FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AL HARAMAIN ISLAMIC FOUNDATION, 

INC., aka Al-Haramain Islamic

Foundation, Inc.; and

MULTICULTURAL ASSOCIATION OF

SOUTHERN OREGON,

Plaintiffs-Appellants, No. 10-35032

v. D.C. No.

UNITED STATES DEPARTMENT OF THE  3:07-cv-01155-KI

TREASURY; TIMOTHY GEITHNER;

OPINION OFFICE OF FOREIGN ASSETS

CONTROL; ADAM J. SZUBIN; UNITED

STATES DEPARTMENT OF JUSTICE;

and ERIC H. HOLDER JR., Attorney

General,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Oregon

Garr M. King, Senior District Judge, Presiding

Argued and Submitted

March 9, 2011—Portland, Oregon

Filed September 23, 2011

Before: Dorothy W. Nelson, Sidney R. Thomas, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Graber

18043
COUNSEL

David D. Cole, Georgetown University Law Center, Washington, D.C., for the plaintiffs-appellants.

Douglas N. Letter and Michael P. Abate, Civil Division,

United States Department of Justice, Washington, D.C., for

the defendants-appellees.

OPINION

GRABER, Circuit Judge:

Plaintiff Al Haramain Islamic Foundation, Oregon (“AHIFOregon”), is a non-profit organization, incorporated in Oregon, whose stated purpose is to promote greater understanding of Islam. The United States government suspected AHIFOregon of supporting terrorism. In 2004, the Office of Foreign Assets Control (“OFAC”), a part of the United States

Department of the Treasury, froze AHIF-Oregon’s assets and

designated AHIF-Oregon as a “specially designated global

18048 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
terrorist” pursuant to Executive Order (“EO”) No. 13,224.

President George W. Bush had issued EO 13,224 pursuant to

the International Emergency Economic Powers Act

(“IEEPA”), 50 U.S.C. §§ 1701-1707, in the wake of the

events of September 11, 2001.

AHIF-Oregon eventually filed this action, asserting that

OFAC has violated a variety of its statutory and constitutional

rights. Plaintiff Multicultural Association of Southern Oregon,

which the government has not accused of supporting terrorism, challenges certain laws that bar it from providing services to designated entities such as AHIF-Oregon. With the

exception of one claim not at issue on appeal, the district

court granted summary judgment to OFAC.

On appeal, we affirm in part, reverse in part, and remand.

We affirm the district court’s ruling that substantial evidence

supports OFAC’s redesignation of AHIF-Oregon as a specially designated global terrorist, and we affirm the district

court’s rejection of AHIF-Oregon’s due process claims. We

reverse the district court’s rejection of AHIF-Oregon’s Fourth

Amendment claim and remand for the district court to determine what judicial relief, if any, is available. Finally, we

reverse the district court’s dismissal of Plaintiffs’ First

Amendment claim.

FACTUAL AND PROCEDURAL HISTORY

AHIF-Oregon incorporated as a non-profit public benefit

corporation under Oregon law in 1999. AHIF-Oregon

describes itself as “an Oregon non-profit charitable organization that seeks to promote greater understanding of the

Islamic religion through operating prayer houses, distributing

religious publications, and engaging in other charitable activities.” It maintains headquarters in Ashland, Oregon, where it

formerly owned and operated a prayer house. Its primary

activities appear to have taken place in Oregon, though it also

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18049
was a partial owner of a prayer house in Springfield, Missouri, and conducted some activities there and abroad.

AHIF-Oregon is not the only organization with the name

“Al Haramain Islamic Foundation.” At the time of its incorporation, organizations with that name existed in dozens of other

countries. One of the largest, if not the largest, was AHIFSaudi Arabia, which had an annual budget of between $30

million and $80 million. Like AHIF-Oregon, AHIF-Saudi

Arabia described itself as a charitable organization. AHIFSaudi Arabia dissolved in June 2004.

The two organizations, AHIF-Oregon and AHIF-Saudi

Arabia, shared some leaders in common. In particular, Saudi

nationals Aqeel Al-Aqil and Soliman Al-Buthe1 both held

leadership roles in the two organizations. Al-Aqil founded

AHIF-Saudi Arabia and reportedly led that organization during much of its existence. He also founded AHIF-Oregon,

along with Al-Buthe and two other persons, and served as

president of that organization until he resigned in March

2003. Al-Buthe was a senior official of AHIF-Saudi Arabia,

where he was primarily responsible for its internet and charitable works in the United States. Al-Buthe resigned from

AHIF-Saudi Arabia in September 2002. Like Al-Aqil, AlButhe was a founding member of the board of directors of

AHIF-Oregon. Unlike Al-Aqil, Al-Buthe has not resigned

from AHIF-Oregon; Al-Buthe maintains a position on the

board to this day.

Shortly after the events of September 11, 2001, President

Bush exercised his authority under the IEEPA by issuing EO

13,224. 66 Fed. Reg. 49,079 (Sept. 23, 2001). Under the

IEEPA, the President may, in specified ways, “deal with any

1The names of some persons mentioned in this opinion have several

alternate spellings. Consistent with the parties’ and the district court’s

treatment, we use only one spelling. When quoting documents, we have

substituted the chosen spelling without notation. 

18050 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
unusual and extraordinary threat, which has its source in

whole or substantial part outside the United States, to the

national security, foreign policy, or economy of the United

States, if the President declares a national emergency with

respect to such threat.” 50 U.S.C. § 1701(a). Relevant here,

the President may

(B) investigate, block during the pendency of an

investigation, regulate, direct and compel, nullify,

void, prevent or prohibit, any acquisition, holding,

withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or

exercising any right, power, or privilege with respect

to, or transactions involving, any property in which

any foreign country or a national thereof has any

interest by any person, or with respect to any property, subject to the jurisdiction of the United States[.]

Id. § 1702(a)(1)(B). A person who violates the IEEPA is subject to civil penalties and, for willful violations, criminal penalties, including a fine up to $1 million and imprisonment for

up to 20 years. Id. § 1705.2

2The IEEPA also authorizes the President to issue regulations. 50

U.S.C. § 1704. Pursuant to that authority, OFAC has issued regulations

governing blocked property. 31 C.F.R. §§ 501.801-.808. With one exception at section 501.807, the regulations do not describe the designation

process or appeals from designations. Section 501.807 states that “[a] person may seek administrative reconsideration of his, her or its designation

. . . or assert that the circumstances resulting in the designation no longer

apply, and thus seek to have the designation rescinded.” The regulation

states that OFAC will review all submitted information and “may request

clarifying, corroborating, or other additional information.” Id.

§ 501.807(b). “A blocked person seeking unblocking . . . may request a

meeting” with OFAC, but “such meetings are not required,” and OFAC

may decline such a request “at its discretion.” Id. § 501.807(c). “After

[OFAC] has conducted a review of the request for reconsideration, it will

provide a written decision to the blocked person.” Id. § 501.807(d). The

regulation provides no time frame for OFAC’s decision on reconsideration. 

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18051
In the Executive Order, the President declared that the

“September 11, 2001, acts . . . constitute an unusual and

extraordinary threat to the national security, foreign policy,

and economy of the United States.” EO 13,224 pmbl. The

Order “blocked” “all property and interests in property” of 27

persons designated by the Order, and it delegated to the specified agency head the authority to designate other persons with

substantial connections to terrorist activities and organizations. Id. § 1. Specifically, Section 1 of the Order states that

all property and interests in property of the following

persons that are in the United States or that hereafter

come within the United States, or that hereafter

come within the possession or control of United

States persons are blocked:

(a) foreign persons listed in the Annex to this

order;

(b) foreign persons determined by the Secretary of

State, in consultation with the Secretary of the Treasury and the Attorney General, to have committed,

or to pose a significant risk of committing, acts of

terrorism that threaten the security of U.S. nationals

or the national security, foreign policy, or economy

of the United States;

(c) persons determined by the Secretary of the

Treasury, in consultation with the Secretary of State

and the Attorney General, to be owned or controlled

by, or to act for or on behalf of those persons listed

in the Annex to this order or those persons determined to be subject to subsection 1(b), 1(c), or

1(d)(i) of this order; 

(d) except as provided in section 5 of this order

and after such consultation, if any, with foreign

authorities as the Secretary of State, in consultation

18052 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
with the Secretary of the Treasury and the Attorney

General, deems appropriate in the exercise of [her]

discretion, persons determined by the Secretary of

the Treasury, in consultation with the Secretary of

State and the Attorney General;

(i) to assist in, sponsor, or provide financial, material, or technological support for, or financial or

other services to or in support of, such acts of terrorism or those persons listed in the Annex to this order

or determined to be subject to this order; or

(ii) to be otherwise associated with those persons

listed in the Annex to this order or those persons

determined to be subject to subsection 1(b), 1(c), or

1(d)(i) of this order.

The 27 persons and entities specifically listed in the Annex

did not include Al-Aqil, Al-Buthe, or any AHIF organization.3

Id. at annex.

In the years following the issuance of EO 13,224, OFAC

periodically designated new persons and entities.4 Relevant

here, by February 1, 2004, OFAC had designated AHIF organizations in six countries: Somalia, Bosnia, Indonesia, Kenya,

Tanzania, and Pakistan. But OFAC had not designated AHIFOregon, AHIF-Saudi Arabia, or any AHIF organization other

than those six in the countries just listed.

On February 18, 2004, federal and state officials executed

3

In 2002, President Bush amended EO 13,224 to add one entity and one

person, neither of which relates to this case. Exec. Order No. 13,268, 67

Fed. Reg. 44,751 (July 2, 2002). 

4For simplicity, we will refer to persons and entities designated by the

President or OFAC under EO 13,224 as “designated persons” or “designated entities.” We intend these terms to have the same meaning as the

phrase “specially designated global terrorists.” 

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18053
a search warrant at AHIF-Oregon’s Ashland office. The

search warrant concerned investigations into possible criminal

violations of tax, banking, and money-laundering laws.

Agents found, among other things, photographs and other

documents related to violence in Chechnya.

The next day, February 19, 2004, OFAC issued a press

release stating that it had blocked AHIF-Oregon’s assets

pending an investigation concerning the potential designation

of AHIF-Oregon under EO 13,224.5 The press release did not

state reasons for the investigation. OFAC did not provide

prior notice to AHIF-Oregon before blocking its assets, and

OFAC did not obtain a warrant to block the assets.

In the months following that press release, OFAC and

AHIF-Oregon exchanged voluminous documents on a range

of topics. At the request of OFAC, AHIF-Oregon submitted

a copy of a Koran that AHIF-Oregon previously had distributed to prisoners and others. The Koran was the only item

specifically requested by OFAC.

The bulk of the exchange concerned AHIF-Oregon’s possible connections to Chechen terrorism in Russia. The dispute

centers on a donation in 2000 by AHIF-Oregon to AHIFSaudi Arabia of more than $150,000. AHIF-Oregon concedes

that it made the donation but strenuously argues that it was

intended to be used, and in fact was used, for humanitarian

relief in Chechnya. The donation originated from an Egyptian

national who apparently wished to funnel the money through

AHIF-Oregon. AHIF-Oregon received the funds and then

transferred them to AHIF-Saudi Arabia.

5The government states that approximately $20,310 of AHIF-Oregon’s

assets have been blocked, but AHIF-Oregon counters that that figure does

not include $440,000 in proceeds from the sale of the Ashland property.

We need not resolve those competing claims; the amount of blocked assets

is not material to the issues on appeal. 

18054 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
In June 2004, while OFAC’s investigation of AHIF-Oregon

continued, two important events occurred. First, AHIF-Saudi

Arabia dissolved. OFAC had not designated AHIF-Saudi Arabia under EO 13,224 or otherwise as a terrorist organization.

