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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 2, 2004 Decided July 9, 2004

No. 01-1480

NATIONAL COUNCIL OF RESISTANCE OF IRAN,

PETITIONER

v.

DEPARTMENT OF STATE AND

COLIN L. POWELL, SECRETARY OF STATE,

RESPONDENTS

On Petition for Review of Orders of the

Department of State

Paul F. Enzinna argued the cause and filed the briefs for

petitioner. Martin D. Minsker entered an appearance.

Douglas Letter, Litigation Counsel, U.S. Department of

Justice, argued the cause for respondents. With him on the

brief was Peter D. Keisler, Assistant Attorney General.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Before: HENDERSON, GARLAND, and ROBERTS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge ROBERTS.

ROBERTS, Circuit Judge: This is the fourth in a series of

related cases concerning the biennial designations by the

Secretary of State of the Mojahedin-e Khalq Organization

(MEK)1

 and its aliases as a foreign terrorist organization

(FTO). See People’s Mojahedin Org. of Iran v. Dep’t of

State, 182 F.3d 17 (D.C. Cir. 1999) (PMOI I); National

Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192

(D.C. Cir. 2001) (NCRI); People’s Mojahedin Org. of Iran v.

Dep’t of State, 327 F.3d 1238 (D.C. Cir. 2003) (PMOI II); see

generally 8 U.S.C. § 1189. In 1999, and again in 2001, the

National Council of Resistance of Iran (NCRI) was determined by the Secretary of State to be an alias of MEK and

was accordingly also designated an FTO. See 1999 Designation, 64 Fed. Reg. at 55,112; 2001 Redesignation, 66 Fed.

Reg. at 51,089. In May 2003, after a remand to cure certain

due process deficiencies, see NCRI, 251 F.3d at 208–09, the

Secretary decided to leave in place the 1999 and 2001 desig1 The Mojahedin-e Khalq translates into English as People’s

Mojahedin. [AR268] The Mojahedin-e Khalq Organization (MEK)

is known in English as the People’s Mojahedin Organization of Iran

(PMOI). Our prior decisions have variously referred to the Mojahedin-e Khalq as MEK, People’s Mojahedin of Iran, and PMOI.

Compare PMOI I, 182 F.3d at 20 (‘‘the People’s Mojahedin Organization of Iran — the MEK, for short’’), with NCRI, 251 F.3d at 197

(‘‘petitioner People’s Mojahedin Organization of Iran (‘PMOI’)’’).

To limit confusion, wherever possible we will use the terms Mojahedin-e Khalq and MEK, and, except in case names, not the terms

People’s Mojahedin or PMOI. We adopt this convention because it

is the Mojahedin-e Khalq Organization that the Secretary has

designated as a foreign terrorist organization. See Designation of

Foreign Terrorist Organizations, 62 Fed. Reg. 52,650 (Oct. 8, 1997)

(1997 Designation); Designation of Foreign Terrorist Organizations, 64 Fed. Reg. 55,112 (Oct. 8, 1999) (1999 Designation); Redesignation of Foreign Terrorist Organizations, 66 Fed. Reg. 51,088,

51,089 (Oct. 5, 2001) (2001 Redesignation); Redesignation of Foreign Terrorist Organizations, 68 Fed. Reg. 56,860, 56,861 (Oct. 2,

2003) (2003 Redesignation).
3

nations of NCRI as an FTO. NCRI now again petitions for

review. After reviewing NCRI’s arguments, the entirety of

the administrative record, and certain classified materials

appended to that record, we conclude that the Secretary’s

latest designation complied with the governing statute and all

constitutional requirements. We therefore deny the petition

for review.

I.

The Anti-Terrorism and Effective Death Penalty Act of

1996 (AEDPA) empowers the Secretary of State to designate

an entity as an FTO whenever the Secretary determines that

(1) the entity is foreign; (2) it engages in terrorist activity;

and (3) the terrorist activity threatens the security of the

United States or its nationals. 8 U.S.C. § 1189(a)(1). A

designation as an FTO persists for two years, after which the

Secretary may redesignate the entity as an FTO for a succeeding two-year period upon finding that the statutory circumstances still exist. Id. § 1189(a)(4)(B).

An FTO designation visits serious consequences on the

affected organization: The Secretary of the Treasury may

require financial institutions to freeze any assets of the FTO,

id. § 1189(a)(2)(C); the members and representatives of the

FTO become ineligible to enter the United States, id.

