantial connec tions with t his country ." 251 F .3d at 202. The c ourt pointed to the desig nated or g anizations' " overt pre sence within the National Press Building " a

nd "c laim[ ] [ of] an interest in a small bank a ccount." I d. at 201. In People' s Mojahedin of Iran, the D.C. Circuit held that "[a] foreign entity without property

or pre sence in this country

has no constitutional rig hts, under the due proce ss clause or otherwise," 182 F.3d at 22, and that plaintiffs ther e lac ked substantial conne ction to the United States. The c ourt stated: "We put to one side situations in which an or g anization's ba nk deposits were seized as a r esult of 38the Secr etar y ' s desig nation. Neither

. . . [petit ioner] suffer ed that fate, pre sumably beca use no United States financ ial instit utions held any of their pr operty ." 182 F .3d at 22. Henc e, the c ourt found that People' s Mojahedin of Iran c ould not raise constitutional claims beca use it had no proper ty in the United States, nor any other substantial conne ctions. I d. Ultimately , events ha d evolved suc h that two org anizations -- National Council of Resistance of Iran a nd People' s Mojahedin of Iran - - we re f ound to be alter

eg os. Henc e, the D.C. Circuit conc luded that People' s Mojahedin of Iran, via National Council of Resistance of Iran’ s connec tions, had sufficie nt connec tions to bring a c onstitut ional claim. In analy zing " substantial connec tions" to the United States, the c ourt rema ined foc used on prope rty rathe r than phy sical pre sence , stating: [T] here is before us at least a c olorable a lleg ation that at least one of the petitioners has a

n interest in a ba

nk acc ount in the United States. . . . We have no idea of the truth of the a lleg ation . . . but for the pr esent purpose s, the colora ble alleg ation would seem e noug h to support their due proc ess claims. Russian Volunteer Flee t v. United States, 282 U.S. 481, 491-92 (1931), make s clea r that a fore ign or g anization that acquire s or holds proper ty in this country

may invoke the protec tions of the Constit ution when that prope rty is placed in jeopa

rdy by g overnme nt intervention. Nat’l Council of Resistance of I ran, 251 F .3d at 204. In 32 County , which also involved a challeng e to an or g anization's F TO desig nation, the D.C. Circuit concluded that "[t] he Secr etar y there fore did not have to provide 32 County . . . with any proce ss before desig nating them as [FTOs]" be cause it was not shown "that either org anization possessed any controlling interest in prope rty located w ithin the United States, nor do they demonstrate a

ny other for m of prese nce he re." 292 F.3d at 799. Taken tog ether , then, these c ases at least imply

that a for eig n national with proper ty in the United States has a

39sufficie nt connec tion to the United States to raise at lea st some constitutional claims. 1 4

Fur ther obfusc atingmatters, howe ver, a nd subsequent to the brie fingin this case, the Southern District of Ne w York dismissed claims ag ainst Kadi for lack of persona l jurisdiction in litigation re lating to the Septe mber 11 ter rorist attac ks. See In re Te rror ist Attacks on September 11, 2001, 740 F. Supp. 2d 494, 507-08 (S.D.N.Y . 2010). In that case , plaintiffs attempted to

secur e per sonal jurisdiction over Ka di by arguing that he had suff

icient contac ts with the United States. They

claimed that Ka di had incorpor ated a branc h of Muwaf

aq in Dela

war e in 1992, which re mained oper ational until 1997, and that he made financ ial transfe rs to individuals in t he United States who then tra nsfer red the money

for use for ter

rorist purposes. See id. at 508. They also claimed that he was involved in re al estate investments in Massachusetts and Pennsy lvania. See id. Consideringthese a lleg ations, the court c oncluded that Ka di lacked suf ficient c ontacts with the United States for pe rsonal jurisdiction. I d. Neither party has asse rted that this Court should rely

on the ana ly sis applied by In re Te rror ist Attacks on September 11, 2001 to re solve whether Kadi has substantial c onnections suffic ient to raise his constitutional claims here . And that case , in light of the c asela w in this Ci rcuit, does not nec essar ily bar K adi from r aising at least some of his constitutional challeng es to the desig nation and continued bloc king of his assets, provided that Ka di has some prope rty here

. Another c ase, A l-Aqee l v. Paulson, 568 F. Supp. 2d 64 (D.D.C. 2008), also indicates that the rulingin I n re Te rror ist Attacks on September 11, 2001 doe s not disposi tively addre ss Kadi' s

Although K adi may

be able to raise a

due proc ess cha lleng e base d on any proper ty or 1 4 assets he ha s in the United States, it is l ess clea r whe ther Ka di can a lso raise a First Amendme nt or F ourth Amendment c laim. No party has cited to c asela

w or fa cts that expli citly

lead to the conclusion that Ka di, as a non-r esident alien, should be pe rmitted to raise such c halleng es. 40ability

to raise c onstitut ional claims. Al-Aqe el, like Kadi, wa s a citizen and re sident of Saudi Ara bia, who soug ht to challeng e his SDGT desig nation. And like Kadi, Al- Aqee l had also bee n named in September

11-re lated litigation in the Sout hern D istrict of NewYork. The Gover nment argued that Al-A qeel lac ked insuffic ient connec tions to t he United States to ra ise any constitutional claims, and pointed to Al-Aqee l's a rguments reg ardinglack of persona l jurisdiction in an ear lier ca se then pe nding in the Souther n District of Ne w York, B urnett v. Al Ba raka Inv. & D ev. Corp., 03-c v-9849 (S.D.N.Y.) . Rejectingthose arguments, the court observe d that the issue in Bur nett was whe ther Al-A qeel, as a defendant , had purpose fully availed himself of

the protec tions of the law of the forum -- the State of Ne w York - - for the court ther e to exercise pe rsonal jurisdiction over him. Al-Aqe el, 568 F. Supp. 2d at 70 ( emphasis added) . The c ourt rea soned that the que stion before it was whethe r Al-Aqe el, as a plainti ff , had sufficie nt connec tions with t he United States a s a whole to have standingto raise c laims under the United States Constitut ion. I d. (empha sis added). U ltimately , the cour t concluded that AlAqee l had established suff icient contac ts in the United States, throug h his freque nt visit s to the United States, his positi on as an of fice r of a United States corpor ation, and his involvement in helping the org anization acquire proper ty in the United States, to raise " at least his due pr ocess claims under the Fifth Ame ndment." I d. Howeve r, the c ourt also conc luded that Al-Aqe el had no standing to raise a

Four th Amendment claim, bec ause the assets blocke d wer e over seas a nd he

was a citizen of Saudi Arabia. I d. at 70-71. There is arguably

a fa ctual dispute over

whether Kadi does, inde ed, have sufficie nt

connec tions to t he United States, whic h may hinge on what importanc e is place d on the assets which have been bloc ked her e. Ka di's c omplaint does not clear ly indicate whe re his asse ts have

41been f

rozen, and if a

ny of those asse ts were located in the United States. Instead, he simply complains g ener ally

that his assets have be en seized. At the he aring , the Gover nment either could not or would not identify whether Kadi had a

ny assets within the United States that had been bloc ked or f

rozen. See Tr. 12- 13. Kadi also c ould not enumerate which a ssets have be en, in fac t, blocked, althoug h he empha siz ed that his claim to the $820,000 " loan" he provide d to QL Ishould be consider ed an a sset. Tr 54:10-17. 1 5 The a dminist rative r ecor d indicates that it is likely that Kadi may

have ha d some proper

ty in the United States. Kadi re cites seve ral c onnections to the United States, see Opp' n at 15, including the following : (1) he w as a dire ctor of G lobal Diamond Resourc es, a U .S. company , and his share s and owne rship interests in the compa ny wer e fr ozen and blocked unde r the Notice of B lockingsent to Kadi " car e of" Global Diamond Resourc es, see AR 2785; and (2) he wired $820,000 to QL Iin 1992, and the proc eeds of that transac tion had initially been tied up in the civil forfe iture litigation in I llinois . Although K adi' s claim to the $820,000 at the time of the challeng ed ac tion is dubi ous, he does ne verthe less claim that he ha s proper ty interests in the United States that wer e fr ozen as a re sult of the desig nation. Ultimately , the issue of standingreg ardingKadi' s constitutional claims necessa rily implicates the validity

of OF AC' s blocking order on which Ka di's c onstitut ional claims rest. This g oes to the merits question of whe ther the bloc king or der itself w as valid. I n those