Second, OFAC designated Al-Aqil as a specially designated

global terrorist. At the time, though, Al-Aqil no longer had an

official connection to AHIF-Oregon; he had resigned from

AHIF-Oregon’s board in March 2003.

On September 9, 2004, OFAC issued a press release declaring that it had designated AHIF-Oregon. The press release

also stated that OFAC had designated Al-Buthe, even though

OFAC had not advised Al-Buthe of any investigation of him.

The press release read, in part:

The investigation shows direct links between the

U.S. branch and Usama bin Laden. In addition, the

affidavit alleges the U.S. branch of [AHIF] criminally violated tax laws and engaged in other money

laundering offenses. Information shows that individuals associated with the branch tried to conceal the

movement of funds intended for Chechnya by omitting them from tax returns and mischaracterizing

their use, which they claimed was for the purchase

of a prayer house in Springfield, Missouri. 

Other information available to the U.S. shows that

funds that were donated to [AHIF-Oregon] with the

intention of supporting Chechen refugees were

diverted to support mujahideen, as well as Chechen

leaders affiliated with the al Qaida network.

One week later, on September 16, 2004, OFAC sent a letter

to AHIF-Oregon entitled “BLOCKING NOTICE.” The letter

provided: “You are hereby notified that pursuant to [Executive Order No. 13,224] and under the authorities granted by

IEEPA, OFAC has determined that [AHIF-Oregon] is an

entity that falls within the criteria for designation set forth in

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18055
the Order at § 1(c), (d). Accordingly, [AHIF-Oregon] is

hereby designated as a Specially Designated Global Terrorist

pursuant to the Order.” The letter described the legal consequences of the designation, including the blocking of all

assets, and warned the organization of the civil and criminal

penalties for violations of the IEEPA. The letter concluded

that AHIF-Oregon could request administrative reconsideration pursuant to 31 C.F.R. § 501.807.

In early 2005, AHIF-Oregon submitted additional documents for the administrative record and requested administrative reconsideration. In the letter, AHIF-Oregon asserted that

it had no connection to terrorism and provided a detailed

explanation concerning certain subjects, including the Chechen donation. In the many months following its request for

administrative reconsideration, AHIF-Oregon repeatedly

sought both an explanation for the designation and a final

determination of its request for administrative reconsideration. Like AHIF-Oregon, Al-Buthe requested administrative

reconsideration of OFAC’s designation of him.

Having received no response to its 2005 request for administrative reconsideration, AHIF-Oregon filed this action in

August 2007. AHIF-Oregon brought a substantive challenge

to the designation and several procedural challenges. As to the

latter, AHIF-Oregon argued that OFAC’s use of classified

information violated its due process rights, that OFAC’s

refusal to provide reasons for the investigation and designation violated its due process rights, and that OFAC’s failure

to obtain a warrant before seizing its assets violated the

Fourth Amendment.

Three months after AHIF-Oregon filed its complaint, in

November 2007, OFAC sent a letter to AHIF-Oregon and AlButhe notifying them of OFAC’s provisional intent to “redesignate” them and offering a final chance to submit documentation. The parties again exchanged many documents,

18056 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
including nearly 1,000 pages of material submitted by AHIFOregon.

On February 6, 2008, OFAC sent AHIF-Oregon and AlButhe a letter stating that, “after a thorough investigation and

review of the evidence in the record regarding AHIF-Oregon

and Mr. Al-Buthe, OFAC has determined that AHIF-Oregon

and Mr. Al-Buthe continue to meet the criteria for designation.” The letter specified three reasons for redesignating

AHIF-Oregon: “(1) being owned or controlled by [designated

persons] Aqeel Al-Aqil and Al-Buthe, (2) acting for or on

behalf of [designated persons] Al-Aqil and Al-Buthe, and (3)

supporting and operating as a branch office of AHIF, an international charity that employed its branch offices to provide

financial, material, and other services and support to al Qaida

and other [designated persons].”

In a memorandum dated the same day, OFAC explained, in

more detail, its reasons for redesignating AHIF-Oregon.

Much of the document is redacted, but its unredacted conclusions are the same as the ones stated in the letter:

AH[I]F-Oregon should be determined to be subject to Executive Order 13,224 for the following reasons: [1] AH[I]F-Oregon has been owned or

controlled by, or has acted for or on behalf of AlAqil; [2] AH[I]F-Oregon has been owned or controlled by, or has acted for or on behalf of Al-Buthe;

[3] As a branch of the Saudi charity Al-Haramain

Islamic Foundation, AH[I]F-Oregon has acted for or

on behalf of, or has assisted in, sponsored, or provided financial, material, or technological support

for, or financial or other services to or in support of

Al Qaida and other [designated persons].

(Emphasis omitted.) Four months later, on June 19, 2008,

OFAC designated “the world-wide organization of AHIF.”

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18057
In this action, the district court granted summary judgment

to OFAC on all of AHIF-Oregon’s claims. The court held that

substantial evidence did not support OFAC’s determination

that Al-Aqil owned or controlled AHIF-Oregon at the time of

redesignation. But the court found that substantial evidence

did support OFAC’s other two reasons: that Al-Buthe owned

or controlled AHIF-Oregon and that AHIF-Oregon supported

designated persons as a branch office of AHIF-Saudi Arabia.

With respect to the procedural challenges, the district court

rejected AHIF-Oregon’s argument that OFAC cannot rely on

classified information in making its designation determinations. The district court next held that OFAC violated AHIFOregon’s procedural due process rights by failing to provide

notice and a meaningful opportunity to respond. But the district court held that the violation was harmless because, even

if AHIF-Oregon properly had been informed of OFAC’s reasons for suspicion, AHIF-Oregon could not have avoided the

redesignation. Finally, the district court held that the blocking

of assets is a “seizure” for purposes of the Fourth Amendment. But the court held that OFAC’s actions fell within the

“special needs” exception to the warrant requirement.

The second named plaintiff in this action is Multicultural

Association of Southern Oregon (“MCASO”). MCASO

describes itself as “an Oregon public benefit corporation with

members, incorporated in 1995 and operating in Medford,

[Oregon, as] a non-profit 501(c)(3) organization.” “MCASO’s

objectives include serving as a catalyst in the southern Oregon

community to promote understanding and appreciation

between cultures in order to reduce racism, promote and support multicultural education, and provide forums for problem

solving related to intercultural differences.” Before the designation of AHIF-Oregon, MCASO had co-sponsored events

with AHIF-Oregon. MCASO alleged that it would continue to

co-sponsor events and conduct other activities in coordination

with AHIF-Oregon, were it not for AHIF-Oregon’s designation. MCASO asserts that EO 13,224 and its implementing

18058 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
regulations are unconstitutionally vague and overbroad and

that they violate MCASO’s First and Fifth Amendment rights

by prohibiting it from working with AHIF-Oregon.6 With one

exception concerning a claim not before us on appeal,7 the

district court rejected MCASO’s claims and granted summary

judgment to OFAC.

AHIF-Oregon and MCASO timely appeal.

STANDARDS OF REVIEW

We review de novo the district court’s decision on crossmotions for summary judgment. Trunk v. City of San Diego,

629 F.3d 1099, 1105 (9th Cir. 2011). “We review de novo

questions of law, including constitutional rulings, resolved on

summary judgment.” Nader v. Cronin, 620 F.3d 1214, 1216

(9th Cir. 2010) (per curiam), cert. denied, 131 S. Ct. 1844

(2011). We review for clear error the district court’s factual

findings. Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010).

The judicial review provisions of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), govern challenges

to OFAC’s designation decisions. See Alaska Dep’t of Envtl.

Conservation v. EPA, 540 U.S. 461, 496-97 & n.18 (2004)

(holding that, when considering an agency action as to which

the statute does not specify the standard of review, the courts

of appeals must proceed pursuant to the APA’s general standard of review for agency actions in 5 U.S.C. § 706(2)(A));

see also Vigil v. Leavitt, 381 F.3d 826, 833 (9th Cir. 2004)

(describing Alaska Dep’t of Envtl. Conservation’s application); accord Holy Land Found. for Relief & Dev. v. Ashcroft,

333 F.3d 156, 162 (D.C. Cir. 2003). Accordingly, we may set

aside OFAC’s designation only if it is “arbitrary, capricious,

6AHIF-Oregon also joins in these causes of action but, for simplicity,

we refer to these claims as MCASO’s claims. 

7The government originally cross-appealed but soon after filed a motion

to dismiss the cross-appeal, which we granted. 

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18059
an abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A). Under that standard, we review

for substantial evidence the agency’s factual findings. Alaska

Dep’t of Health & Soc. Servs. v. Ctrs. for Medicare & Medicaid Servs., 424 F.3d 931, 937 (9th Cir. 2005).

DISCUSSION

A. Substantive Challenge to the Redesignation

OFAC supported its 2008 redesignation of AHIF-Oregon

on three grounds: (1) that AHIF-Oregon is owned or controlled by Al-Aqil; (2) that AHIF-Oregon is owned or controlled by Al-Buthe; and (3) that AHIF-Oregon provided

support to al Qaida and other designated persons as a branch

office of AHIF-Saudi Arabia. AHIF-Oregon argues under the

APA that substantial evidence does not support those reasons.

Like the district court, we conclude that substantial evidence

supports the last two reasons, but not the first. We address

them in turn, below.

Before doing so, however, we note that AHIF-Oregon also

describes its APA challenge in two other ways. First, AHIFOregon argues that OFAC reached its decision without affording AHIF-Oregon a meaningful opportunity to respond and

thus violated the APA. We occasionally have held that an

agency’s prejudicial procedural failure violates the APA and,

accordingly, have remanded to the agency for reconsideration.

See, e.g., Asarco, Inc. v. EPA, 616 F.2d 1153, 1162 (9th Cir.

1980) (citing Bowman Transp., Inc. v. Ark.-Best Freight Sys.,

Inc., 419 U.S. 281, 288 n.4 (1974)). But the genesis of that

rule appears to be the Due Process Clause, rather than a separate statutory grant of procedural rights. See Bowman Transp.,

419 U.S. at 288 n.4 (“Indeed, the Due Process Clause forbids

an agency to use evidence in a way that forecloses an opportunity to offer a contrary presentation.”). In any event, AHIFOregon does not argue with any specificity that its procedural

objections under the APA are any different from its identical

18060 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
objections under the Due Process Clause. We address its due

process claim concerning inadequate notice in Part B-2,

below.

Second, AHIF-Oregon argues that OFAC lacked “authorization” to redesignate AHIF-Oregon. We disagree. The regulations clearly contemplate administrative reconsideration, 31

C.F.R. § 501.807; indeed, OFAC issued its redesignation

decision at AHIF-Oregon’s specific request under the regulations. Just as OFAC has authority to designate an entity, it

likewise has the authority to respond to that entity’s request

for reconsideration, including with updated reasons.

It appears that AHIF-Oregon’s primary point is that

OFAC’s 2008 reasons actually are a post-hoc rationalization

for its original 2004 designation and that AHIF-Oregon had

no earlier notice of the reasons OFAC eventually gave in

2008. As with the previous argument, we see no difference

between this argument and AHIF-Oregon’s procedural due

process claim concerning inadequate notice, which we analyze below, in Part B-2. We turn, then, to our review of

OFAC’s three stated reasons and assess whether substantial

evidence supports its designation of AHIF-Oregon as a specially designated global terrorist.

1. Ownership or Control by Al-Aqil

[1] Al-Aqil was a founding member of AHIF-Oregon. The

organization’s 2001 tax return described Al-Aqil as the organization’s president. But he resigned from AHIF-Oregon’s

board in March 2003. OFAC did not take any action against

AHIF-Oregon until almost a year later, in February 2004,

when it provisionally blocked its funds pending investigation.