§ 1182(a)(3)(B)(i)(IV), (V); and anyone who knowingly provides ‘‘material support or resources’’ to the FTO — including

any donation of money — may be prosecuted and imprisoned

for up to fifteen years, 18 U.S.C. § 2339B(a)(1). The manifest purpose of these provisions is to deny terrorist organizations support — financial or otherwise — in and from the

United States. See H.R. REP. NO. 104-383, at 43–45 (1995)

(House Report on AEDPA’s primary predecessor bill).

Despite these serious consequences of designation, the

governing statute affords suspect entities only ‘‘truncated’’

participation in the administrative process leading to the

designation and ‘‘quite limited’’ judicial review after the fact.

NCRI, 251 F.3d at 196. As we noted in PMOI I, ‘‘unlike the

run-of-the-mill administrative proceeding,’’ ‘‘there is [under
4

AEDPA] no adversary hearing, no presentation of what

courts and agencies think of as evidence, [and] no advance

notice to the entity affected by the Secretary’s internal

deliberations.’’ 182 F.3d at 19. Once the Secretary has

designated an entity an FTO, the statute directs us to ‘‘hold

unlawful and set aside a designation’’ only if we find it to be:

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or

immunity;

(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;

(D) lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court [ex parte and in camera], or

(E) not in accord with the procedures required by law.

8 U.S.C. § 1189(b)(3). Although the statute permits this

court to base its review either ‘‘solely upon the administrative

record’’ ‘‘taken as a whole,’’ or as supplemented by any

classified information submitted by the Secretary, the Act

makes no provision for the disclosure of that classified material to the designated entity. See id. § 1189(b)(2), (3)(D); see

generally 28 C.F.R. pt. 17 (governing access to classified

national security information).

In 1997, and every two years since, the Secretary has

designated MEK an FTO. See 1997 Designation, 62 Fed.

Reg. at 52,650; 1999 Designation, 64 Fed. Reg. at 55,112;

2001 Redesignation, 66 Fed. Reg. at 51,089; 2003 Redesignation, 68 Fed. Reg. at 56,861. Starting in 1999, the Secretary added NCRI to the list of designated FTOs, having

concluded that NCRI was an alias of MEK. See 1999 Designation, 64 Fed. Reg. at 55,112 (‘‘I hereby designate TTT the

following organization as a foreign terrorist organization: TTT

Mujahedin-e Khalq Organization TTT also known as National

Council of Resistance, also known as NCR.’’). NCRI now, for

the second time, seeks review of that designation. In NCRI’s

previous challenge — brought jointly with MEK — we con-
5

cluded that both the 1999 designation of MEK as an FTO and

the designation of NCRI as an alias of MEK satisfied the

requirements of the statute. Specifically concerning NCRI,

we held — based on the record then presented to us by the

Secretary — that the Secretary’s conclusion that NCRI was

an alias of MEK ‘‘does not lack substantial support and TTT is

neither arbitrary, capricious, nor otherwise not in accordance

with law.’’ NCRI, 251 F.3d at 199.

As a constitutional matter, however, we determined that

the procedures afforded by the statute and employed by the

Secretary in arriving at those designations violated both

organizations’ due process rights. See id. at 208–09. We did

not vacate the Secretary’s designation as to either MEK or

NCRI, but remanded to the Secretary with instructions that

each entity be afforded the opportunity to: (1) respond to any

part of the Secretary’s administrative record that is not

classified material; (2) file evidence on its own behalf; and (3)

be meaningfully heard by the Secretary. Id. at 210.

Both MEK and NCRI availed themselves of these opportunities. NCRI submitted voluminous materials that purported

to demonstrate that it was sufficiently independent of MEK

that it could not be considered an alias of that organization.

On September 24, 2001, the State Department informed MEK

and NCRI that the Secretary had decided to leave the 1999

designation of MEK in place but that ‘‘no such determination

regarding the NCRI as an alias of the MEK is possible at

this time.’’ Letter of Ambassador Francis X. Taylor, Coordinator for Counterterrorism, U.S. Dep’t of State, at 2 (Sept.

24, 2001). This was shortly followed, on October 5, 2001, by

the Secretary’s redesignation of both MEK as an FTO and

NCRI as an alias of MEK. See 2001 Redesignation, 66 Fed.

Reg. at 51,089. At that time, the State Department assured

NCRI that although ‘‘the present situation TTT requires continued designation of [NCRI] as an alias of MEK for now,’’

upon the completion of review of NCRI’s submissions, ‘‘the

Secretary will make a de novo determination in light of the

entire record, including the material you have submitted.’’
6

Letter of Ambassador Francis X. Taylor, Coordinator for

Counterterrorism, U.S. Dep’t of State, at 1 (Oct. 5, 2001).