Kadi states that his " claim to $820,000 has bee n blocked a s a re sult of the fre eze." 1 5 Opp' n at 16. Presumably , this refe rs to the " loan" he provide d QL Ias par t of its land sale, that was pa rt of the f orfe iture proc eedingin U.S. District Court for the Northe rn District of I llinois

. Subsequently , the cour

t in the forfe iture proc eedingreje cted Ka di's c laim of interest to the $820,000, finding that the claim wa s untimely beca use the pa rties had a lrea dy

stipulated to its forf eiture to the G overnme nt. See Mem. Op. & Orde r, ECF N os. 121-22, Mar. 22, 2010 in USA v. 1997 E35 For d Van, 98- cv-3548 (N.D. I ll.). 42circ umstances, if the jurisdictional fac ts "a re ine x tricably

intertwined with the mer its of the case ," the issue of standingneed not be conclusively resolved, but instea d the cour t should "def

er its jurisdictional decision until the merits are he ard." Z arma ch, 750 F . Supp. 2d at 155-56 n. 4 (quoting Her

bert v. Nat'l Ac ad. of Scie nces, 974 F .2d 192, 198 (D.C. Cir. 1992)); see also, J ifry , 370 F.3d at 1183 (“We nee d not decide whether or not [plainti ffs] are entitled to constituti onal protec tions because , even a ssuming that they are , they have r ece ived all the proc ess that they are due.”) . Even a ssuming Ka di does have standing , all of his arguments on the merits of his constitutional claims are none theless unava iling for the re asons explained below. B. F if

th Am endm ent Due P roce ss Claim Kadi make s a host of ar g uments in support of his claim that defe ndants violated his rig ht to due proc ess. Specific ally , he conte nds that defe ndants failed to g ive him adequa te notice of the cha rg es, or a "thor oug h statement of r easons" for the de cision, adequa te time to respond, or an opportunity

to cross-e x amine witnesses or to plead his ca se bef

ore " any independe nt tribunal." Compl. ¶ 57. He also cla ims that the Government imprope rly relied on c lassified evide nce without providing him ac cess. The se ar g uments are all unavailing

. The D.C. Circuit in Holy

L and F oundation square ly reje cted the pr oposition t hat due proce ss require s most of the protections re quested by Kadi. The court he ld that notice and a meaning ful opportunity

to be hea rd ar e satisfied by

the provision of a post-de privation administrative re medy

and the oppor

tunity to submit written submissions t o OFA C, even whe re (as he re) the initial designa tion provided no notice or oppor tunity to be hea rd. Holy L and Found., 333 F .3d at 163-64; see also Global Relief F ound. v. O' Neill, 315 F.3d 748, 754 ( 7th Cir. 2002) (conc luding that no notice or pre -seizure he aringwas re quired unde r the Constituti on

43reg ardingOFA C's inter im blocking or der a nd desig nation as SDGT). The Holy L and F oundation court a lso stated that there was no a utomatic rig ht to acce ss classified e vidence , to confront a nd

cross-e x amine witnesses, or to obtain proce dures whic h approximate a judicial trial. 333 F .3d at 164. Her e, Ka di was provided w ith even more post-deprivation process than w as provided to Holy L and F oundation. Kadi' s opportunity to be meaning fully

hear d is evidence d by

the extensive submis sions he made to cha lleng e his continued de signation. He submitted three leng thy witness statements and numer ous exhi bits. AR 92-280, 281-505, 689-1067. More over, Kadi' s lawy ers ha d at least four fac e-to-f ace meeting s with OFAC over the 2002-2003 time frame. AR 4-5, 2752, 2765 (r efe rringto meeting s with counsel on J anuar y 15, 2002; August 1, 2002; Febr

uary 28, 2003; and September 8, 2003). OF AC also sent Kadi a five-pa g e letter

with detailed que stions about twelve continued a rea s of conc ern - - " the answe rs to which will help us issue a dete rmination on the petition." AR 1352-56. K adi provided a forty -one pa g e re sponse to the questionnaire . AR 1352-1394. He a lso availed himself of the opportunity to rebut the evidenc e he c onsidered e rrone ous, including the alleg ations in the Wright af fidavit reg arding Kadi’s involvement with QL Iand the I llinois land dea l, sources c ited in the two-pag e fax , and newspa per a rticles re fer

red to in the re cord. A ccor dingly , even if he did not rec eive the f

ull unclassified a dminist rative r ecor d prior to the Mar ch 2004 dec ision, he did rece ive an opportunity , in substance, to re but the evidenc e found in the unc lassified administrative re cord throug h his own submissi ons to OFAC, as w ell as the opportunity to respond robustly

to OFAC’s follow-up questions addr essing previous stateme nts Kadi had made and identifying spe cific f acts and ar eas of

conce rn re levant to the desig nation decision. This ca se is unlike People’s

44Mojahedin Org . of Iran v. U .S. Dep’t of State, 613 F . 3d 220, 228 (D.C. Cir. 2010), whe re the

court e x presse d conce rn that it was unable to discern what fac ts were relied on a nd what conclusions Tre asury

had dra wn from the r ecor d to support the FTO re- desig nation. There is no such conf usion here. T he Mar ch 2004 OF AC Memorandum a nd the administrative re cord, including the back a

nd forth exchang es with Kadi, show that OF AC considere d all of Ka di's submissi ons and explained its assessment of the e vidence . There fore , it is clear that the require ments of due pr ocess we re satisfied. 1 6 C. F if

th Am endm ent - Takings Clai m Kadi next contends that OF AC' s fre ezing of his assets has depr ived him of use of his proper ty , and that the de privation is "pe rmane nt" be cause "[t]he provisions of I EEPA, E.O. 13,224, and the implementingreg ulations provide no mecha nism for Mr. Ka di to further c ontest his designation or the blockingof his assets." Compl. ¶¶ 59-61. As a thre shold matter, the alleg ation that there is no "mec hanism . . . to further c ontest his designation" is untrue. OF AC

Kadi re lies heavily

on Al Har amain I

to support his due proce ss claim. See Opp' n at 1 6 20-21. Howe ver, this re liance is unavailing, a s both the District of Ore g on and the Ninth Circuit subsequently

held that any

due proc ess violation found in Al Hara main Iwas ha

rmless err or. See Al Har amain I slamic Found., Inc. v. U.S. Dep’ t of Tre asury , 07-cv- 1155, 2009 WL3756363, at *6-8 (D. O re. N ov. 5, 2009) (" Al Har amain I I ") ; Al Hara main I slamic Found., I

nc. v. U.S. Dep' t of Tre asury , --- F.3d -

--- , 2012 WL603979, at * 18-20 (9th Cir. F eb. 27, 2012) ( "A l Hara main I I I ") . Simi larly , to the extent that there wa s any violation of Kadi' s due proc ess rig hts in October 2001, it clear ly

was ha rmless in light of a ll the subsequent proc ess he r ece ived. Kadi’ s case is also distinguishable f

rom Kindhea

rts for Char itable Humanitar ian Dev. v. G eithner, 647 F . Supp. 2d 857 (N.D. O hio 2009) (" Kindhear ts I ") . There , the notice r ece ived by plaintiff had inadequately

disclosed the basis of the provisional desig nation beca use it merely

listed all the desig nation criter ia. The c ourt also consider ed OF AC' s numerous dela y s, failure s to respond, and misplacing of plaintiff' s submissi ons without any further explanation in concluding that plaintiff did not rece ive an a dequate post-deprivation hearing . I d. at 901-07. Ka di, in contrast, met and communicated w ith OFAC numerous times and ha d opportunities to ex chang e information reg ardinghis request for

rec onsideration. 45provides for a re consideration process that Ka di, in fact, used. In any event, c ourts in this j urisdiction that have c onsidered similar " taking s" c halleng es under the Fifth Ame ndment have r ejec ted them. See I slamic Am. Relief Ag ency , 394 F. Supp. 2d at 51 (“ [T] o the extent that the plaintiff seeks to cha lleng e the blockingof asse ts pursuant to an Ex ecutive O rder , such an or der is not, as a matter of la

w, a takingwithin the meaningof the F ifth Amendment.”) ; Holy

L and F ound., 219 F. Supp. 2d at 78 (" The c ase la w is clea r that blocking s under Executive Or ders a re te mporary

deprivations that do not vest the assets in the Governme nt. There fore , blocking s do not, as a matter of law, c onstitut e taking s within the meaningof the F ifth Amendment . . . . [C] ourts have c onsistently reje cted these claims in the I EEPA and TWEA context.") (c iting ca ses); see also Nielsen v. Sec ’y of the Tr easur