Having reviewed the record, we agree with the district court

that “[t]here is no evidence Al-Aqil was involved with AHIFOregon after his resignation, or at the time AHIF-Oregon was

designated.”

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18061
2. Ownership or Control by Al-Buthe

[2] Al-Buthe is a designated person. Al-Buthe exercises

control over AHIF-Oregon because he is on its board of directors. EO 13,224 authorizes the designation of an entity that is

controlled by a designated person. EO 13,224, § 1(c). It is,

therefore, a valid reason to designate AHIF-Oregon based on

Al-Buthe’s control. We agree with the district court that substantial evidence supports this reason.

AHIF-Oregon makes only two counterarguments. Neither

persuades us. First, AHIF-Oregon asserts that Al-Buthe’s

designation—an undisputed fact—is “unfounded.” But AlButhe did not join this action as a plaintiff or intervenor.

Whether Al-Buthe’s designation is supported by substantial

evidence is simply not before us. A plaintiff cannot collaterally attack the designation of a third party. In short, AHIFOregon knowingly retained (and continues to retain) a designated person on its board of directors.

Second, AHIF-Oregon argues that, because OFAC gave no

reasons for designating Al-Buthe in 2004, AHIF-Oregon and

Al-Buthe reasonably assumed that he was designated not for

an independent reason germane to him, but because of his

connection to AHIF-Oregon. Al-Buthe asserted in a declaration, filed in the district court, that he would have resigned

from the board had he known that the taint flowed from him

to AHIF-Oregon, rather than vice versa.

That argument, however, does not challenge the evidence

in the administrative record, on which the agency made its

decision, and on which we must conduct our review. The evidence in the administrative record demonstrates that Al-Buthe

controlled AHIF-Oregon. To the extent that AHIF-Oregon

argues that OFAC violated Al-Buthe’s procedural rights, that

issue is not before us because, as noted, Al-Buthe is not a

party to this action. To the extent that AHIF-Oregon argues

that OFAC violated AHIF-Oregon’s own procedural rights,

18062 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
that argument is best viewed as part of the procedural due

process claim concerning inadequate notice, discussed in Part

B-2, below.

Moreover, to the extent that we could consider evidence

beyond the administrative record, such as Al-Buthe’s declaration, it remains true that Al-Buthe did not, in fact, resign after

the 2008 redesignation and, so far as the record demonstrates,

remains a board member of AHIF-Oregon. AHIF-Oregon

now has kept on its board of directors a designated person for

more than five years, two years since it has known OFAC’s

reasoning, and that designated person has not challenged

OFAC’s designation before this court. AHIF-Oregon is “controlled by” a designated person. EO 13,224 § 1(c). There is no

basis to set aside the agency action.

3. Support of Al Qaida and Other Designated Persons as

a Branch Office of AHIF-Saudi Arabia

[3] OFAC asserts that AHIF-Oregon is a branch office of

AHIF-Saudi Arabia and that AHIF-Saudi Arabia, through its

other branches and perhaps directly, supported designated

persons. We have no trouble concluding that substantial evidence supports OFAC’s determination that AHIF-Oregon is a

branch office of AHIF-Saudi Arabia and of the worldwide

network of the Al Haramain Islamic Foundation. One obvious

connection is that AHIF-Oregon chose its name to parallel the

Saudi Arabian organization’s name and the names of other

branches. Additionally, three out of four founding members of

AHIF-Oregon were senior officials of AHIF-Saudi Arabia.

See Islamic Am. Relief Agency (IARA-USA) v. Gonzales, 477

F.3d 728, 734 (D.C. Cir. 2007) (“An entity’s ‘genesis and history’ may properly be considered by OFAC in making the

designation or blocking, at least where the ties have not been

severed.” (quoting Holy Land, 333 F.3d at 162)). Moreover,

several documents in the record demonstrate that, at times at

least, AHIF-Oregon described itself to others as a branch

office of the larger AHIF organization. Before us, AHIFAL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18063
Oregon strenuously objects to OFAC’s characterization of it

as a “branch office” but, given the deferential standard of

review and the evidence just described, we are unmoved. Substantial evidence supports OFAC’s determination that AHIFOregon is a “branch office” of the larger AHIF organization.

The next question is whether, on this record, the larger

AHIF organization provided support for al Qaida or other designated persons. That is, the strong connection between

AHIF-Oregon and AHIF-Saudi Arabia does not, by itself,

establish OFAC’s third reason.

At the time of AHIF-Oregon’s designation and redesignation, OFAC had designated several separate AHIF entities,

but it had not designated AHIF-Saudi Arabia or some of the

additional AHIF branches that were designated later. OFAC

argues that the various designated branches of the global

AHIF organization formed a loose, mutually supportive network such that the designation of other branches substantiates

the designation of AHIF-Oregon. 

[4] In addition, OFAC directs us to evidence in the unclassified record of two events that occurred in 1999: AHIFOregon provided direct financial support to AHIF-Albania,

allegedly to abet terrorist activities in Kosovo; and AHIFOregon funneled a large donation to AHIF-Saudi Arabia,

allegedly to abet terrorist activities in Chechnya. Although

AHIF-Oregon claims that the funds were meant to be used,

and in fact were used, for humanitarian efforts and not terrorist activities, it does acknowledge the underlying facts of

those financial transactions.

Of course, in 1999, there were no designated persons under

EO 13,224 because the President did not issue that Order until

2001. As we just observed, though, in making a decision

whether to designate, OFAC may consider the origin and history of an entity, at least when the historical ties have not

been severed. IARA-USA, 477 F.3d at 734. And we note that,

18064 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
when OFAC designated AHIF-Oregon, it already had designated AHIF-Albania.

[5] In summary, the evidence in the unclassified record

supports OFAC’s contentions that AHIF-Oregon is a branch

office of an international network of entities that, together,

form the global AHIF organization and that AHIF-Oregon has

ties to other branches, including at least one designated entity.

As did the District of Columbia Circuit, “[w]e acknowledge

that the unclassified record evidence is not overwhelming, but

we reiterate that our review—in an area at the intersection of

national security, foreign policy, and administrative law—is

extremely deferential.” Id. Additionally, we have reviewed

the classified record. In light of all the evidence in the record,

we conclude confidently that substantial evidence supports

OFAC’s conclusion that AHIF-Oregon supported designated

persons as a branch office of AHIF-Saudi Arabia. See EO

13,224 § 1(d)(i) (permitting designation of an entity that provides “financial, material, or technological support for, or

financial or other services to or in support of,” designated persons).

[6] Because substantial evidence supports two of OFAC’s

three reasons for redesignating AHIF-Oregon under EO

13,224, we affirm the district court’s grant of summary judgment to OFAC on AHIF-Oregon’s substantive claims.

B. Procedural Due Process Challenges

[7] AHIF-Oregon argues that OFAC violated its procedural due process rights by using classified information without any disclosure of its content and by failing to provide

adequate notice and a meaningful opportunity to respond. We

apply the balancing test set forth in Mathews v. Eldridge, 424

U.S. 319 (1976). See California ex rel. Lockyer v. Fed.

Energy Regulatory Comm’n, 329 F.3d 700, 709 n.8 (9th Cir.

2003) (explaining that, for procedural due process claims, the

Mathews test is “a general test that applies in all but a few

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18065
contexts”); Nat’l Council of Resistance of Iran v. Dep’t of

State (NCORI), 251 F.3d 192, 208-09 (D.C. Cir. 2001)

(applying the Mathews test in a similar context); Am.-Arab

Anti-Discrimination Comm. v. Reno (ADC), 70 F.3d 1045,

1061 (9th Cir. 1995) (same); see also Hamdi v. Rumsfeld, 542

U.S. 507, 528-29 (2004) (plurality) (holding that the proper

test for balancing national security interests with a person’s

due process rights is the Mathews balancing test). Under the

Mathews balancing test, we “must weigh (1) [the person’s or

entity’s] private property interest, (2) the risk of an erroneous

deprivation of such interest through the procedures used, as

well as the value of additional safeguards, and (3) the Government’s interest in maintaining its procedures, including the

burdens of additional procedural requirements.” Foss v. Nat’l

Marine Fisheries Serv., 161 F.3d 584, 589 (9th Cir. 1998)

(citing Mathews, 424 U.S. at 334-35).

[8] There are strong interests on both sides of the scale,

generally encapsulated in the first and third Mathews factors.

The private party’s property interest is significant. By design,

a designation by OFAC completely shutters all domestic operations of an entity. All assets are frozen. No person or organization may conduct any business whatsoever with the entity,

other than a very narrow category of actions such as legal

defense. Civil penalties attach even for unwitting violations.

50 U.S.C. § 1705(b). Criminal penalties, including up to 20

years’ imprisonment, attach for willful violations. Id.

§ 1705(c). For domestic organizations such as AHIF-Oregon,

a designation means that it conducts no business at all. The

designation is indefinite. Although an entity can seek administrative reconsideration and limited judicial relief, those remedies take considerable time, as evidenced by OFAC’s long

administrative delay in this case and the ordinary delays

inherent in our judicial system. In sum, designation is not a

mere inconvenience or burden on certain property interests;

designation indefinitely renders a domestic organization

financially defunct.

18066 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
On the other side of the scale, the government’s interest in

national security cannot be understated. We owe unique deference to the executive branch’s determination that we face

“an unusual and extraordinary threat to the national security”

of the United States. EO 13,224 pmbl. It is beyond dispute

that “the Government’s interest in combating terrorism is an

urgent objective of the highest order.” Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2724 (2010).

Striking a balance between those two strong competing

interests cannot be done in the abstract. As the Mathews balancing test makes clear, we must carefully assess the precise

“procedures used” by the government, “the value of additional safeguards,” and “the burdens of additional procedural

requirements.” Foss, 161 F.3d at 589 (citing Mathews, 424

U.S. at 334-35). As explained in more detail below, the Constitution certainly does not require that the government take

actions that would endanger national security; nor does it

require the government to undertake every possible effort to

mitigate the risk of erroneous deprivation and the potential

harm to the private party. But the Constitution does require

that the government take reasonable measures to ensure basic

fairness to the private party and that the government follow

procedures reasonably designed to protect against erroneous

deprivation of the private party’s interests.

1. OFAC’s Use of Classified Information

AHIF-Oregon argues that OFAC’s use of classified information violates its procedural due process rights. The first two

Mathews factors support AHIF-Oregon’s position. As noted

above, its private interests are significant. And, as we have

held previously with respect to the use of classified information without disclosure: “One would be hard pressed to design

a procedure more likely to result in erroneous deprivations.”

ADC, 70 F.3d at 1069 (internal quotation marks omitted).

“[T]he very foundation of the adversary process assumes that

use of undisclosed information will violate due process

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18067
because of the risk of error.” Id. But the third Mathews factor

—the government’s interest in maintaining national security

—supports OFAC’s position.

[9] Given the extreme importance of maintaining national

security, we cannot accept AHIF-Oregon’s most sweeping

argument—that OFAC is not entitled to use classified information in making its designation determination. See generally

Gen. Dynamics Corp. v. United States, 131 S. Ct. 1900, 1905

(2011) (“[P]rotecting our national security sometimes requires

keeping information about our military, intelligence, and diplomatic efforts secret.”). In AHIF-Oregon’s view, if classified

information concerning national security demonstrates that an

entity is supporting terrorism, OFAC either must decline to

designate the entity or must reveal the classified information

to the entity that OFAC believes supports terrorist activities.

Common sense dictates that AHIF-Oregon is overreaching.