Nearly a year later, the State Department provided for

NCRI’s review additional materials obtained by the FBI in

the course of ‘‘its long-running investigation of the MEK and

NCRI.’’ Letter of Ambassador Francis X. Taylor, Coordinator for Counterterrorism, U.S. Dep’t of State, at 1 (Sept. 4,

2002). Within two months, NCRI submitted its response.

See Letter of Paul F. Enzinna, Esq. (Nov. 1, 2002). In May

2003, the State Department completed its review process and,

on May 24, the Secretary decided to leave in place the 1999

and 2001 ‘‘designations of the National Council of Resistance

(NCR) and the National Council of Resistance of Iran

(NCRI) as foreign terrorist organization aliases of the Mujahedin-e Khalq (MEK).’’ Action Mem. from William Pope &

William H. Taft, IV to the Secretary of State, at 3 (May 22,

2003) (Action Mem.). NCRI now petitions for review of this

latest decision.

II.

NCRI’s primary argument is that the Secretary’s conclusion that NCRI is an alias of MEK lacks substantial support

in the administrative record. NCRI insists that it is an

umbrella organization of Iranian dissident persons and groups

of which MEK is only a single member, no more powerful

than any other. In addressing this contention, we begin with

our earlier holding in this action. In NCRI, we concluded —

based on the record then presented to us — that the Secretary’s designation of NCRI as an alias of MEK ‘‘does not lack

substantial support and TTT is neither arbitrary, capricious,

nor otherwise not in accordance with law.’’ 251 F.3d at 199.

Although that decision is obviously not determinative of the

question before us today — we are now reviewing a record

that has since been supplemented both by the Government

and NCRI — its holding must nevertheless inform our decision here. Logically, NCRI’s challenge can succeed only if

the new record materials establish its independence from

MEK so that we can no longer affirm that ‘‘the Secretary, on
7

the face of things, had enough information before [him] to

come to the conclusion’’ that NCRI is an alias of MEK. Id.

Having reviewed the supplemented administrative record as a

whole and the classified information appended to it, we conclude that NCRI has not met this burden.

To explain our decision, we must first review what it

means — in the very particular context of AEDPA — for one

organization to be an alias of another. On its previous

appeal, NCRI argued that the Secretary lacked authority

under AEDPA to designate an entity an FTO based on a

finding that it was an alias of another designated FTO. See

id. at 200. We rejected that contention, finding that the

grant of authority to designate FTOs ‘‘implies the authority

to so designate an entity that commits the necessary terrorist

acts under some other name.’’ Id. In so doing, we used a

mathematics metaphor — specifically, the transitive property — to describe the alias concept: ‘‘Logically, indeed mathematically, if A equals B and B equals C, it follows that A

equals C. If the NCRI is the [MEK], and if the [MEK] is a

foreign terrorist organization, then the NCRI is a foreign

terrorist organization also.’’ Id.; see also id. (‘‘If the Secretary has the power to work those dire consequences on an

entity calling itself ‘Organization A,’ the Secretary must be

able to work the same consequences on the same entity while

it calls itself ‘Organization B.’ ’’). Seizing upon our earlier

invocation of the transitive property, NCRI now argues that

the administrative record does not demonstrate that ‘‘A

equals B’’ — that is, that NCRI equals MEK — and therefore NCRI cannot be an alias of MEK. Indeed, NCRI

rightly points out that even the State Department acknowledges that NCRI and MEK are not ‘‘one and the same.’’ See

Pet. Reply Br. 4–6.

Implicit in NCRI’s argument, however, is a mistaken assumption that the alias concept, under AEDPA, is bounded

by the transitive property. This reads too much into our

mathematical metaphor in NCRI. See Berkey v. Third Ave.

Ry. Co., 244 N.Y. 84, 94 (1926) (Cardozo, J.) (‘‘Metaphors in

law are to be narrowly watched, for starting as devices to

liberate thought, they end often by enslaving it.’’). While it is
8

certainly correct to use the term alias to describe scenarios

where a single entity is known by more than one name — for

instance, Mojahedin-e Khalq is an alias for People’s Mojahedin, two names for the same organization, one Farsi, the

other English — nothing in AEDPA or any more general rule

of logic or language requires that the application of the alias

concept be strictly limited to such circumstances.