y , 424 F.2d 833, 844 ( D.C. Cir. 1970) (“ The tempora

ry blocking or fr eezing of the a ccounts of a liens within the territory of a state, suspendingthe rig ht of withdrawa l but not affec ting owne rship, does not appe ar to have been r eg arde d as a taking of proper ty .”). Even if the N otice of B locking constituted a " taking ," pur suant to the Tucke r Ac t, 28 U.S.C. § 1491, jurisdi ction would rest in the Court of F eder al Claims, not here. See I slamic Am. Relief Ag ency , 394 F. Supp. 2d at 51; Holy L and F ound., 219 F. Supp. 2d at 78 n.32; Global Relief F ound., 315 F.3d at 754 (" GRF' s taking s claim not only is premature -- it must await decision on the va lidity

of the g lobal terror ist designation . . . but also is i n the wrongcourt. It belong s to the Court of Fe dera l Claims under the Tucke r Ac t.") . Kadi cha rac terizes his claim as not being subject to the Tucke r Ac t beca use he doe s not seek money damag es. Opp' n at 25. B ut that char acte rization is contradicted by his complaint, which labels Count Three as a " Right to J ust Compensation." Compl. ¶¶ 58-61. More over, the Seventh Circuit has sug g ested that " just

46compensation" is the only reme dy available for a

taking s violation. S ee G lobal Relief F ound., 315 F.3d at 754 (" Opportunity to obtain rec ompense unde r the Tuc ker A ct, 28 U.S.C. § 1491(a), if the blockingturns out to be invalid, provides the private par ty with the very

reme dy that the Constit ution names: just compensation.")

. Acc ording ly , the Court lacks jurisdiction to resolve K adi' s taking s claim. And, eve n if the Court had jurisdiction, the Court ag ree s with other cour ts that have found that the blocking of assets does not constitute a taking unde r the F ifth Amendment. 1 7 D. F irst Am endm ent - Speec h and Association Kadi cla ims that the SDGT desig nation and blockingorder substantially

interfe re w ith his rig hts to free dom of speec h and fr eedom of association. He contends that his desig nation prohibits him from making humanitar ian contributions to “leg itimate char itable org anizations" and states that he "doe s not have a knowing aff

iliation with any

terror ist group or

individual including O sama B in L aden or Al-Qa eda . . . a

nd does not have a spec ific intent to further the illega l aims of any

terror ist group or

individual." Compl. ¶¶ 62-66; see also Opp' n at 31. As previously

stated, it is doubtful that Kadi, as a non- resident a lien with unclear ties to the United States, can e ven ra ise a c halleng e to OF AC' s action under the Fir st Amendment. But a ssuming he could, his F irst Amendment claims fa il.

The district cour

t in Holy L and F oundation opined that " [p] laintiff may . . . some day 1 7 have a cre dible argument that the long -term blockingorder has ripene d into a vesting of prope rty in the United States." 219 F. Supp. 2d at 78. B ut no court has r eac hed this issue and Ka di does not persuasive ly

argue that the blockingorder here has ripene d into a perma nent taking . As defe ndants point out, S DGTs ca n have the ir desig nations removed, a nd can ultimately

be delisted. The Notice of

Bloc king a lso advised Kadi that OF AC regulations provide desig nees the rig ht to eng ag e in limited authorized transac tions invol ving bloc ked prope rty . AR 2784-85 (" Should y ou seek a

license to e ng ag e in any

transac tion involvi ng blocked pr operty , please ref er to the licensingproce dures se t forth [in] . . . 31 C.F.R. Part 501." ). 471. Fr eedom of Speech The Court’s star

ting point in consideringKadi' s First Amendme nt claims must address the par ties' arguments over the pr oper a naly tical fra mework. The Gover

nment urg es intermediate scrutiny beca use EO 13,224 a

nd its im plementing regulations are c ontent-neutra l. Def.' s Supp. Mem. at 8 (c hara cter izi ng EO 13,224 as a "c ontent netura l regulation based on c onduct, not speec h") . Kadi, for

his part, asser

ts that strict scrutiny

applies bec ause EO 13,224 and the OF AC blocking order

infring e on his rig ht to make humanitaria n contributions thereby

suppressingthe “sy mbolic act of c ontributing.” See Opp’ n at 32 n. 27. He a lso relies on the Supreme Court’s

rec ent dec ision in Humanitarian L aw Projec t I V, 130 S. Ct. 2705 (2010), a ca se involving a challeng e to a statute, 18 U .S.C. § 2339B, banningthe provision of mater ial support to foreign terror ist orga

nizations (F TOs). 1 8 Intermediate scrutiny

has bee n applied in re viewingFirst Amendme nt challeng es “when the ‘re gulation . . . serves pur poses unre lated to the conte nt of expression.’” See I slamic Am. Relief Ag ency , 394 F. Supp. 2d at 52 (c iting Ward v. Rock Ag ainst Racism, 491 U.S. 781, 791 (1989))

. In other wor ds, intermediate sc rutiny is considere d the prope r test for so- called "c ontent-neutra l" r egulations, and “Gove rnment re g ulation of expressive ac tivityis contentneutra l so long a s it is ‘just ified without ref ere nce to the c ontent of the re g ulated spee ch.' " Emerg ency

Coalition t o Def

end Educ . Trave l v. U.S. Dept. of the Tr easur y , 545 F.3d 4, 12 ( D.C. Cir. 2008) (citingWard, 491 U.S. at 791. Whether a r egulation is content neutral “ cente rs on the

Although H umanitarian L aw Projec t was dec ided subsequent to the or igina l briefingin 1 8 the ca se, at the Court' s reque st, the parties provide d supplemental memora nda on whe ther that case altere d their positions as to which ty pe of sc rutiny

this Court shoul d apply . See Or der, ECF No. 52 (Jan. 17, 2012); Pl.'s Supp. Mem., ECF No. 53 (F eb. 6, 2012); De f.' s Supp. Mem.. ECF No. 54 (F eb. 6, 2012). 48purpose of the g overnme nt regulation, that is, whether the g overnme nt has adopted a reg ulation of spee ch bec ause of

disag ree ment with the messag e it convey s." I d. (interna l quotations and citations omitt ed). Under the test set forth in United States v. O' Br ien, 391 U.S. 367 (1968), g overnme ntal action passe s intermediate sc rutiny if (1) " it is wit hin the constitutional power of the Gover nment"; ( 2) " it furthers a

n important g overnme ntal interest" ; (3) the g overnme ntal interest is unrelated to the suppression of e x pression" ; and (4) " the incidental r estriction on alleg ed F irst Amendment fre edoms is no gr eate r than is essential to the f urthera nce of that interest." I d. at 377. The D .C. Circuit has expl ained that, “ [i ]n sum , ‘conte nt-neutra l regulations that have a

n incidental ef

fec t on First Amendment r ights will be uphe ld if they further ‘an important or substantial g overnme nt interest.’” Emerg ency Coalition t o Def

end Educ . Trave l, 545 F.3d at 12 (citing Walsh v. Bra dy , 927 F.2d 1229, 1235 ( D.C.Cir.1991)). Strict scrutiny

is a more e x actingstandard that applies to content-ba sed re g ulations of speec h. See R.A.V. v. St. Paul, 505 U.S. 377, 385-86 (1992). Whether stric t scrutiny applies depends on whether

the re g ulation was issued “to disfavor ce rtain messag es or idea s.” See Cablevision Sy s. Corp. v FCC, 649 F.3d 695, 717-18 ( D.C. Cir. 2011) (distinguishingbetwee n strict and interme diate scr utiny ). In order

for a content-ba sed re gulation to survive strict scrutiny , a statute must be nar

rowly tailored to adva

nce a compellingg overnme nt interest. FE C v. Wis consin Right to L ife, Inc., 551 U.S. 449, 464 (2007). Not many case s have c onsidered what level of scrutiny applies to First Ame ndment challeng es prompted by