Not surprisingly, all federal courts to have considered this

argument have rejected it. Holy Land, 333 F.3d at 164; Global

Relief Found., Inc. v. O’Neill, 315 F.3d 748, 754 (7th Cir.

2002); KindHearts for Charitable Humanitarian Dev., Inc. v.

Geithner (KindHearts II), 710 F. Supp. 2d 637, 660 (N.D.

Ohio 2010); Al-Aqeel v. Paulson, 568 F. Supp. 2d 64, 72

(D.D.C. 2008); see also NCORI, 251 F.3d at 208 (holding

that, in a designation of a “foreign terrorist organization”

under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), the government’s use of classified information without permitting the organization to view the information did not violate the organization’s due process rights);

People’s Mojahedin Org. of Iran v. Dep’t of State, 327 F.3d

1238, 1241-43 (D.C. Cir. 2003) (following NCORI and

describing in detail its holding on this point); United States v.

Ott, 827 F.2d 473, 477 (9th Cir. 1987) (holding that, in a military criminal trial, the government’s use of classified information, without permitting the defendant or his lawyers to view

the information, did not violate the defendant’s due process

rights); cf. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d

1070 (9th Cir. 2010) (en banc) (affirming the district court’s

18068 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
dismissal of an action because of the state secrets doctrine in

a case involving classified information), cert. denied, 131 S.

Ct. 2442 (2011); IARA-USA, 477 F.3d 728 (rejecting a challenge that the agency failed to comply with its regulation, 28

C.F.R. § 17.17(a)(1), which required the agency to determine

which portions of the classified record “can be declassified”).

The only case that could be read to yield the contrary conclusion is our decision in ADC, 70 F.3d 1045. There, the government used classified information in summary proceedings

to exclude certain long-time resident aliens. Id. at 1052-54.

The aliens brought suit, alleging that the use of classified

information violated their due process rights. Id. at 1054. The

district court, after viewing the classified information ex parte

and in camera, agreed. Id.

Applying the Mathews balancing test, we affirmed. ADC,

70 F.3d at 1068-70. We found that the first two factors

strongly favored the plaintiffs. And, under the facts of that

case, we held that the government’s claims of national security were “insufficient to tip the Mathews scale towards the

Government.” Id. at 1070. We reached that conclusion

because of the content of the classified information. Specifically, the government had argued that the aliens threatened

national security, but the classified information contained

nothing about the aliens themselves; the classified information demonstrated only that the aliens were nominal members

of a foreign organization that had engaged in terrorist activities. Id. at 1069-70. Notably, we stated that “[t]hese aliens

have been free since the beginning of this litigation almost

eight years ago, without criminal charges being brought

against them for their activities. . . . [The classified evidence]

does not indicate that either alien has personally advocated

those [impermissible] doctrines or has participated in terrorist

activities.” Id. at 1070. We concluded that the use of classified information “should be presumptively unconstitutional.

Only the most extraordinary circumstances could support onesided process.” Id. Because extraordinary circumstances did

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18069
not exist in that case, the use of the classified information was

impermissible. Id.

[10] AHIF-Oregon argues that ADC is directly on point

and “controls here.” AHIF-Oregon is mistaken. We did not

hold that classified information can never be used. Instead, we

held that such use is “presumptively unconstitutional” subject

to the government’s overcoming the presumption in “the most

extraordinary circumstances.” Id. Even assuming that the

standard enunciated in ADC remains good law,8 the use of

classified information in the fight against terrorism, during a

presidentially declared “national emergency,” qualifies as sufficiently “extraordinary” to overcome the presumption.9

See

EO 13,224 pmbl. (“[The] September 11, 2001, acts . . . consti8We express some hesitation about the continuing vitality of ADC, especially in light of its premise that “a court may not dispose of the merits

of a case on the basis of ex parte, in camera submissions.” 70 F.3d at 1069

(internal quotation marks omitted). As we recently explained at great

length sitting en banc, that premise does not hold, at least in some contexts. Jeppesen Dataplan, 614 F.3d at 1077 (“One [form of the state

secrets doctrine] completely bars adjudication of claims premised on state

secrets . . . ; the other is an evidentiary privilege . . . that excludes privileged evidence from the case and may result in dismissal of the claims.”

(emphasis omitted)); cf. Gen. Dynamics, 131 S. Ct. at 1905 (“[P]rotecting

our national security sometimes requires keeping information about our

military, intelligence, and diplomatic efforts secret.”). Because we distinguish ADC, we need not decide whether ADC remains valid precedent.

See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc)

(explaining when a three-judge panel may conclude that an earlier precedent has been fatally undermined). 

9Additionally, our determination in ADC that the government could not

use the classified information depended on the content of the classified

information itself, which the district court had viewed in camera and ex

parte. It is clear from our analysis in ADC that, had the classified information demonstrated that the plaintiff-aliens had, in fact, engaged in terrorism, then the government’s reliance on the information would have been

permissible. In other words, our decision appears to have agreed with the

premise that the government may use classified information without disclosure, if that information truly implicates national security. Here, the

classified information implicates national security. 

18070 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
tute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States . . . .”).

In sum, we join all other courts to have addressed the issue

in holding that, subject to the limitations discussed below, the

government may use classified information, without disclosure, when making designation determinations.

AHIF-Oregon’s more nuanced argument, however, presents a different question. AHIF-Oregon argues that, even if

OFAC may use classified information, it must undertake

some reasonable measure to mitigate the potential unfairness

to AHIF-Oregon. AHIF-Oregon proffers that OFAC could,

for example, provide an unclassified summary of the classified information or permit AHIF-Oregon’s lawyer to view the

documents after receiving a security clearance and pursuant to

a protective order. In essence, AHIF-Oregon argues that, to

the extent possible, OFAC must take reasonable measures that

do not implicate national security and impose only a small

burden on the agency.

[11] Under the Mathews test, we must consider “the value

of additional safeguards” against the risk of error and “the

burdens of additional procedural requirements.” Foss, 161

F.3d at 589. The value of AHIF-Oregon’s suggested methods

seems clear. Without disclosure of classified information, the

designated entity cannot possibly know how to respond to

OFAC’s concerns. Without knowledge of a charge, even simple factual errors may go uncorrected despite potentially easy,

ready, and persuasive explanations. To the extent that an

unclassified summary could provide helpful information, such

as the subject matter of the agency’s concerns, and to the

extent that it is feasible to permit a lawyer with security clearance to view the classified information, the value of those

methods seems undeniable. Indeed, the benefits from such

disclosure could flow not only to the designated entity, which

may be able to clear up errors, but also to OFAC, which may

benefit from the resulting information provided by the designated entity.

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18071
We find significant that there may be means of providing

information to the potential designee that do not implicate

national security. For example, an unclassified summary, by

definition, does not implicate national security because it is

unclassified. Similarly, a lawyer for the designated entity who

has the appropriate security clearance also does not implicate

national security when viewing the classified material

because, by definition, he or she has the appropriate security

clearance.10

[12] We recognize that disclosure may not always be possible. For example, an unclassified summary may not be possible because, in some cases, the subject matter itself may be

classified and cannot be revealed without implicating national

security. Depending on the circumstances, OFAC might have

a legitimate interest in shielding the materials even from

someone with the appropriate security clearance. See Ott, 827

F.2d at 477 (holding, in a different context, that “Congress

has a legitimate interest in authorizing the Attorney General

to invoke procedures designed to ensure that sensitive security

information is not unnecessarily disseminated to anyone not

involved in the surveillance operation in question, whether or

not she happens for unrelated reasons to enjoy security clearance”); see also Gen. Dynamics, 131 S. Ct. at 1904 (noting

that disclosure of sensitive information to a limited number of

lawyers led to “unauthorized disclosure of military secrets”).

In many cases, though, some information could be summarized or presented to a lawyer with a security clearance without implicating national security.

10We recognize that the utility of the methods described in text may be

limited. For example, the information conveyed by an unclassified summary will be decidedly less helpful to the entity than the classified information itself. But limited utility is very different from no utility. An

unclassified summary is analogous to privilege logs in the context of discovery disputes, yet their use is routine. See Fed. R. Civ. P. 26(b)(5); see

also MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986)

(holding that, on a motion for attorney fees, the requesting party must disclose its time sheets to the other party, redacted as necessary where protected by the attorney-client privilege). 

18072 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
Indeed, OFAC has not defended its failure to provide an

unclassified summary or access by a lawyer with the proper

security clearance on the ground that any such measure would

have implicated national security. Instead, OFAC asserts that

any mechanism would be unduly burdensome. OFAC points

to the large number of designated persons and argues that any

of the proposed measures could overwhelm the agency,

diminishing its ability to carry out its important mission of

protecting national security.

We acknowledge the agency’s abstract concerns but find

that they have little practical reality. Here, for instance, OFAC

eventually presented a list of unclassified reasons to AHIFOregon, which could have been augmented by a short unclassified summary of classified evidence. The small expenditure

in time and resources would not outweigh the entity’s interest

in knowing the charges and evidence against it. In fact, OFAC

has provided just such a summary in a different case. See

KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner (KindHearts I), 647 F. Supp. 2d 857, 868 (N.D. Ohio

2009) (noting that OFAC had provided “an unclassified threepage summary of the classified evidence” to the entity under

investigation).

[13] We understand from the parties that many (and likely

most) of the designated persons are not United States citizens

or entities. That conclusion is unsurprising given that EO

13,224 primarily targets “foreign persons.”

11 Many of those

persons likely cannot assert the due process protections that

are available to AHIF-Oregon, a United States entity. See

NCORI, 251 F.3d at 201 (holding that “a foreign entity without property or presence in this country has no constitutional

11Compare EO 13,224, § 1(a), (b) (blocking the assets of “foreign persons listed in the Annex” and “foreign persons” listed in the future that

meet certain requirements), with id. § 1(c), (d) (blocking the assets of

“persons” listed in the future, provided that certain other, more onerous

requirements are met). 

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18073
rights, under the Due Process Clause or otherwise” (internal

quotation marks omitted)); see also Aguilera-Montero v.

Mukasey, 548 F.3d 1248, 1253 (9th Cir. 2008) (discussing the

“significant” “distinction” between those aliens who have

entered the United States and those who have not: “Aliens

standing on the threshold of entry are not entitled to the constitutional protections provided to those within the territorial

jurisdiction of the United States.” (internal quotation marks

omitted)). So far as we can tell from the record in this case,

very few designated persons respond to OFAC at all, let alone

with requests for mitigation measures concerning classified

information. In any event, if OFAC becomes inundated by

mitigation requests in the future, the agency properly can raise

that issue before the appropriate court. For purposes of this

case, we hold that the small burden on the agency of providing mitigation measures does not outweigh the potential value

to AHIF-Oregon. OFAC’s failure to pursue potential mitigation measures violated AHIF-Oregon’s due process rights.

[14] We note that we are not the first court to reach this

conclusion. In KindHearts II, 710 F. Supp. 2d at 657-60, the

district court surveyed the sparse case law on this topic and,

having viewed the material in camera, concluded that, in the

circumstances of that case, the government must “expeditiously declassify and/or summarize” its classified information and that, “[i]f declassification or summarization of

classified information is insufficient or impossible,” the government must permit a lawyer for the plaintiff to view the

classified information under a protective order. We agree that

a case-by-case approach is proper. As we have alluded to earlier, the proper measures in any given case will depend on a

number of factors. We expect the agency (and, if necessary,

the district court) to consider, at a minimum, the nature and

extent of the classified information, the nature and extent of

the threat to national security, and the possible avenues available to allow the designated person to respond more effectively to the charges.