To the contrary, our citation in NCRI to First National

City Bank v. Banco Para El Comercio Exterior de Cuba, 462

U.S. 611 (1983), indicates that we intended the alias concept

to have a sweep beyond the transitive. In that case, which

concerned a suit brought by Banco Para El Comercio Exterior (BPECE) against First National City Bank for performance under a letter of credit, the Supreme Court held that

First National could counterclaim for setoff of the value of its

assets that had been seized and nationalized by the Cuban

government, notwithstanding the fact that BPECE had been

established by the Cuban government as a juridical entity

separate from the government. See id. at 623–34. Acknowledging a presumption that ‘‘government instrumentalities established as juridical entities distinct and independent from

their sovereign should normally be treated as such,’’ id. at

626–27, the Court nevertheless concluded that the normally

separate juridical status had to be set aside where the Cuban

government was the real party in interest behind BPECE’s

letter of credit claim, id. at 632. The Court, in reaching its

conclusion, looked to ordinary principles of agency law, noting

that ‘‘where a corporate entity is so extensively controlled by

its owner that a relationship of principal and agent is created,

we have held that one may be held liable for the actions of the

other.’’ Id. at 629 (citing NLRB v. Deena Artware, Inc., 361

U.S. 398, 402–04 (1960)). We think those same ordinary

principles of agency law are fairly encompassed by the alias

concept under AEDPA. When one entity so dominates and

controls another that they must be considered principal and

agent, it is appropriate, under AEDPA, to look past their

separate juridical identities and to treat them as aliases.

The inclusion of these fundamental precepts of agency law

within AEDPA’s alias concept is entirely consistent with —
9

indeed, necessary to — the effective pursuit of the statute’s

objective of denying support in and from the United States to

terrorist organizations. Just as it is silly to suppose ‘‘that

Congress empowered the Secretary to designate a terrorist

organization TTT only for such periods of time as it took such

organization to give itself a new name, and then let it happily

resume the same status it would have enjoyed had it never

been designated,’’ NCRI, 251 F.3d at 200, so too it is implausible to think that Congress permitted the Secretary to

designate an FTO to cut off its support in and from the

United States, but did not authorize the Secretary to prevent

that FTO from marshaling all the same support via juridically

separate agents subject to its control. For instance, under

NCRI’s conception, the Government could designate XYZ

organization as an FTO in an effort to block United States

support to that organization, but could not, without a separate

FTO designation, ban the transfer of material support to

XYZ’s fundraising affiliate, FTO Fundraiser, Inc. The

crabbed view of alias status advanced by NCRI is at war not

only with the antiterrorism objective of AEDPA, but common

sense as well.

We need not plumb all the complexities of agency law to

determine when an agent, under AEDPA, is the alias of its

principal. It is sufficient for our purposes to note that the

requisite relationship for alias status is established at least

when one organization so dominates and controls another that

the latter can no longer be considered meaningfully independent from the former. See, e.g., NLRB v. Deena Artware,

Inc., 361 U.S. 398, 403 (1960) (‘‘ ‘Dominion may be so complete, interference so obtrusive, that by the general rules of

agency the parent will be a principal and the subsidiary an

agent.’ ’’) (quoting Berkey, 244 N.Y. at 95); Casino Ready

Mix, Inc. v. NLRB, 321 F.3d 1190, 1196 (D.C. Cir. 2003)

(‘‘ ‘agent’ is one who agrees to act ‘subject to [a principal’s]

control’ ’’) (quoting RESTATEMENT (SECOND) OF AGENCY § 1, cmt.

a (1958)); cf. Transamerica Leasing, Inc. v. La Republica de

Venezuela, 200 F.3d 843, 848 (D.C. Cir. 2000) (‘‘A sovereign is

amenable to suit based upon the actions of an instrumentality

it dominates because the sovereign and the instrumentality
10

are in those circumstances not meaningfully distinct entities;

they act as one.’’).

We thus frame our inquiry here as whether ‘‘the Secretary,

on the face of things, had enough information before [him] to

come to the conclusion’’ that NCRI was dominated and

controlled by MEK. PMOI I, 182 F.3d at 25. Based on our

review of the entire administrative record and the classified

materials appended thereto, we find that the Secretary did

have an adequate basis for his conclusion. While our determination is buttressed by classified information provided to

us on an ex parte and in camera basis — the contents of

which we cannot discuss — the voluminous unclassified materials contained in the administrative record by themselves

and by a comfortable margin provide sufficient support for

the Secretary’s conclusion, given the standard of review. It

would serve little purpose to catalogue all the material in the

administrative record supporting the conclusion that NCRI is

dominated and controlled by MEK, but we will set out below

a few of the pieces of information we found to be most

compelling. As we do so, it bears repeating that AEDPA

does not permit us, in exercising our limited judicial review,

to make any ‘‘judgment whatsoever regarding whether the

material before the Secretary is or is not true,’’ but allows us

to inquire only whether the Secretary ‘‘had enough information before [him] to come to the conclusion’’ that NCRI is

dominated and controlled by MEK. Id.