SDGT desig nations and blockingorder s under EO 13,224 and its implementing r egulations. Howeve r, two ca ses in this jurisdi ction, prior to the Supreme Court's decision in Humanitaria

n L aw Projec t I V, conc luded that the appr opriate te st is int erme diate

49scrutiny . See Holy L and F oundation, 219 F. Supp. 2d at 81; I slamic Am. Relief Ag ency , 394 F. Supp. 2d at 52. Neither c ourt expli citly char acte rized EO 13,224 and the implementing regulations as content-ne utral, nor c hara cter ized the provisions as "r egulating c onduct" as the Gover nment sug g ests, but both cases ne verthe less conclude d that intermediate scrutiny applied to the same SDGT de signation reg ime and ty pe of bloc king or der that Kadi cha lleng es her e. B oth courts also re

jected outr ight the c laim that strict scrutiny applied, re asoningthat intermediate scrutiny applied whe re the funds at issue we re use d (or we re sought to be used) f or cha ritable a nd humanitarian a id, as opposed to funds used to make political contributions or to support any other for m of political speec h. See I slamic Am. Relief Ag ency , 394 F. Supp. 2d at 52-53 (distinguishingbetwee n restric tions on poli tical contributions, which mer it strict scrutiny , and char itable contributions, which do not); Holy L and F ound., 219 F. Supp. 2d at 81-82 n. 37 (" [C ]haritable contributions do not involve politi cal e x pression, and the ref ore do not wa

rra nt strict scrutiny ") ; cf. Citiz ens United v. F EC, 558 U.S. ----, 130 S. Ct. 876, 898 (2010) (" L aws that burden political spee ch ar e subjec t to strict scrutiny .") (interna l quotations and citations omitt ed). Both Holy

L and F oundation and I slamic Americ an Relief A g ency wer e af firmed on a

ppeal, but the D.C. Circuit did not ex plicitly addre ss which Fir st Amendment test applied. Instead, that court took a br oader

view, re asoningthat "the re is no constitutional rig ht to fund terror ism" and that "where an org anization is found to have supported ter rorism, g overnme nt actions to suspend that support are not unconstituti onal." I slamic Am. Relief Ag ency , 477 F.3d at 735; Holy L and Found., 333 F .3d at 165. Kadi cla ims that the rece nt decision by the Supreme Court in Humanitar ian L aw Projec t I V supports his view that strict scrutiny applies. That c ase involved a challeng e to 18 U.S.C. §

502339B, which imposes criminal pena lties for the provision of mate rial support to terr orist

org anizations. The plaintiffs in Humanitarian L aw Projec t I V soug ht to provide materia l support to two desig nated F TOs in the form of speec h. 130 S. Ct . at 2724. The suppor t at issue involved activities such as pr oviding tra ining to member s of the F TO on using law and political a dvocac y to resolve disputes and to ne g otiate pea ce a g ree ments. I d. at 2716-17. Unde r sec tion 2339B, “mater ial support” included impar ting a specific skill, or communicating a dvice “ derive d from specia liz ed knowledg e,” where as spee ch “[was] not barre d if it impart[ ed] only g ener al or unspecia liz ed knowledg e.” I d. at 2724. The Supre me Court observe d that while the mater ial support statute could be “ descr ibed as dire cted at conduct [,] . . . as applied to plaintiffs the conduct trig g eringcover ag e under the statute consists of communicating a messag e.” I d. The Court rea soned that “[p]l aintiffs wa nt to speak to the [FTOs], and whethe r they may do so under § 2339B de pends on what they say . I f plaintiffs’ spe ech impar ts a ‘spec ific skill’ or communicates a dvice de rived fr om ‘specia liz ed knowledg e’ - - then it is barre d . . . . [O] n the other ha nd, plaintiffs’ spee ch is not barr ed if it imparts only g ener al or unspec ialized knowledg e.” I d. at 2723-24. Ac cording ly , beca use the Supreme Court found that the mater ial support statute “re gulate[d] speec h on the basis of its content,” stric t scrutiny was the a pplicable test with respec t to the activities plaintiffs soug ht to undertake there . See id. Neve rtheless, the Supre me Court found that the mate rial support statute -- as applied to the ac tiviti es plaintiffs soug ht to undertake -- survive d strict scrutiny beca use the pre vention of terror ism was a compe lling g overnme ntal interest. I d. at 2730-31. More over, it found that 2339B w as nar

rowly tailored be cause even material support that wa s intended to “promot[e] peac eable , lawful c onduct . . . ca n further terror ism by

fore ign groups in multipl e wa y s . . . .

51[S ]uch support free s up other re source s within the org anization that may be put to violent ends.” I d. at 2725. A plura lity

of the Supreme Court, in finding that the statute w as nar rowly tailored, also relied on the fac t that the statute preve nted coor dinated advoc acy , rathe r than indepe ndent advoca cy . I d. More r ece ntly , and af

ter the Supre me Court decide d Humanitaria n L aw Projec t I V, the Ninth Circuit has applied strict scr utiny in consideringa cha lleng e under a diffe rent sec tion of EO 13,224, which pr ohibits Unit ed States per sons or persons located in the United States fr om providing contributions of servic es, g oods, or funds to a SDGT. See Al Har amain I I I , 2012 WL 603979, at * 27-28 (a ssessing E O 13,224 § 2(a )). That case conce rned “ pure spe ech” activities that a domestic non-pr ofit org anization sought to undertake on beha lf of a dome stic SDGT, including spe akingto the press throug h press c onfer ence s and pre ss relea ses, holding demonstrations, communicatingwith the Gover nment, and org anizing public educ ation activities. See id. at *27 & *31-32 (c hara cter izi ng activities as “pur e spee ch” a nd OFA C’s prohibitions of those ac tiviti es as “ content-ba sed”) . Howeve r, apa rt from similarly

adopting strict scrutiny

as the proper test, the Al Har amain I I Icourt distinguishe d Humanitaria n L aw Projec t I V, which it conclude d “involved wholly fore ign or g anizations curre ntly at war with a United States ally

. . . [and] specific evidenc e conc erningthe continuing terror ist activities of those org anizations and [t heir] ability

. . . to mis-use the support offe red by the plaintiffs.” I d. at *31. In contra st, Al Har amain I I Iinvolved an org anization that was a “ domestic branc h of an inter national org anization with li ttle evidence that the pure -spee ch ac tiviti es propose d . . . on behalf of the domestic branc h will aid the larg er inter national org anization's sinister purpose s.” I d. Henc e, althoug h both the Ninth Circuit in Al-Haramain I I Iand the Supre me Court in Humanitarian L aw Project IV applied strict sc rutiny , eac h took pains to lim it its holding to situations that are 52ultimately inapposite and inapplica

ble to Kadi' s claims. The Court there fore ag ree s with the Governme nt that intermediate sc rutiny is the appropr iate test her e. Simply put, Kadi complains that he is bar red f rom makingfinanc ial transfe rs to org anizations or individuals t hat have been de signated as SDGTs. He makes no claim that he se eks to donate to these entities or individuals for political rea sons, and he make s no claim that he se eks to eng ag e in any other a ctivities of the ty

pe that we re at issue in Humanitaria

n L aw Projec t I V or Al Ha rama in I I I . And applying inter mediate sc rutiny , the Court considers it beyond question that the Gover nment has the a

uthority to desig nate Ka di as a SDGT and to fre eze or block a ssets that fall under U.S. jurisdiction. S ee H oly L and F ound., 219 F. Supp. 2d at 82. I t is also bey ond dispute that blocking or fr eezingassets that may be used to support terror ists and/or terror ist activities furthers a n important g overnme nt interest -- “combating ter

rorism by underminingits financial base .” Holy L and F ound., 333 F.3d at 161 (citingHoly

L and F ound., 219 F. Supp. 2d at 81-82) . Moreove r, the de signation of Kadi as a SDGT and the bloc king of his assets mere ly

restric ts his abilit y

to make fina

ncial tra nsfer s to other SDGTs, not his ability to express his views ge nera lly . Any incidental re striction on alleg ed First Amendme nt free doms is no gre ater than is essential to the fur thera nce of the strong g overnme ntal interest. See H oly L and F ound., 219 F. Supp. 2d at 82 (“Mone y is fung ible, and the Gover nment has no mea

ns of ensuringthat even c haritable contributions to a terror ist org anization are a ctually

used for leg itimate purposes." ); see a lso Humanitarian L aw Projec t I V, 130 S. Ct . at 2725-26 (a dopting same principle in strict scr utiny analy sis). Kadi has no satisfactory

response to the arguments raised by the Gover

nment. He a lso has no g ood response to the pre- Humanitaria n L aw Projec t I V ca ses that applied inter mediate scrutiny or conc luded that there was no c onstitut ional rig ht to support terrorism. Instead, Ka di 53decla

res them inapposite be cause those courts " had alr eady deter mined that the non-movants [i .e., re cipients of the f