18074 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
2. Adequate Notice and Meaningful Opportunity to

Respond

AHIF-Oregon argues that OFAC violated its due process

rights by failing to provide adequate notice and a meaningful

opportunity to respond to OFAC’s designation and redesignation determinations. Specifically, AHIF-Oregon asserts that

OFAC refused to disclose its reasons for investigating and

designating AHIF-Oregon, leaving AHIF-Oregon unable to

respond adequately to the agency’s unknown suspicions.

“Due process requires notice ‘reasonably calculated, under

all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present

their objections.’ ” United Student Aid Funds, Inc. v.

Espinosa, 130 S. Ct. 1367, 1378 (2010) (quoting Mullane v.

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).

“ ‘Due process is flexible and calls for such procedural protections as the particular situation demands.’ ” Gilbert v.

Homar, 520 U.S. 924, 930 (1997) (brackets omitted) (quoting

Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Once again,

the Mathews balancing test applies. Foss, 161 F.3d at 589.

At the outset, we note that AHIF-Oregon wisely does not

challenge OFAC’s decision not to provide pre-deprivation

notice. As the district court noted, and as many courts have

held, the potential for “asset flight” almost certainly justifies

OFAC’s decision not to provide notice before freezing the

assets. See Holy Land, 333 F.3d at 163-64; Global Relief, 315

F.3d at 754. Instead, AHIF-Oregon challenges the alleged

failure to provide adequate notice and a meaningful opportunity to respond during the four-year period between the freezing of the assets in February 2004 and the redesignation

determination in February 2008.12

12Notice and a meaningful opportunity to respond are, in many circumstances, two different inquiries. Here, however, they are two sides of the

same coin. No one disputes that OFAC permitted AHIF-Oregon the

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18075
In the first seven months, OFAC gave AHIF-Oregon no

statement of reasons. OFAC did provide some unclassified

documents to AHIF-Oregon and requested that AHIF-Oregon

provide a copy of a Koran. But OFAC neither explained the

relevance of the documents nor provided a statement of reasons for its investigation. After receiving the documents and

request for a copy of a Koran, AHIF-Oregon took a guess at

what reasons OFAC might possibly have had in mind. Some

of those guesses ended up being correct (the $150,000 check

to Chechens), and some of those guesses ended up being

incorrect (distribution of Korans). In the entire four-year

period, only one document could be viewed as supplying

some reasons for OFAC’s investigation and designation decision. Seven months after blocking AHIF-Oregon’s assets,

OFAC issued a press release that explained some of OFAC’s

reasons for the designation.13 In particular, the press release

stated that AHIF-Oregon had provided support to Chechen

terrorists and attempted to conceal that activity.

[15] We hold that all three Mathews factors support the

conclusion that OFAC violated AHIF-Oregon’s due process

rights. First, OFAC’s blocking notice deprived AHIF-Oregon

of its ability to use any funds whatsoever, for any purpose.

Second, because AHIF-Oregon could only guess (partly

opportunity to submit evidence and arguments during the pendency of

OFAC’s determinations. The dispute concerns whether OFAC adequately

apprised AHIF-Oregon of its reasons for considering designation and

redesignation. If there was inadequate notice, then there was an inadequate

opportunity to respond. But if there was adequate notice, then there was

an adequate opportunity to respond. Although they are both implicated, we

refer in text generally to adequate notice because, in the circumstances

here, the two inquiries collapse. 

13OFAC also sent a letter to AHIF-Oregon one week after the 2004

press release. But that letter contains no statement of reasons. The letter

states that OFAC had designated AHIF-Oregon pursuant to EO 13,224,

§ 1(c), (d); those provisions contain all the general reasons for which an

entity such as AHIF-Oregon may be designated. 

18076 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
incorrectly) as to the reasons for the investigation, the risk of

erroneous deprivation was high. Finally, and perhaps most

importantly, although national security might justify keeping

AHIF-Oregon in the dark, OFAC makes no effort to demonstrate that its failure to provide AHIF-Oregon with reasons for

its investigation promoted national security. OFAC presents

three different arguments to justify its failure to provide a

statement of reasons.

First, OFAC argues that its September 2004 press release

constituted sufficient notice. We agree with OFAC that the

press release states with some clarity that AHIF-Oregon supported Chechen terrorists (the third reason given in the 2008

redesignation notice). OFAC also claims that there was sufficient information in the press release to apprise AHIF-Oregon

of OFAC’s concern about control by Al-Aqil and Al-Buthe

(the first and second reasons given in the 2008 redesignation

notice). But, as the district court correctly pointed out, the

press release stated nothing about ownership or control of

AHIF-Oregon. OFAC provided notice concerning only one of

three reasons for its investigation and designation, and that

notice occurred seven months after it froze AHIF-Oregon’s

assets. Such a significantly untimely and incomplete notice

does not meet the requirements of due process.

Second, OFAC argues that it was impractical to provide

reasons to AHIF-Oregon during the four-year investigation.

We are unpersuaded for many of the same reasons, just discussed, concerning OFAC’s failure to provide mitigation

measures regarding the classified information. It is clear that

OFAC had its reasons for investigating AHIF-Oregon (otherwise its investigation would be unjustified), so the summary

of those reasons would not present a practical burden. Moreover, as discussed above, it appears that very few of the entities under investigation request a statement of reasons or are

even entitled to the protections of the Due Process Clause.

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18077
We can envision situations in which OFAC acts so quickly

between the original deprivation and its decision to designate

that it may be impractical to provide a statement of reasons.

But the seven-month period of the original investigation, and

certainly the four-year period of the entire redesignation

determination, gave OFAC ample time to provide AHIFOregon with, at a minimum, a terse and complete statement

of reasons for the investigation. There is no reason why

OFAC could not have given notice in this particular case.14 If

a notice requirement is unduly burdensome in some future

case, OFAC may present that argument to the appropriate

court.

Finally, OFAC argues that the circumstances of its investigation and the documentation that it submitted to AHIFOregon provided that entity with sufficient information from

which AHIF-Oregon could guess OFAC’s reasons. In any

event, OFAC asserts, AHIF-Oregon’s guesses proved partly

correct. We have rejected that argument in an analogous situation; the opportunity to guess at the factual and legal bases for

a government action does not substitute for actual notice of

the government’s intentions.

In Gete v. INS, 121 F.3d 1285, 1287-91 (9th Cir. 1997), the

INS seized motor vehicles from certain aliens and offered

only summary process of the aliens’ requests to recover those

vehicles. The INS argued, similarly to OFAC here, that nothing required additional process and, in any event, the motor

vehicle “owners will frequently have at least a general idea of

the factual basis for the seizure.” Id. at 1297. We disagreed

and held that the Due Process Clause required the INS “to

give sufficient notice concerning the factual and legal bases

14Indeed, at oral argument, counsel for OFAC disavowed the argument

that OFAC could not have given timely notice to AHIF-Oregon in this

particular case. See Oral Arg. Transcript at 44:20 (Counsel for OFAC:

“Your Honor, I am not arguing—my argument today is not that [OFAC]

could not have noticed [AHIF-Oregon]. That is not the argument.”). 

18078 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
for its seizures.” Id. With respect to the argument that the

owners likely could guess as to the reasons, we held that,

“without knowing the exact reasons for the seizure, as well as

the particular statutory provisions and regulations they are

accused of having violated, [the owners] may not be able to

clear up simple misunderstandings or rebut erroneous inferences drawn by the INS.” Id. We held that the Due Process

Clause required the INS to disclose the “factual bases for seizure[ ]” and “the specific statutory provision allegedly violated.” Id. at 1298.

[16] Although our decision in Gete arose in a different

context, OFAC has not attempted to explain why the different

context matters. We find Gete’s reasoning equally applicable

here: In the absence of national security concerns, due process

requires OFAC to present the entity with, at a minimum, a

timely statement of reasons for the investigation.

Our conclusion also is supported by the analysis of the district court in KindHearts I, 647 F. Supp. 2d at 901-08. In that

case, the district court found a due process violation in the

identical context (designation by OFAC under EO 13,224 of

a non-profit organization) with startlingly similar facts. OFAC

blocked the entity’s assets but gave no statement of reasons

until “approximately thirty-four months after the block pending investigation, and approximately eighteen months after its

provisional determination to designate.” Id. at 903. The court

held that the notice was constitutionally inadequate and failed

to provide a meaningful opportunity to respond. Id. at 904-08;

see id. at 901 (“Constitutionally sufficient notice should give

the party an understanding of the allegations against it so that

it has the opportunity to make a meaningful response.”).

OFAC leans heavily on two decisions by the District of

Columbia Circuit. In NCORI, 251 F.3d at 208-09, the court

addressed what process is due in the closely similar context

of designation of a foreign terrorist organization under

AEDPA. In that case, the government had provided no notice

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18079
at all and no opportunity for the entity to be heard. Id. at 208.

The court held that due process requires notice of pending

designation, a copy of the unclassified administrative record,

and an opportunity to respond. Id. at 208-09. That court did

not address the issue at hand here: whether the notice must

contain some statement of reasons for the investigation. Thus

the court did not state that the government must supply its

reasons for investigating.

Similarly, in Holy Land, 333 F.3d at 164, the District of

Columbia Circuit addressed a challenge to OFAC’s designation under EO 13,224, including the argument that OFAC

provided insufficient process. Applying NCORI, the court

rejected the due process argument:

Treasury notified both Holy Land [“HLF”] and the

district court that it was reopening the administrative

record and considering whether to redesignate HLF

as an SDGT [specially designated global terrorist],

on the basis of additional evidence linking HLF and

Hamas. Holy Land was then given thirty-one days to

respond to the redesignation and the new evidence.

Holy Land did respond and the Treasury considered

its response as well as the new evidence before

deciding to redesignate HLF in May 2002. Therefore, Treasury provided HLF with the requisite

notice and opportunity for response necessary to satisfy due process requirements.

Id.

Both decisions by the District of Columbia Circuit may

suggest that a statement of reasons is not required by due process, because neither decision mentions that issue. But it

appears that the plaintiffs in those cases never raised that specific issue and that the notice given in Holy Land sufficiently

stated the reasons for the investigation. We do not read those

decisions as holding definitively that due process does not

18080 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
require a statement of reasons. In any event, to the extent that

the District of Columbia Circuit decisions are in tension with

our decision in Gete, we are bound to follow our decision.

Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en

banc). We hold that OFAC violated AHIF-Oregon’s due process rights by failing to provide an adequate statement of reasons for its investigation.

3. Harmlessness of the Procedural Due Process Violations

[17] Although OFAC violated AHIF-Oregon’s procedural

due process rights, we may grant judicial relief only if the

errors were prejudicial. OFAC argues that, to the extent that

it violated AHIF-Oregon’s due process rights, any error was

harmless and no prejudice ensued. AHIF-Oregon responds

that the violations at issue here are “structural” and not subject to harmlessness analysis. AHIF-Oregon argues, in the

alternative, that the errors were not harmless.

We disagree with AHIF-Oregon that the procedural due

process violations at issue here are “structural errors” that per

se undermine the proceedings. The Supreme Court has never

held that an error in the civil context is structural.15 M.L. v.

Fed. Way Sch. Dist., 394 F.3d 634, 654 (9th Cir. 2005)

(Gould, J., concurring). And even in the criminal context, the

Supreme Court “ha[s] found an error to be structural, and thus

subject to automatic reversal, only in a very limited class of

15AHIF-Oregon asserts that “the Supreme Court appears to have”

applied structural error in Caperton v. A.T. Massey Coal Co., 129 S. Ct.

2252 (2009). In Caperton, the Court held that a justice of the West Virginia Supreme Court violated due process by failing to recuse himself

from a case in which one party was an “extraordinary” donor to the justice’s reelection campaign. The Court remanded “for further proceedings

not inconsistent with [its] opinion.” Id. at 2267. Given the Court’s silence

on the issue of harmlessness and its open-ended remand, we decline to

read that case as a landmark case—the first of its kind according to AHIFOregon—concerning an issue that the Court failed even to mention. 