After an extensive investigation of MEK and NCRI, the

FBI reported to the State Department that ‘‘[i]t is the

unanimous view of the FBI personnel who are involved in and

familiar with the FBI’s investigation of the [MEK] that the

NCRI is not a separate organization, but is instead, and has

been, an integral part of the MEK at all relevant times.’’

Letter of Charles Frahm, Section Chief, International Terrorism Operations Section II, at 1 (Aug. 28, 2002). Contrary to

NCRI’s portrayal of itself as an umbrella organization, of

which the MEK was just one member, the FBI concluded

that it is NCRI that is ‘‘the political branch’’ of the MEK. Id.

Attach. at 1.
11

This conclusion was based in large part on evidence gathered from the search — executed in December 2001 pursuant

to a valid warrant — of a house in Falls Church, Virginia

apparently used as office space by both NCRI and MEK.

There, the FBI discovered NCRI and MEK materials ‘‘commingled together, and not separated,’’ including bank records,

signed blank checks, MEK propaganda, NCRI publications,

travel documents, and letterhead which listed the same

French address for each organization. Id. Attach. at 2–4.

Crucially, among the recovered documents was a schematic

breakdown of the ‘‘Iranian Resistance,’’ which described

NCRI as ‘‘The Political Branch’’ of the movement. Id. at Tab

6.

Additionally, earlier investigations of MEK and NCRI had

revealed that the two organizations shared an essentially

unitary leadership structure. The overall head of MEK,

Massoud Rajavi, also leads NCRI. And Rajavi’s wife, Maryam Rajavi, was selected by NCRI to be Iran’s President-inExile. Id. Attach. at 2; see also id. Attach. at 4 (‘‘The

leadership of [MEK] and NCRI is intermixed, and the entities operate in a day-to-day way as a single unit.’’). These

facts corroborated the FBI’s earlier conclusion prior to the

2001 designation of NCRI as an FTO that ‘‘the NCR/NCRI is

in fact controlled by and inseparable from the MEK.’’ Decl.

of Agent Michael Rolince (quoted in Action Mem., Tab 2 at

11).

The State Department acknowledged that ‘‘NCRI has submitted numerous affidavits purporting to show that it is not

controlled by the MEK and is not an MEK front,’’ and even

credited some of NCRI’s ‘‘subsidiary points.’’ Action Mem.,

Tab 2 at 12, 9. The agency, however, concluded that ‘‘the

evidence developed by the FBI is convincingly to the contrary.’’ Id. Tab 2 at 12. It may be true that the State

Department relied very heavily on the conclusions of the

counterterrorism experts of the FBI. As noted above,

though, under the narrow powers of judicial review Congress

has accorded to us under AEDPA, it is emphatically not our

province to second-guess the Secretary’s judgment as to

which affidavits to credit and upon whose conclusions to rely.
12

We are to judge only whether the ‘‘support’’ marshaled for

the Secretary’s designation was ‘‘substantial.’’ 8 U.S.C.

§ 1189(b)(3)(D). We conclude that the support for the Secretary’s conclusion that NCRI was dominated and controlled

by, and thus was an alias of, MEK was indeed substantial,

and we therefore reject NCRI’s statutory challenge to its

designation as an FTO.

III.

This leaves only NCRI’s constitutional challenges to certain

procedures employed in making that designation. Specifically, NCRI argues that due process requires that (1) it be

provided access to any classified materials that the Secretary

relied upon in making the designation, and (2) it have an

adversary hearing before the agency at which it could confront witnesses against it. Both these arguments are foreclosed by our earlier decisions in NCRI and PMOI II. See

251 F.3d at 208–09; 327 F.3d at 1242–43. Concerning

NCRI’s claim that it is entitled to review classified materials,

in NCRI we wrote that the government ‘‘need not disclose the

classified information to be presented in camera and ex parte

to the court under the statute.’’ 251 F.3d at 208. In PMOI

II, addressing the same claim, this time brought by MEK, we

were even more emphatic: ‘‘We reject this contentionTTTT

We already decided in [NCRI] that due process required the

disclosure of only the unclassified portions of the administrative record.’’ 327 F.3d at 1242. PMOI II also disposes of

NCRI’s claim for an adversary hearing. There, we held that

NCRI established the constitutional baseline for fair process

and, the Government having complied with those commands

on remand, that ‘‘nothing further is due.’’ Id. at 1243. We

reach the same conclusion with regard to NCRI.

The petition for review is denied.