unds] provided support to terrorists" while such a judicia l finding is lackinghere . Opp' n at 33. B ut having now held that OF AC' s SDGT desig nation of Ka di is valid under the APA, that argument -- a nd the re asoningin Al-Har amain I I Iin relianc e on the lac k of evidenc e re g ardingorg anizational ties to terrorist ac tiviti es -- is no longe r ava ilable to Kadi. He provides no sound re ason to depa rt from the D .C. Circuit's cle ar instruc tions that there is no constitutional right to fund ter rorism and that, whe re a

finding has bee n made that a n entity or individual has supported terr orism, "g overnme nt actions to suspend that support are not unconstitutional." I slamic Am. Relief Ag ency , 477 F.3d at 735; Holy L and F ound., 333 F.3d at 165. Fur

thermore , even if

the Court found Humanitar ian L aw Projec t I V applica ble her e and applied strict scr

utiny revie w, the same result would still be reac hed. Given the sensitive interests of national security and for eig n aff

airs at stake , and bec ause a ll contributions to foreig n terror ist orga

nizations (re g ardle ss of any benig n intent) could fur

ther ter rorism, the Gove rnment has a c ompelling inter est in ensuringthat such support not rea ch these org anizations. S ee Humanitaria

n L aw Projec t I V, 130 S. Ct. at 2727 (noting its own conc lusions based on the evidenc e that all contr ibutions t o FTO s further terror ism, and stating that the E x ecutive’ s views

rea chingthe same c onclusion are “entitled to def ere nce” ). EO 13,224 a

nd its im plementing regulations prohibiting the fina ncial tra nsfer s Kadi see ks to make ar e nar rowly tailored to advanc e that compe lling g overnme nt interest, under the re asoningin Humanitarian L aw Projec t I V. B eca use money

is fung ible, even a llowing f or g ood-intentioned financ ial support to org anizations and individuals invol ved in terr orism would be problematic, as org anizations could fre e up other

resour ces to be used towar ds violent terrorist objec tives. I d. at 2725. In addition, 54EO 13,224 and the implementing r egulations construct a r eg ime that provides for the listing of a limit ed number

of SDGTs, per

mits entit ies and individuals to contest their desig nations, and allows the Gove rnment to delist individuals and entities and remove their SDGT desig nations. See id. at 2726 (r easoningthat the re striction was only on “ material

support coordinated with or under the direc tion of a designated fore ign te rror ist orga

nization”, which indicated that “Cong ress . . . [had] settled on a natura l stopping plac e” f or the re ache s of the statute) ( emphasis added) . This car efully

constructe d g overnme nt reg ime for de signating SDGTs, whic h takes into consideration the conce rns re g arding the fung ibilit y

of money

and re source s descr ibed above , satisfies the “na

rrowly tailored” prongof the strict scr utiny test. 2. Fr eedom of

Association Kadi’s f ree dom of association claim fare s no better. The Gover nment contends that Kadi' s desig nation was not base d on mere membership, but instead wa s based on his financ ial support of terr orist gr oups. Defs.' Mot. at 39. Kadi re sponds that he " is completely prohibited from makingcontributions, and thus barr ed fr om eng ag ing in a critica l form of a ssociational activity ." O pp' n at 34. He a lso argues that such a prohibition cannot be sustained " in the absenc e of a spe cific intent to fur

ther the or g anization's unlaw ful ends." I d. This Circuit comprehe nsively addre ssed this issue in I slamic Americ an Relief A g ency , and held that a

SDGT blockingorder

does not violate fr eedom of association bec ause it does not prohibit associational ac tivity ; rather , it targ ets the financ ial support of terr orism. 477 F.3d at 736-37; see a lso Humanitarian L aw Projec t I V, 130 S. Ct. at 2730-31 (aff irming r ejec tion of fre edom of a ssociation claim bec ause the materia l support statute did not penalize mere association, but instead prohibited the a ct of providingmateria l support). Moreove r, the D.C. Circuit has square ly

reje cted the " intent" r equire ment proposed by Kadi. I slamic Am. Relief 55Ag ency , 477 F.3d at 735-36 (re jectingargument that showing of intent was ne cessa ry and ag ree ing w ith other courts that intent to aid unlawf ul acts wa s inapplicable in the c ontext of donations to terrorist g roups " beca use the money

could be use d for unlaw ful ac tiviti es re g ardle ss of donor intent" ). So, too, here K adi was de signated primarily on the basis that he pr ovided fundingto terror ist orga

nizations . Henc e, his First Ame ndment fre edom of a ssociation claim is fore closed. E. F ourth Am endm ent Kadi cla ims that free zing or blockinghis assets "c onstitut e[s] an unre asonable sear ch and seizure without probable c ause." Compl. ¶ 71. He alleg es that " [d] efe ndants initially froze or blocked [Kadi' s] assets in October 2001, without rea sonable suspicion, proba ble ca use or wa rra nt and without specify

ing the ir rea sons for doingso." Compl. ¶ 69. He further asser ts that "[d]efenda

nts continue to fre eze or block [Kadi' s] assets withoutproviding him with the information in the administrative re cord upon which OF AC made its deter mination that [ Kadi] is a ' terror ist,' a

ny summary of the a lleg edly

' classified' information, or a ny specific ation of any char g es ag ainst him to which he might have re sponded." Compl. ¶ 70. Def endants a rgue that the F ourth Amendment is inapplicable to blocking a nd seizure order s of this nature. The y also contend that "blockingactions pursua nt to E.O. 13224 are per se

rea sonable unde r the F ourth Amendment a nd thus should not be subject to a ' probable cause ' standard or

war rant re quirement." Def

s.' Mot. at 45. Finally , defe ndants argue that blocking actions fa ll under the " specia l needs" exception to the warr ant and pr obable c ause r equire ments. As discussed above , subsequent to the initial briefingin this case Al Ha rama in I I Iwas decide d by

the Ninth Circuit. Al Hara main I I Ifound in rele vant par t that the Gover

nment had violated the F ourth Amendment rig hts of Al Har amain I slamic Founda tion, Oreg on (" AHI F56Ore g on")

. There , the Gover nment had also a

rgued that the spe cial nee ds exception to the 1 9

war rant a nd probable cause require ment under the Four th Amendment applied, a nd that the blocking order s, in any

event, we re per serea sonable. The Ninth Circuit rejec ted those arguments, and conc luded that OF AC violated AHI F- Ore g on' s Fourth Ame ndment rig ht to be fre e of unr easona

ble seizures. Al Ha

rama in I I I , 2012 WL603979, at * 25. The c ourt rea soned that the exigent c ircumstance s exception to the Fourth Amendme nt's w arr ant re quirement may have a pplied to the initial designation and blocking , but once the G overnme nt had blocked the assets to fore close a

ny asset flig ht conce rns, it could have obta ined a wa rra nt with respec t to the specific assets identified. I d. at * 23. The c ourt reje cted the G overnme nt's a rgument (also ra ised here ) that obtainingwar

rants would be unduly

burdensome or

impractica l. I d.; see a lso Defs.' Mot., Ex . B, D ecl. of

Adam J. S zubin ("Szubi n Dec l.") ¶¶ 19- 20. The Gove rnment urg es this Court not to foll ow the Ninth Circuit' s decision in Al Har amain I I I , but instead to adopt the appr oach of other district cour

ts in thi s jurisdiction in finding that blocking s of this nature do not constitute seizures. See, e .g ., Z arma ch, 750 F . Supp. 2d at 160; I slamic Am. Relief Ag ency , 394 F. Supp. 2d at 48; Holy L and F ound., 219 F. Supp. 2d at 78-79. Outside this jurisdiction, s ome cour ts have take n a diffe rent view , findingthat 2 0 blocking order s are "se izures" unde r the F ourth Amendment. See Al Har amain I I I , at * 24 n. 17

In light of the Gover

nment' s prior pronounc ement that, with the exception of one 1 9 district court, no cour

t had eve r held that the F ourth Amendment a pplied to such blockingorder s, see D efs.' Mot. at 42, the parties w ere g iven an oppor tunity to provide supplemental br iefingon what per suasive ef

fec t Al Hara

main I I Ishould have he re. I n those brief

s, the Gover

nment informed the Court that it had pe titioned for re hear ing e n banc, but subseque ntly the Ninth Circuit denied the r equest for rehe aringand issued an a mended opinion on Fe bruar y 27, 2012. The D.C. Circuit did not addre ss the Four th Amendment issue in I slamic Americ an 2 0 Relief Ag ency

and Holy L and F oundation beca

use neither a

ppeal involved a

challeng e to those ruling s. 57(dec lining to follow I slamic Am. Relief Ag ency and Holy L and F oundation); KindHea rts I , 647 F. Supp. 2d at 871-72 ( same). T his Court, as well, has expressed some r eluctanc e to find that, cate g orica lly , blocking order s could neve r be " seizures" under the Four th Amendment. See Tr