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18081
cases.” Neder v. United States, 527 U.S. 1, 8 (1999) (internal

quotation marks omitted).

[18] AHIF-Oregon likens its situation to that of a criminal

defendant who is convicted of a charge not included in the

indictment. See Stirone v. United States, 361 U.S. 212, 219

(1960) (“Here, . . . we cannot know whether the grand jury

would have included in its indictment [the additional] charge

. . . . This was fatal error.”). But there are significant differences between criminal and civil proceedings, even here,

where the deprivation of property is great. We do not hold

that an error in a civil context can never be structural, but we

do hold that the errors here—failure to mitigate the use of

classified information and failure to provide sufficiently

detailed notice—do not undermine the proceedings so fundamentally that we cannot ask whether the error was harmless.

See KindHearts II, 710 F. Supp. 2d at 654 (holding that, at

least with respect to the constitutionally inadequate notice in

that case, the errors were not structural).

Turning to the harmless-error analysis, we face another

threshold question: the burden of proof. Quoting Tennessee

Secondary School Athletic Ass’n v. Brentwood Academy, 551

U.S. 291, 303 (2007), the district court held that OFAC bore

the burden of demonstrating that the procedural due process

violations were “harmless beyond a reasonable doubt.”

Although the district court’s reliance on Brentwood Academy

is understandable, we hold that the district court erred. In that

case, the Supreme Court stated, without elaboration on the

proper standard, that “[e]ven accepting the questionable holding that [the agency’s] closed-door deliberations were unconstitutional, we can safely conclude that any due process

violation was harmless beyond a reasonable doubt.” Id.

We do not read the Court’s statement as resolving the

proper standard of proof in the civil context. Because the

Supreme Court in Brentwood Academy did not explain its

choice of the “reasonable doubt” standard and did not cite any

18082 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
cases supporting the use of that standard, we read its use of

the demanding “beyond a reasonable doubt” standard simply

as illustrating how clear it was that the purported error in that

case was harmless.

Just two years later, the Court addressed that specific issue

and clarified that “we have placed such a burden [to prove

harmlessness] on the appellee only when the matter underlying review was criminal.” Shinseki v. Sanders, 129 S. Ct.

1696, 1706 (2009). Because this is not a criminal case, AHIFOregon has the burden of proving that the error was harmful.

See id. (“[T]he burden of showing that an error is harmful

normally falls upon the party attacking the agency’s determination.” (collecting cases)); see also id. at 1705 (noting the

potential for “abuse of the judicial process and diminish[-

ment] [of] the public’s confidence in the fair and effective

operation of the judicial system” where the courts set “an evidentiary barrier so high that it could never be surmounted

. . . , namely, reversing for error regardless of its effect on the

judgment” (internal quotation marks omitted)); Cal. Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072, 1092 (9th

Cir. 2011) (“Certainly, Sanders clarifies that the burden of

showing an agency’s deviation from the APA was not harmless rests with the petitioner . . . .”); cf. Lata v. INS, 204 F.3d

1241, 1246 (9th Cir. 2000) (“To prevail on a due process

challenge to deportation proceedings, [the alien] must show

error and substantial prejudice. A showing of prejudice is

essentially a demonstration that the alleged violation affected

the outcome of the proceedings; we will not simply presume

prejudice.” (citations omitted)). 

AHIF-Oregon must establish that, had it been provided the

process it was due, it could have, and plausibly would have,

taken steps to undermine OFAC’s 2008 redesignation such

that OFAC would not have made the redesignation or that

substantial evidence would not have supported the redesignation.16 In Part A, we held that substantial evidence supports

16Under our jurisprudence, in certain contexts, an error that had a “bearing on the procedure used” is not harmless. Cal. Wilderness Coal., 631

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18083
two of the three reasons given by OFAC: ownership or control by Al-Buthe and AHIF-Oregon’s support of designated

entities and persons. As we explain below, AHIF-Oregon

could not have undermined OFAC’s conclusion that AHIFOregon supported designated persons. Accordingly, we need

not determine whether AHIF-Oregon could have undermined

OFAC’s conclusion that Al-Buthe’s control supported its designation determination.

[19] Initially, we note that, as discussed in Part B-2, OFAC

did provide some notice to AHIF-Oregon of its concerns

related to AHIF-Oregon’s support of designated persons as a

branch office of AHIF-Saudi Arabia. Among other things,

AHIF-Oregon had notice about the $150,000 check to the

Chechens, so it had a full opportunity to respond to that allegation. Its failure to alleviate OFAC’s concerns, even with

some notice, suggests that additional information would not

have made a difference. Additionally, there is little that

AHIF-Oregon could have done about the history and genesis

of its organization, including its connections to the larger

AHIF organization. Viewing the record as a whole, including

the classified information, we conclude that the procedural

due process violations related to AHIF-Oregon’s support of

designated persons were harmless. Even if AHIF-Oregon had

enjoyed better access to classified information and constitutionally adequate notice, we are confident that it would not

have changed OFAC’s ultimate designation determination.

F.3d at 1092 (internal quotation marks omitted); but see id. at 1109-10

(Ikuta, J., dissenting) (arguing that our rule has been superseded by Sanders). As we recently explained, that rule does not apply where “[t]he

notice requirement was not an end in itself.” Id. at 1092 (majority). “If a

failure of notice had no effect on the [final substantive] determination . . . ,

there could be no harm; the failure of notice by itself was of no consequence.” Id. Here, we hold that notice is not “an end in itself.” Notice provides fairness to the designated entity and facilitates full disclosure of

information. But, where OFAC would have arrived at the same determination even with adequate notice, any error is harmless. 

18084 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
We therefore affirm the district court’s dismissal of the due

process claims.

C. Fourth Amendment

AHIF-Oregon argues that OFAC’s failure to obtain a warrant supported by probable cause violated its Fourth Amendment right to be free of unreasonable seizures. “In the

ordinary case, the [Supreme] Court has viewed a seizure of

personal property as per se unreasonable within the meaning

of the Fourth Amendment unless it is accomplished pursuant

to a judicial warrant issued upon probable cause and particularly describing the items to be seized.” United States v.

Place, 462 U.S. 696, 701 (1983). In most circumstances,

searches and seizures conducted without a warrant are “per se

unreasonable under the Fourth Amendment—subject only to

a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). Here,

OFAC argues that its seizure falls within one of those welldelineated exceptions to the warrant requirement: the “special

needs” exception.

1. “Special Needs” Exception

[20] “The ‘special needs’ exception is ‘an exception to the

general rule that a search [or seizure] must be based on individualized suspicion of wrongdoing.’ ” Friedman v. Boucher,

580 F.3d 847, 853 (9th Cir. 2009) (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 54 (2000)). “Under this exception, suspicionless searches [and seizures] may be upheld if

they are conducted for important non-law enforcement purposes in contexts where adherence to the warrant-andprobable cause requirement would be impracticable.” Id.

(internal quotation marks and emphasis omitted); see also

Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (“[W]e have

permitted exceptions when special needs, beyond the normal

need for law enforcement, make the warrant and probablecause requirement impracticable.” (internal quotation marks

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18085
omitted)). AHIF-Oregon concedes that OFAC blocking orders

are “conducted for important non-law enforcement purposes,”

specifically, to prevent the funding of terrorist organizations.

But the parties dispute whether the application of the warrant

requirement would be impracticable.

The Supreme Court has held that the “special needs”

exception applies in several different contexts. The exception

requires a weighing of the nature and extent of the privacy

interest at hand against the nature and immediacy of the government’s concerns and the efficacy of the procedures

employed in meeting those concerns. Bd. of Educ. v. Earls,

536 U.S. 822, 830-34 (2002). Because those interests vary

with the factual context, a brief survey of the major cases is

helpful.

In Camara v. Municipal Court, 387 U.S. 523 (1967), the

Court held that periodic, routine building inspections for

health code reasons fell within the exception. The Court

explained that (1) “such programs have a long history of judicial and public acceptance”; (2) “the public interest demands

that all dangerous conditions be prevented or abated, yet it is

doubtful that any other canvassing technique would achieve

acceptable results”; and (3) the searches “involve a relatively

limited invasion of the urban citizen’s privacy.” Id. at 537.

In O’Connor v. Ortega, 480 U.S. 709 (1987), the Court

held that a government employer may search the files and

drawers of its employees for work-related reasons. The Court

held that “requiring an employer to obtain a warrant whenever

the employer wished to enter an employee’s office, desk, or

file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome.” Id. at 722 (plurality); see also id. at 732 (Scalia, J.,

concurring) (agreeing with the plurality’s “special needs”

conclusion). Additionally, “the privacy interests of government employees in their place of work . . . , while not insubstantial, are far less than those found at home or in some other

18086 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
contexts.” Id. at 725 (plurality); see also Nat’l Treasury

Employees Union v. Von Raab, 489 U.S. 656, 665-67 (1989)

(holding that drug testing of Customs employees falls within

the “special needs” exception for similar reasons).

In Earls, 536 U.S. at 825, the Court held that a public

school’s policy of requiring drug testing of all students participating in extracurricular activities fell within the “special

needs” exception. “A student’s privacy interest is limited in

a public school environment . . . .” Id. at 830. Because the

school conducted the test with many procedural safeguards

and used the results only in connection with permitting the

student to participate in extracurricular activities, the Court

held that, “[g]iven the minimally intrusive nature of the sample collection and the limited uses to which the test results are

put, we conclude that the invasion of students’ privacy is not

significant.” Id. at 834. Finally, the Court considered the

school’s strong interest in “preventing drug use by schoolchildren,” especially because of “specific evidence of drug use”

at the school in question. Id.

In Griffin, 483 U.S. at 875-80, the Court held that a probation officer’s search of a probationer’s home on a tip by a

police officer that the probationer illegally possessed a gun

fell within the exception. The Court emphasized that

“[p]robation is simply one point . . . on a continuum of possible punishments.” Id. at 874. “A warrant requirement would

interfere to an appreciable degree with the probation system,”

particularly because “the delay inherent in obtaining a warrant

would make it more difficult for probation officials to respond

quickly to evidence of misconduct.” Id. at 876. Moreover,

“[a]lthough a probation officer is not an impartial magistrate,

neither is he the police officer who normally conducts

searches against the ordinary citizen. He . . . is also supposed

to have in mind the welfare of the probationer.” Id. Overall,

the Court concluded that “the probation regime would . . . be

unduly disrupted” by requiring probable cause and a warrant.

Id. at 878. “[I]t is both unrealistic and destructive of the whole

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18087
object of the continuing probation relationship to insist upon

[a showing of probable cause].” Id. at 879.

In Michigan Department of State Police v. Sitz, 496 U.S.

444 (1990), and United States v. Martinez-Fuerte, 428 U.S.

543 (1976), the Court held that traffic checkpoints where officers screened vehicles for intoxicated drivers or illegal aliens

survived Fourth Amendment scrutiny. In both cases, the

Court’s decision resulted largely from the “minor interference” involved in responding to a traffic checkpoint.

Martinez-Fuerte, 428 U.S. at 565; see Sitz, 496 U.S. at 451

(holding that the intrusion on motorists is “slight”); see also

New York v. Burger, 482 U.S. 691, 702 (1987) (holding that

“the owner or operator of commercial premises in a ‘closely

regulated’ industry has a reduced expectation of privacy” such

that the Fourth Amendment warrant and probable-cause

requirements “have lessened application in this context”).