. 38:21-24. Howeve r, the Court nee d not resolve the issue, nor need it dec ide as a

g ener al matter whether blocking order s cate g orica lly fall within one of the e numerated exceptions to the Fourth Amendment wa

rra nt require ment. Even a ssuming that the blocking order at issue her e constituted a " seizure," havingalre ady conclude d above that OFAC' s decision to maintain the SDGT desig nation of Ka di was supported by substantial evidence , it follows that the blocking order was not issued unre asonably or without probable c ause. Indeed, the courts in I slamic 2 1 Americ an Relief A g ency

and Holy L and F oundation conclude d that beca use the Gove rnment had the authority

to issue the blocking order under I EEPA and EO 13,224, a nd beca use the c ourts had alre ady deter mined in eac h instance that OFAC' s decision to issue a blockingorder was not arbitra ry and ca pricious, the plaintiffs in those ca ses could not state a cognizable Fourth The Court does not sug g est that war rantless seizures in other

contexts, i ncluding 2 1 criminal ca ses, could be e x post facto supporte d by probable cause . Instead, the Supre me Court has re peate dly

instructed that the ultimate touchstone of the Four th Amendment re mains rea sonablene ss. See, e.g ., Kentucky v. King , 131 S. Ct . 1848 (2011) ( citing B rig ham City , Utah v. Stuart, 547 U.S. 398, 403 (2006)); Soldal v. Cook County , I ll., 506 U.S. 56, 71 (1992). As alre ady stated, this Court is hi g hly skeptical whe ther Ka di could even a ssert cla ims under the Four th Amendment, and Ka di has not argued per suasively that he has suf

ficient c onnections to raise suc h a cla im. See Ver dug o-Urquide z, 494 U.S. at 264-66; Al-Aqeel, 568 F . Supp. 2d at 70- 71. And, as the G overnme nt points out , it is not even c lear that requiring

a wa rra nt in this case would even ha

ve much e ffe ct, g iven that Kadi is a Saudi Ar abian c itiz en with substantial assets overse as. Ac cording ly , in this si tuation at least, g iven the substantial g overnme ntal interest in combatingterror ism, the Court's dete rmination that the continued fr eezingand blockingof Ka di's assets wa s proper , and the other conce rns addr essed in this Memorandum Opinion, " the safe g uard of

a wa rra nt would only

minimally

advanc e F ourth Amendment intere sts," to the extent Kadi even ha s any

Four th Amendment protec tions. S ee United States v. J acobse n, 466 U.S. 109, 125 (1984). 58Amendment cla im. See I slamic Am. Relief Ag ency , 394 F. Supp. 2d at 48; Holy L and F ound., 219 F. Supp. 2d 78-79. So, too, here , the Court has conc luded that substantial evidenc e in the administrative re cord suppor ts OFAC' s decision to block Kadi' s assets; hence , there was no Four th Amendment violation, either at the time of the initial blocking or as a r esult of the denia l of re considera

tion in March 2004. 2 2 Al Har amain I I Iis actually consistent with this ruling. The N inth Ci rcuit bala nced the interests of a

domestic org anization to be free from blockingorder s, and re asoned that "the number of de signated per sons located within the United States a ppear s to be very

small. The

war rant re quirement will there fore be re levant in only a fe w ca ses." Al Har amain I I I , 2012 WL 603979 at * 23. The c ourt, in fac t, expl icitly stated: " We addre ss only the fa cts of this case : OFA C's se izure of assets of a United States entity

located w ithin the United States. W e do not addre ss the require ments under the F ourth Amendment for other situations including, f or example, desig nations of fore ign e ntities or desig nations by executive orde r." I d. at * 25 n. 18. Her e, of c ourse, a

fore ign e ntity

/individual was desig nated pur suant to EO 13,224. Given these limit ations as stated by

the Ninth Circuit, confiningits holdi ng to circumstanc es not prese nt in this case, Ka di's r eliance on Al Har amain I I Iis unpersuasive. Moreove r, the Gove rnment' s conce rns about the pr actica bility of obtainingwar

rants see m

Even a ssuming that ther e wa s a F ourth Amendment violation, it is not entirely clea r 2 2 what re medy

Kadi would have beyond a re view as to whe ther the se izure was supported by probable cause . In Kindhear ts for Charitable Humanitaria n Deve lopment, I nc., 710 F . Supp. 2d 637, 648-49 (N.D . Ohio 2010) (" Kindhear ts I I ") , the cour

t, after finding a F ourth Amendment violation in the blocking of assets pendinginvestigation, rejec ted a c laim that the proper reme dy was the r eturn of a ssets. I nstead, it conc luded that a post-hoc showing of proba ble ca use would reme dy the Four th Amendment violation. I d. at 650, 652. In the interim, the g overnme nt could continue the f

ree ze on the org anization's a ssets. I d. at 652. That c ourt corr ectly observe d that the scope of the Four th Amendment was " more limited in the context of foreig n relations and national sec urity

than in ty pical cr iminal investigations and a dminist rative a ctions." I d. at 647.

59well-founde d. See Szubin Decl. ¶ 20 (" Injectinga re quirement that a mag istrate judg e re view the evidentiar y memorandum a

nd issue a wa

rra nt before eac h blocking can g o forwa rd could signific antly

prolongand under

mine the designation proce ss, curtailingOFA C's a bility to take immediate ac tion . . . and incre asingthe risk that assets may be exported to dang erous a ctors abroa d.")

. Given the c oncer ns raised by

the Gover

nment in securingwar

rants, this Court would be re luctant to apply

Al Har amain I I Ito the prese nt situation, where the de signa ted per son is a fore ign national, with significa nt oversea s ties and assets. F or all these r easons, Ka di's F ourth Amendment cla im will be denied. F . Vagueness and O verbre adth In Counts S ix and Seven, K adi asser ts that the SDGT designation violated his First and Fifth Ame ndment rig hts beca use the de signation criteria a re unc onstitut ionally

vague and overbr oad, both on their fa ce a nd as applied to him individually . Compl. ¶¶ 72-76. Count Si x maintains that the EO 13,224 cr iterion " otherwise a ssociated with" other de signated per sons or entities allows desig nation "w ithout reg ard to the c hara cter or intent of the a ssociation or support." Compl. ¶ 73. Kadi conte nds that his CountSix challeng e to " otherwise a ssociated with" e ncompasses a

challeng e to the ter

ms "mate rial support" and " service s," which ar e incorpora ted by ref ere nce into the de finition of "other wise assoc iated with." See Opp' n at 36-37 (citing31 C.F.R. § 594.316(b)) . Count S even a sserts that I EEPA, EO 13,224, and the implementing r egulations suffer from vagueness a

nd overbr eadth f

laws " beca

use they do not define such cr itical terms as ' terror ist orga nization', ' specia lly

desig nated g lobal terror ist' or ' any other ter m relate d to terror ism'" Compl. ¶ 75; Opp' n at 40. The c omplaint does not indicate which spec ific provision of I EEPA Kadi is cha lleng ing he re. Pre sumably , he cha lleng es the languag e in Sections 1(c) and (d) of EO 13,224, whic h authorize the designation of per sons who 60provide va rious kinds of support for " acts of te rror ism." The r egulatory languag e at issue is appar ently

in 31 C.F.R. § 594.310, which def ines a SDGT a s "a

ny fore ign pe rson or pe rsons listed in the Annex or designated pursuant to Executive Orde r 13224 of Septembe r 23, 2001." The Supreme Court has instructed that a statute is unconstituti onally overbr oad only wher e the ove rbre adth is "substantial . . . re lative to the statute' s plainly leg itimate sweep." United States v. Wil liams, 553 U.S. 285, 292-93 (2008). More over, " [i ]nvalidation for overbr eadth is ' strong medicine' that is not to be casually employ ed." I d. at 293 (interna l quotations and citations omitted). A law that doe s not reac h constitutionally protec ted conduc t, and ther efor e passe s muster under the overbr eadth test, may still be cha lleng ed on g rounds that it is unduly vag ue in violation of due proc ess. See Villag e of H offman E states v. Flipside, 455 U.S. 499, 497 (1982). Howe ver, a law is unconstitutionally vague on its fac e only

if it is "imper missibl y vague in all its applications." I d. The Supreme Court has instructed that law s must "g ive the per son of ordinar y intelligenc e a r easona

ble opportunity

to know what is prohibited, so that he may act a ccor dingly ." I d. at 498. L aws must also " provide e x plicit standards f

or those who a

pply them" to pr event " arbitra ry and discriminatory

enfor ceme nt." I d. "[G]reate r tolera

nce" is give n to "e nactments with civil rathe r than c riminal penalties bec ause the conseque nces of

imprecision ar e qualitatively less sever e." I d. at 498-99; see also Kindhea rts I , 647 F. Supp. 2d at 889. I f, howe ver, a law thre atens to inhibit the ex erc ise of constitutionally protec ted rig hts, such as the rig ht of fre e spee ch or of association, then " a more stringe nt vagueness test should apply ." V illage of Hoff man Estates, 455 U.S. at 499. B ut, stil l, a plaintiff who " eng ag es in some conduc t that is clearly proscr ibed ca

nnot complain of the va g ueness of the law as a pplied to the conduct of

others." I d. at 495. Although K adi' s complaint mounts both vague ness and ove rbre adth cha lleng es to I EEPA 61and EO 13,224, he focuse s on vagueness a nd does not rea lly

addre ss the overbr eadth c laims, nor does he r espond to the Gove rnment' s arguments on overbr eadth. He nce, the Court will focus here on Kadi' s vagueness a rguments as well. Even if Ka di had deve loped his overbr eadth 2 3 arguments, his claim would fail bec ause I EEPA and EO 13,224 ha ve a pla inly

leg itimate sweep - - to preve nt terror ist attacks by fore closing financ ial and other support to terror ists and terror ist org anizations. S ee G lobal Relief F ound. v. O' Neill , 207 F. Supp. 2d 779, 805-06 (N .D. I ll. 2002), af f' d on other g rounds , 315 F.3d 748 ( 7th Cir. 2002) (re jectingclaims that EO 13,224 is overbr oad bec ause it " g overns f inancial a rra ng ements and othe r ty

pes of c onduct" to "pr event additional terror ist attacks" and " its effe cts on speec h, if any , are incidental" ). More over, "[I EEPA] i s desig ned to g ive the President mea ns to control assets that could be used by enemy aliens." Global Relief F ound., 315 F.3d a t 753; see also Holy

L and F ound., 333 F.3d a t 162-63 (citingwith approva l the Seventh Circuit' s rea soning in Globa l Relief Founda tion that the Ex ecutive B ranc h has authority to define pr operty

interests broa dly

in the context of I EEPA and EO 13,224). 1. "O therwise A ssociated With" Kadi ar g ues that the provision of EO 13,224 allowing desig nation on the basis that one is "othe rwise a ssociated with" another SDGT is impermissibl y

vague bec ause it " could enc ompass First Amendme nt protecte d speec h and assoc iation." Opp' n at 36-37. He c ontends that EO 13,224 permits persons who ha ve neve r eng ag ed in or supporte d terror ism or terror ist acts to be

Kadi ar g ues for

the first time in his opposit ion brief that I EEPA itself is 2 3 unconstitutionally

vague bec ause it g rants the Pre sident "virtua lly limit less" a

uthority to desig nate a

n individual as a g lobal terrorist. Opp'n at 39. This point was not raised in his complaint; acc ording ly , he is fore closed fr om raising it for the first time throug h an opposition brief. Mor eover , the claim is unava iling bec ause the President' s authority to desig nate individuals pursuant to I EEPA is well-established. 62desig nated ba sed on mere "a ssociation" w ith or "suppor t" of a SDGT. The Gover

nment, for its part, re sponds that Kadi' s challeng e has be en mooted by the new de finition of "other wise associate d with" at 31 C.F.R. § 594.316(b). Kadi counte rs that OF AC' s 2007 definition of 2 4 "othe rwise a ssociated with" had not bee n promulg ated at the time of Kadi' s desig nation. Opp' n at 37 n. 34. In addition, although K adi ac knowledg es that the ter m "other wise assoc iated with" has been subse quently

define d in the regulations, he maintains that the newly define d phrase rema ins constitutionally

infirm beca

use the ter

ms incorporated within the new de finition -- specif ically , "material support" and " service s" - - ar e themselve s impermissibly vague bec ause no showing of knowledg e or intent that the suppor t or servic es we re dire cted to a de signated entity is require d. Opp' n at 38-39. Kadi' s challeng e to the ter m "other wise assoc iated with" -- includingthe incorpor ated terms " materia l support" a nd "se rvice s" - - fa ils. As an initial matter, Kadi ca nnot bringa fa cial vagueness c halleng e to these te rms beca use the ba sis for his desig nation was his financ ial support to other SDGTs -- conduct that is " clea rly proscr ibed" under the law. See V illage of Hoff man Estates, 455 U.S. at 495 (a plaintiff who " eng ag es in some conduc t that is clearly proscr ibed cannot c omplain of the vagueness of the law a s applied to the conduc t of others" ). B ut even if he could ra ise a fa cial cha lleng e to EO 13,224, the ne wly define d term, promulg ated at 31 C.F.R. §

The Gove rnment also urg es that bec ause summar y judgme nt is not being soug ht on the 2 4 basis of Ka di's de signation under the " otherwise a ssociated with" criter ion, the Court need not consider K adi' s challeng e to that term. See Def s.' Mem. at 53; see a lso Reply at 37 (" I t is clear that Kadi wa s desig nated f or providing financial

support, so the Court need not a nd should not consider whether

the terms " materia l support" or "se rvice s" mig ht be unconstitutionally applied to another pa

rty .") (empha sis added). The Marc h 2004 OFA C Memorandum ce rtainly does foc us on Kadi' s financia l support of terr orism. Sti ll, OFAC empha siz es that it took a " totality of the circ umstances" approa ch to designatingKadi. Ar g uably , then, this encompasse s other for ms of "suppor t" be y ond financ ial support, althoug h the Court ag ree s that financia l support is the primary rea son for the de signation. 63594.316(b), r emedies a ny defic iencies that might have exis ted. The te rm " otherwise a ssociated with" is now de fined to mea n: (a) [t ]o own or control; or (b) [t] o attempt, or to conspire with one or more persons, to ac t for or on behalf of or to provide financ ial, materia l, or technolog ical support, or financ ial or other se rvice s, to. The district cour

t in Kindhearts I

reje cted a

simil ar c halleng e in the conte x t of EO 13,224 and the implementingregulations relatingto the desig nation of SDGTs. See Kindhear ts I , 647 F. Supp. 2d at 893-96. That cour t rea soned that the phra se " otherwise a ssociated with" had bee n clar ified by

the newly

adopted de finition and, in any event, limited any

applicability

the phra se might have to protecte d speec h and conduc t. I d. at 896. I t further stated that neither

"material support" nor

"se rvice s" a s used in the def inition of "otherw ise associa ted with" r ender ed the ter m unconstitutionally

vague. I d. Moreove r, in reje cting an attac k on "material support" and its underlying te rms on vagueness grounds, the Supreme Court in Humanitarian L aw Projec t I V

rea soned that " a per son of ordinar y intelligenc e would under stand the term ' service ' to cover [t he activities] performe d in coordination with, or at the dir ection of, a fore ign te rror ist orga

nization." See 130 S. Ct. at 2722. The cour ts that have a ddresse d vagueness a nd overbr eadth c halleng es to the term " otherwise a ssociated with" have ultimately reje cted them. See Al Har amain I , 585 F. Supp. 2d 1233, 1267, 1270 (D. Ore . 2008) (r ejec ting ove rbre adth cha lleng e to " otherwise associate d with" phr ase) ; Humanitarian L aw Projec t I I , 484 F. Supp. 2d at 1106-07 ( reje cting overbr eadth c halleng e to " otherwise a ssociated with" and embe dded ter m "se rvice s" ) ; see a lso Humanitaria

n L aw Projec t I I I , 578 F.3d at 1145 n. 10, 1148 (aff irming district c ourt' s decision on "othe rwise a ssociated with" and re jectingchalleng e to " service s")

. The c ase is eve n more c ompelling he re, where Kadi' s conduct involves providing

64financ ial support to desig nated e ntities and individuals. S ee H umanitarian L aw Projec t I I I , 578