Finally, in Skinner v. Railway Labor Executives’ Ass’n, 489

U.S. 602 (1989), the Court held that railroads may administer

blood, urine, and breath tests for railroad employees who are

involved in certain train accidents. The Court held that a warrant “would do little to further the[ ] aims” of the Fourth

Amendment because, in the context of a regulatory scheme in

which privacy intrusions “are defined narrowly and specifically in the regulations that authorize them, and doubtless are

well known to covered employees,” “there are virtually no

facts for a neutral magistrate to evaluate.” Id. at 622. The

Court also noted that the value of the results of most of the

tests would be greatly diminished, or even eliminated, by the

delay that obtaining a warrant would cause. Id. at 623.

[21] Here, the domestic entity’s interest in being free from

blocking orders is great. A blocking order effectively shuts

down the private entity. Indeed, blocking orders do so by

design. Unlike in the Court’s other cases, such as a one-time

drug test, a search of files at a person’s office, a search of a

home while on probation, or a brief traffic stop, there is no

18088 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
limited scope or scale to the effect of the blocking order. The

only limit is temporal, and that limitation is quite small. Once

OFAC concludes its investigation (which took more than half

a year here), then the party has a right to very limited judicial

review and a right to request administrative reconsideration.

Both of those actions take considerable time, as the facts of

this case and other cases, such as KindHearts, demonstrate. In

the meantime, the entity’s doors are closed.

[22] Additionally, OFAC’s potential reach is extensive.

Unlike the Court’s cases, which concerned well-defined

classes of persons such as probationers, public school students, public employees at work, drivers on the road, and so

on, OFAC can issue a blocking order against any person

within the United States or elsewhere. And, of course, OFAC

does so without warning. There certainly is no “long history

of judicial and public acceptance.” Camara, 387 U.S. at 537.

Relatedly, unlike in the school and probation cases, in which

those persons who conduct the search or seizure also are

entrusted with protecting the targeted person’s interests,

OFAC is not at all tasked with protecting the interests of the

blocked entities.

[23] On the other side of the scale, the government’s interest in preventing terrorism and the funding of terrorism is

extremely high. But the sensitive subject matter is no excuse

for the dispensing altogether with domestic persons’ constitutional rights. Cf. Hamdi, 542 U.S. 507 (holding that due process required that a United States citizen being held as an

“enemy combatant” be given a meaningful opportunity to

contest his detention). Rather, the dispositive question here is

whether it is impracticable for OFAC to achieve its undeniably important aims without securing a warrant.

On this point, OFAC asserts that it does not and cannot

know the location of the assets it seeks to block and must rely

on property holders other than the blocked entity to identify

such assets. OFAC also asserts that it would be impractical to

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18089
update its warrants whenever it discovered additional assets

owned by the entity. Finally, OFAC asserts that the timing of

its blocking orders is coordinated with other governments,

which makes it impractical to obtain a warrant.

[24] We are not persuaded. As an initial matter, we reiterate that the number of designated persons located within the

United States appears to be very small. The warrant requirement therefore will be relevant in only a few cases. In any

event, we are puzzled by OFAC’s concerns related to the

allegedly unknown location of the entity’s assets. In order to

block assets effectively, OFAC must know which assets it is

blocking.

We acknowledge that the issue of “asset flight” is a legitimate concern; that coordination may be required with different agencies of this government or even with foreign

governments; and that additional assets may be discovered in

the future. To the extent that those concerns are present in any

given situation, OFAC can protect its interest in stopping the

funding of terrorism by seizing the assets initially pursuant to

an emergency exception to the warrant requirement, see

United States v. Deemer, 354 F.3d 1130, 1132 (9th Cir. 2004)

(describing the emergency exception); or pursuant to a carefully circumscribed warrant, cf. United States v. Tamura, 694

F.2d 591, 595-96 (9th Cir. 1982) (permitting, in some

instances involving intermingled documents, the seizure of

many documents followed by the ability to seek a warrant for

material not initially covered by a warrant). After OFAC has

blocked the assets so that asset flight is foreclosed, OFAC

then can obtain a warrant specifying the particular assets.

[25] In any event, OFAC has not given us any reason why

it could not have obtained a warrant here. We hold that the

“special needs” exception does not apply to the seizure of

AHIF-Oregon’s assets by OFAC under EO 13,224. See KindHearts II, 647 F. Supp. 2d at 879-82 (holding that the “special

needs” exception did not apply to very similar facts).

18090 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
2. “General Reasonableness” Test

OFAC also argues that, apart from any well-delineated

exception to the warrant requirement, its blocking orders “are

not susceptible to Fourth Amendment challenges” because

they are per se reasonable under the “general reasonableness”

test. “ ‘[R]easonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security’ ”

is the “touchstone” of Fourth Amendment analysis. Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (quoting Terry

v. Ohio, 392 U.S. 1, 19 (1968)).

Ordinarily, the reasonableness of governmental action is

established by obtaining a warrant or by falling within one of

the well-delineated exceptions to the warrant requirement.

Katz, 389 U.S. at 357. OFAC has directed us to a few cases,

however, in which the Supreme Court has analyzed whether

a warrantless search was reasonable in the totality of the

circumstances—without reference to any specific exception.

Samson v. California, 547 U.S. 843 (2006); United States v.

Flores-Montano, 541 U.S. 149 (2004); United States v.

Knights, 534 U.S. 112 (2001). We will assume for the purpose

of our discussion (but do not decide) that the “ ‘general

Fourth Amendment approach,’ ” Samson, 547 U.S. at 848

(quoting Knights, 534 U.S. at 118), applies equally to warrantless seizures. But see KindHearts I, 647 F. Supp. 2d at

878-79 (holding that there is no general “reasonableness”

approach to warrantless seizures).

Under this approach, “we examine the totality of the circumstances to determine whether a [seizure] is reasonable

within the meaning of the Fourth Amendment.” Samson, 547

U.S. at 848 (internal quotation marks and brackets omitted).

“Whether a search is reasonable is determined by assessing,

on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is

needed for the promotion of legitimate governmental interests.” Id. (internal quotation marks omitted).

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18091
Most of our reasoning above, concerning the special needs

exception, applies equally here. The cases in which the Court

has found warrantless searches to be reasonable all involve

very special circumstances and greatly diminished privacy

interests—a point repeatedly emphasized by the Court. For

instance, in Flores-Montano, 541 U.S. at 154, the Court held

that a person’s privacy interest in the interior of an automobile’s gas tank is not sufficient to overcome the government’s

interest in preventing drug smuggling at the border. Similarly,

in Samson and Knights, the Court explained at length that probationers and parolees, who are subject to a clearly disclosed

search condition of parole or probation, have greatly diminished expectations of privacy such that warrantless searches

survived Fourth Amendment scrutiny. Samson, 547 U.S. at

850-52; Knights, 534 U.S. at 119-21. Here, however, as we

have explained, the reach of OFAC’s authority extends to all

persons and entities, without limitation. Nothing diminishes

the privacy expectation of persons and entities potentially

subject to seizure by OFAC because that class includes everyone.

[26] We reiterate that OFAC’s interest in preventing terrorism is extremely high. But we cannot accept OFAC’s contention that its blocking orders are per se reasonable in all

circumstances, solely by virtue of that vital mission. As we

noted above, an exception to the warrant requirement would

permit OFAC to seize assets without obtaining a warrant in

some situations. But, because there is no diminished expectation of privacy and because nothing prevents OFAC from

obtaining a warrant in the normal course, we reject OFAC’s

argument that its blocking orders are per se reasonable under

the “general reasonableness” approach.17

17OFAC also mentions two district court decisions, Islamic Am. Relief

Agency v. Unidentified FBI Agents, 394 F. Supp. 2d 34, 48 (D.D.C. 2005);

Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57,

78-79 (D.D.C. 2002). In both of those cases, the court held, with no analysis whatsoever, that a blocking order does not constitute a “seizure” for

18092 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
[27] In summary, no exception applies to OFAC’s warrantless seizure of AHIF-Oregon’s assets and the seizure is not

justified under a “general reasonableness” test. We therefore

hold that OFAC violated AHIF-Oregon’s Fourth Amendment

right to be free of unreasonable seizures. Because the district

court did not reach the issue of remedy and because the parties did not brief that issue before us, we remand to the district

court to determine, in the first instance, what remedy, if any,

is available.

D. First Amendment

Section 2(a) of EO 13,224 prohibits any person from making “any contribution of . . . services to or for the benefit of”

designated entities. MCASO “seeks to engage in advocacy

coordinated with and for the benefit of AHIF-Oregon.”

MCASO argues that the prohibition against its coordinated

advocacy violates the First Amendment.

We are guided by the Supreme Court’s decision in Holder

v. Humanitarian Law Project (“HLP”), 130 S. Ct. 2705

(2010). In that case, the government had designated certain

entities as “foreign terrorist organizations” under AEDPA. Id.

at 2713. Two United States citizens and six domestic organizations wished to provide aid to the peaceful portion of the

designated entities’ activities but feared prosecution under 18

U.S.C. §§ 2339A and 2339B. HLP, 130 S. Ct. at 2713-14.

Those provisions criminalize the provision of any “service” or

“material support” to AEDPA-designated entities. 18 U.S.C.

§ 2339A(b)(1); id. § 2339B(a)(1); see also HLP, 130 S. Ct. at

2715 (describing the relevant legislative history). The plainFourth Amendment purposes. We do not find the unexplained conclusion

persuasive. See KindHearts II, 647 F. Supp. 2d at 871-72 (explaining the

errors of the other district court opinions and rejecting the argument that

the seizure of assets under EO 13,224 is not a “seizure” for Fourth

Amendment purposes). 

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18093
tiffs desired to provide certain specified services and to conduct coordinated advocacy with the AEDPA-designated

entities. HLP, 130 S. Ct. at 2714. In a pre-enforcement action,

the plaintiffs challenged the statute’s application to those proposed activities. Id.

The Supreme Court rejected the plaintiffs’ vagueness challenge to the term “service.” Id. at 2721-22. The Court held

that it was clear that the term “service” “refers to concerted

activity, not independent advocacy.” Id. at 2721. Accordingly,

although the statute prohibits coordinated advocacy, the statute permits independent advocacy. Id. at 2722. The plaintiffs

had posed many hypothetical questions about what constitutes

coordinated advocacy, as opposed to independent advocacy.

Id. But the Court held that those challenges were unripe in the

context of a pre-enforcement challenge:

The problem with these questions is that they are

entirely hypothetical. Plaintiffs have not provided

any specific articulation of the degree to which they

seek to coordinate their advocacy with the [designated entities]. They have instead described the form

of their intended advocacy only in the most general

terms. See, e.g., Brief for Plaintiffs 10-11 (plaintiffs

“would like, among other things, to offer their services to advocate on behalf of the rights of the Kurdish people and [one entity] before the United Nations

and the United States Congress” (internal quotation

marks and alteration omitted)); App. 59 (plaintiffs

would like to “write and distribute publications supportive of [one entity] and the cause of Kurdish liberation” and “advocate for the freedom of political

prisoners in Turkey”).

Deciding whether activities described at such a

level of generality would constitute prohibited “service[s]” under the statute would require sheer

speculation—which means that plaintiffs cannot pre18094 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
vail in their preenforcement challenge. It is apparent

with respect to these claims that gradations of fact or

charge would make a difference as to criminal liability, and so adjudication of the reach and constitutionality of the statute must await a concrete fact

situation.

Id. (alteration in original) (citation and some internal quotation marks omitted).

The Court next discussed the plaintiffs’ as-applied challenge to the statute’s ban on “material support.” The Court

rejected the government’s argument that only intermediate

scrutiny applied. Id. at 2723-24. The Court held that strict

scrutiny applied because, at least on the facts of that case, the

statute regulated speech because of its content. Id. The Court

then turned to whether the statute’s ban on material support

was necessary to further the (concededly high) interest of

combating terrorism. Id. at 2724.