F.3d at 1148 (" As [EO 13,224] is not aimed at speec h and does not c over a substantial amount of it, the ban on " service s" to SDGTs is not fac ially overbr oad." ). Althoug h Kadi cla ims that basing a desig nation on being"othe rwise a ssociated with" other SDGTs could include F irst Amendment prote cted spe ech a nd association and that "se rvice s" could encompa ss activities that

are pure spe ech or

advoca cy , no such ac tiviti es ar e at issue he re. A s previously discussed, it is clea r fr om Kadi' s complaint that he does not cla im that he has soug ht to eng ag e in those kinds of activities, but was for eclose d or chilled fr om doing so. As the G overnme nt points out , the term "othe rwise a ssociated with" applies to specif ic ty pes of c onduct beyond mere association, and the basis for Ka di's de signation is focused on the provision of f inancial support to SDGTs and terror ist orga

nizations . Henc e, his vagueness c halleng e to the ter m "other wise assoc iated with" cannot suc cee d. 2. "SDGT ," " Terr orist Org anization," and " Any Other Te rm Related to Te rror ism" Kadi' s challeng es on vagueness grounds to the terms " SDGT," "te rror ist orga nization" and, as a catc h-all, " any

other ter m relate d to terror ism" ar e eve n more attenuated. He arg ues that the I EEPA, EO 13,224, and the implementing r egulations are va g ue both on their fa ce a nd as applied to him, beca

use they fail to define these ter

ms. Opp' n at 39. His cha lleng e is unpersua sive. Kadi is wrongthat the re g ulations fail to define the se terms. The term " SDGT" is defined at 31 C.F.R. § 594.310(b) to mea n "a ny fore ign pe rson or pe rsons listed in the Annex or desig nated pur suant to Ex ecutive O rder 13224 of September

23, 2001." T he ter

m "ter rorism" is

65define d at 31 C.F.R. § 594.311 and include s specific acts c onstitut ing te rror ism. Moreove r, 2 5 Kadi' s argument that the Court should find impermissibl y vague " any

other ter m relate d to terror ism" ca sts too wide a net for the Court to seriously

consider it. Ka di responds that the definition of SDGT at § 594.310(b) does not cure the vagueness pr oblem beca use it is circuitous and self- ref

ere ntial -- that is, " the only way to know with cer

tainty what qualifie s as a [SDGT] i s for OF AC to designate an individual or e ntity as an SDGT." Opp' n at 40. B ut Kadi' s contention identifies no def

iciency in the definition, and at lea st one court ha s rejec ted a similar ar g ument. See Humanitar ian L aw Projec t, 463 F. Supp. 2d at 1065-66 (r easoningthat the terms " specia lly desig nated g lobal terror ist" and " specia lly desig nated ter

rorist g roup" are "nothingmore than shorthand for

g roups or individuals desig nated unde r the EO" and henc e ar e not vague). Acc ording ly , this vag ueness c halleng e fa ils as well. G. Bill of Attaind er Finally , Kadi conte nds that E.O. 13,224 violates his constitutional rights as a bill of attainder "on its fa ce a

nd as applied" beca

use " EO 13,224 inflicts punishment without requiring an ade quate a

nd independe nt tribunal to determine a SDGT' s g uilt and takes aw ay the life, liberty or prope rty

of a pa rticular na

med or e asily

asce rtainable person or

g roup of pe rsons." Compl. && 77-78. In essenc e, this claim is made under the bill of attainder c lause. See U.S. Const. Art. I , §

The ter m "ter rorism" means a

n activity that: 2 5 (a) Involves a violent ac t or an a ct dang erous to human life , proper ty , or infrastruc ture; and (b) Appe ars to be intende d:

(1) To intimidate or c oerc e a c ivilian population; (2) To influe nce the policy of a g overnme nt by

intimi dation or coe rcion; or (3) To a ffe ct the conduc t of a g overnme nt by mass destruction, assassination, kidnapping , or hostag e-taking. 31 C.F.R. § 594.311. 669. Howeve r, the Court finds that this claim must be dismis sed bec ause ( 1) the bill of attainder 2 6 clause does not apply

to acts take n by

a re g ulatory

ag ency and (2) even if

it did, the clause is not trig g ere d here , beca

use there was no a ction constituting " punishment." 1 8 As far as this Court is aware , no case has held that a bill of attainder c laim can be maintained on a SDGT desig nation. The district cour t in Global Relief Foundation set forth a compre hensive a

nd persua sive ana ly sis of a bill of attainder claim broug ht by

a SDGT a

nd reje cted it on two sepa

rate g rounds: (1) the Constitution's prohibition ag ainst bills of attainder applies only

to leg islative acts, " not to regulatory actions of a dminist rative a g encie s"; a nd (2) neither the desig nation of a pe rson as a SDGT nor the blockingof asse ts constitutes "punishment." Global Relief F ound., 207 F. Supp. 2d at 798-800. The Seve nth Circuit affirme d and summarily

reje cted the bill of attainder c laim. See Global Relief F ound., 315 F.3d at 755 (" Application of the I EEPA is not a bill of attainder; implementation of the statute is in the hands of the Executive and Judicial Br anche s, while a bill of attainder is a dec ision of guilt made by the L eg islative Br anch." ) (c iting United States v. L ovett, 328 U.S. 303, 315 (1946)). The D.C. Circuit has not expl icitly

addre ssed whethe r a SDGT de signa tion or blocking of asse ts constitutes a bill of attainder , but one district court in this jurisdiction has held that, with respec t to an analog ous desig nation (" specia lly designated na

rcotics tra fficke rs" ), a bloc king or der issued by OFA C did not constit ute a bill of attainde r. See Cooper ativa Multiactiva de Empleados de Distribuidores de Dr og as v. Ne wcomb, C.A. No. 98-0949, slip op. at 10 (D .D.C. Mar. 29, 1999),

Kadi' s complaint, howeve r, alleg es his bill of attainder c laim as a violation of his First 2 6 Amendment rig hts. See Compl. && 77-78. Moreove r, as this Court has alre ady stated, it is not even clea r that Ka di, as a non- 1 8 resident a lien whose c onnections to the United States ar e in question, could eve n raise this cla im. 67aff

' d on other g rounds, 221 F.3d 195 ( D.C. Cir. 2000) (table) . The c ourt found that the prohibition on bil ls of attainder applies only

to "leg islative" a ctions, but rested its holding primarily on the " punishment" e lement. I d., slip op. at 10-12. I t is clear that OFAC' s desig nation or blockingorder

does not involve the " punitive confiscation of proper ty ," but instea d further s leg itimate purposes by

preve nting ter

rorist ac tiviti es. Ka di neither a lleg es nor de monstrates that he has be en desig nated " for a ny rea son but to curb ac tiviti es consider ed to be ha rmful to national interests." I d., slip. op. at 12 (citing B ell South C orp. v. F CC, 144 F.3d 58, 67 (D.C. Cir. 1998)). Kadi' s claim that EO 13,224 is a bill of attainder thus has no merit. III. Kadi's Motions to Am end the Com plain t and f or Rule 56(f) discovery Kadi has f

iled two motions, a moti on to amend the c omplaint and a motion for Rule 56(f ) discovery . He se eks to asser t an additional ca

use of a ction under B ivens v. Six Unknown Named Ag ents of the F ed. B urea

u of Na rcotics, 403 U.S. 388 (1971) , for violations of the F irst, Fourth, and F ifth Amendments and to name additional defe ndants. Howe ver, ha ving de termined that Kadi' s constitutional claims fail in their entirety , amendment of the complaint at this point to allow Kadi to ra ise Bive ns claims ag ainst defe ndants in their individual capa cities for constitutional viol ations would be futile. James Madison L td. by Hec ht v. Ludwig , 82 F.3d 1085, 1099 (D.C. Cir. 1996) (" Courts may deny a motion to amend a c omplaint as futile . . . if the proposed c laim would not survive a motion to dism iss."); see also Foma n v. Davis, 371 U.S. 178, 182 (1962) ( listi ng "f

utilit y of ame ndment" a s a re ason for not gr anting leave to amend). The Court has alre ady

denied Ka di's motion for Rule 56( f) discove ry with respec t to the APA claim. Havingnow consider ed and r ejec ted all of Ka di's c onstitut ional claims as we ll, the Court finds that the Rule 56(f) claim with respe ct to discovery on those co nstitutional claims must also fail.

68CONCLUSION

For the fore g oing r easons, the Court will g rant the de fenda nts' motion for summar

y judgme nt in its entirety

and will deny

Kadi' s motion t o amend his complaint and f or Rule 56(f) discovery . A sepa

rate order acc ompanies this memorandum opinion.

SO ORDERED

. /s/ J OHN D. B ATES United States District J udg e

Dated: Ma

rch 19, 2012

69