The Court upheld the statute’s constitutionality as applied

to the plaintiffs’ desired conduct. Id. at 2724-30. The Court

first explained that, at least with respect to the activities

desired by the plaintiffs, three rationales existed. Id. First, the

Court held that “[m]oney is fungible.” Id. at 2725. When a

terrorist organization receives support for any end, even

peaceful ends, it frees up the organization’s funds for other,

sinister ends. Id. at 2725-26. In a footnote, the Court

explained that this line of reasoning applies even if the support, such as the provision of non-financial material help, is

not itself fungible. Id. at 2726 n.6. Second, the Court held that

support “also importantly helps lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups

to persist, to recruit members, and to raise funds—all of

which facilitate more terrorist attacks.” Id. at 2725. In

response to the dissent’s argument that there is no natural

stopping place for the legitimacy concern, the Court

responded that “Congress has settled on just such a natural

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18095
stopping place: The statute reaches only material support

coordinated with or under the direction of a designated foreign terrorist organization.” Id. at 2726. Third, the Court held

that “[p]roviding foreign terrorist groups with material support in any form also furthers terrorism by straining the

United States’ relationships with its allies and undermining

cooperative efforts between nations to prevent terrorist

attacks.” Id. The Court explained that the Republic of Turkey

actively was at war with one of the entities and “would hardly

be mollified by the explanation that the support was meant

only to further those groups’ ‘legitimate’ activities.” Id.

The Court then “turn[ed] to the particular speech plaintiffs

propose to undertake.” Id. at 2729. The Court held that Congress permissibly could ban the plaintiffs’ proposed training

of the entities’ members “on how to use humanitarian and

international law to peacefully resolve disputes.” Id. “It is

wholly foreseeable that the [entity] could use the specific

skills that plaintiffs propose to impart as part of a broader

strategy to promote terrorism. The [entity] could, for example,

pursue peaceful negotiation as a means of buying time to

recover from short-term setbacks, lulling opponents into complacency, and ultimately preparing for renewed attacks.” Id.

(citation, internal quotation marks, and brackets omitted). The

Court concluded that “[t]his possibility is real, not remote.”

Id.

The Court next held that Congress permissibly could ban

the plaintiffs’ proposal to teach entities’ members “how to

petition various representative bodies such as the United

Nations for relief.” Id. (internal quotation marks omitted). The

Court held that the relief that the entities could seek might

include monetary relief and, again noting that “[m]oney is

fungible,” the Court concluded that those funds “could be

redirected to funding the group’s violent activities.” Id.

With respect to the plaintiffs’ proposed coordinated advocacy, however, the Court again punted. Id. The Court held

18096 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
that, as it had explained earlier, the “plaintiffs do not specify

their expected level of coordination” with the entities; their

“proposals are phrased at such a high level of generality that

they cannot prevail in this preenforcement challenge.” Id.

In addition to not reaching the challenge concerning coordinated advocacy, the Court expressly limited its holdings to the

particular facts of the case. Id. at 2729-30. Most relevant here,

the Court stated that “[w]e . . . do not suggest that Congress

could extend the same prohibition on material support at issue

here to domestic organizations.” Id. at 2730; see also id. at

2712 (“We do not . . . address the resolution of more difficult

cases that may arise under the statute in the future.”).

[28] With that discussion in mind, we analyze the provision at issue here—section 2(a) of EO 13,224—and

MCASO’s proposed activities. Section 2(a) of EO 13,224 and

the statutory provision at issue in HLP both prohibit the provision of “services” to an entity that has been designated, albeit

under different statutory authorities, by the executive branch

as a terrorist organization. For purposes of the First Amendment analysis, we see no difference between section 2(a) of

EO 13,224 and the statute at issue in HLP. Accordingly, as

both parties suggest, we must apply the Supreme Court’s

decision in HLP. Two immediate results follow.

First, as OFAC readily concedes, MCASO is free to conduct a practically limitless range of independent activities to

express its view that AHIF-Oregon should not be designated.

On that topic, it may petition the government or the United

Nations, hold press conferences, lobby the public, purchase

advertisements, conduct demonstrations, organize an educational conference, and so on. It is only coordinated activities

—those activities done, for instance, on behalf of AHIFOregon or in coordination with AHIF-Oregon—that EO

13,224 prohibits.

Second, we must apply strict scrutiny to EO 13,224’s prohibition. HLP, 130 S. Ct. at 2724. Accordingly, the prohibiAL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18097
tion survives only if it is narrowly tailored to advance the

concededly compelling government interest of preventing terrorism. San Jose Christian Coll. v. City of Morgan Hill, 360

F.3d 1024, 1031 (9th Cir. 2004). Regulations subject to strict

scrutiny “almost always violate the First Amendment.” Dish

Network Corp. v. FCC, No. 10-16666, 2011 WL 3449485, at

*5 (9th Cir. Aug. 9, 2011). But not always, as HLP instructs.

We turn, then, to the facts of this case.

Although both this case and HLP involve the proposed provision of services to a designated entity, the facts of this case

differ from HLP’s in two significant ways. First, in HLP, the

plaintiffs proposed to conduct “coordinated advocacy” with

the designated entities, but only in the most general terms.

Because the plaintiffs had failed to specify what activities it

would conduct, the Court held that the pre-enforcement challenge could not proceed.

Here, however, MCASO has specified in some detail the

activities in which it wishes to engage. In particular, MCASO

avers in the complaint that, in coordination with AHIFOregon and on its behalf, it desires to “speak[ ] to the press,

hold[ ] demonstrations, and contact[ ] the government.” In its

brief before us, MCASO explains that it would like to “organiz[e] public education activities in conjunction with AHIFOregon.” At oral argument, MCASO’s lawyer said that the

organization would like to issue a “coordinated press release”

and to conduct a “coordinated press conference.”

18

OFAC does not assert that these proposed activities are so

general as to preclude pre-enforcement challenge. We agree.

Like the proposed training activities reviewed by the Supreme

Court in HLP, 130 S. Ct. at 2729, MCASO’s proposed activi18We also note that MCASO is no stranger to AHIF-Oregon. MCASO

explains in the complaint that it has engaged in coordinated activities with

AHIF-Oregon in the past and “would like to continue to work with [AHIFOregon] in its former activities.” 

18098 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
ties here are specific enough that we may review the First

Amendment challenges in this pre-enforcement action.

The second significant difference between this case and

HLP is the nature of the designated entity. The entities in HLP

were wholly foreign, whereas AHIF-Oregon is, at least in

some respects, a domestic organization. On this point, the parties offer divergent views. MCASO asserts that AHIF-Oregon

is a wholly domestic organization, so HLP does not apply. See

id. at 2730 (“We also do not suggest that Congress could

extend the same prohibition on material support at issue here

to domestic organizations.”). In OFAC’s view, AHIF-Oregon

is nothing more than a branch office of the larger global AHIF

organization. Because AHIF-Oregon is a part of a foreign

organization, OFAC argues, AHIF-Oregon is no different

than the designated foreign terrorist organizations in HLP,

and HLP controls here.

Both parties oversimplify the issue. AHIF-Oregon is neither wholly domestic nor wholly foreign. It is a domestic

organization because it is incorporated under Oregon law, it

is physically located in Oregon, it has funds in domestic bank

accounts, and it has conducted most of its activities in the

United States. But it also has ties to the larger AHIF organization because of the overlap between its founding members

and those of foreign entities and because of its interactions

and communications with AHIF-Saudi Arabia and other

AHIF branches. We therefore reject both parties’ facile

descriptions of the domestic or foreign nature of AHIFOregon. The extent to which the entity is domestic or foreign

matters only to the extent that it bears on the three rationales

advanced by the Supreme Court in HLP, to which we now turn.19

19OFAC has not advanced, and we cannot think of, any additional rationales that might support the ban on coordinated advocacy. We therefore

limit our discussion to the three rationales advanced by the Court in HLP.

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18099
1. Money is Fungible

The Supreme Court upheld the prohibition of specified services related to an entity’s peaceful ends in significant part

because “[m]oney is fungible.” Id. at 2725. Funds raised by

an entity for its peaceful ends can be directed to its terrorist

objectives and, at the very least, giving money for one purpose frees up funds that can be used in aid of terrorism. Id.

at 2725-26. As the Court clarified in a footnote, the same reasoning applies to non-financial gifts, such as the provision of

services. Id. at 2726 n.6. The wholly foreign entities at issue

in HLP had ready access to funds through their foreign coffers; indeed, the entities were engaged in an active war with

Turkey. Id. at 2726-27. Additionally, the record showed that

the entities had used funds that had been raised for humanitarian purposes to pursue violent activities. Id. at 2725-26.

This rationale has very little force with respect to

MCASO’s proposed activities. To the extent that coordinated

advocacy with MCASO could free up AHIF-Oregon’s assets

for sinister purposes, AHIF-Oregon has no assets available.

OFAC has frozen all of AHIF-Oregon’s assets.

OFAC responds that AHIF-Oregon is nothing more than a

branch office of the larger, international AHIF organization

and that the global organization has unfrozen assets in foreign

countries. This is a fair point. As discussed earlier, substantial

evidence supports OFAC’s view that AHIF-Oregon is a

branch office of the larger AHIF organization. Viewed as a

singular entity, MCASO’s coordinated advocacy with AHIFOregon theoretically could free up funds held by the larger

AHIF organization for terrorist activities. But that theoretical

possibility goes only so far.

The larger AHIF organization is not entirely a singular

entity. MCASO seeks to advocate with and on behalf of

AHIF-Oregon, not the larger AHIF organization. We do not

question that the support of a domestic branch office could aid

18100 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
the larger international organization to some extent. But, in

contrast to the direct aid to the wholly foreign organization at

issue in HLP and the clear possibility of freeing up assets, the

link between the services at issue here and the freeing of

resources is less direct and more speculative.

Relatedly, in HLP specific evidence, in the form of sworn

affidavits, demonstrated that the entities had siphoned off

humanitarian funding for violent purposes. By contrast, there

is no evidence that, since the designation of AHIF-Oregon,

the larger AHIF organization has spent any funds, or would

spend any funds, supporting AHIF-Oregon. In the many years

since its designation, the larger AHIF organization apparently

has left AHIF-Oregon to its own, frozen devices. It is only

speculative to conclude that aiding AHIF-Oregon with its

public relations campaign would free up resources heretofore

not spent by the larger AHIF organization. In addressing the

plaintiffs’ first proposed activity in HLP, the Court found that

the possibility of the designated entities using the training for

sinister purposes “is real, not remote.” 130 S. Ct. at 2729.

With respect to the plaintiffs’ other proposed activity in HLP,

the Court found that the training could be used to receive

“monetary relief.” Id. We do not suggest that OFAC’s concerns here are unfounded; we hold only that the connection

between the provision of services and the freeing of funds for

terrorist activities is much more attenuated here than in HLP.

2. Legitimacy Concerns

The Supreme Court’s second rationale was that coordinated

advocacy would help legitimize a terrorist organization,

which “makes it easier for those groups to persist, to recruit

members, and to raise funds—all of which facilitate more terrorist attacks.” Id. at 2725. This rationale applies with almost

equal force here. MCASO’s coordinated advocacy with

AHIF-Oregon would increase that organization’s legitimacy,

which could aid its ability to persist and to recruit members.

Additionally, although there is some attenuation, as discussed

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18101
above, coordinated advocacy with AHIF-Oregon might aid

the larger AHIF organization’s efforts to raise funds.

We note, however, that this rationale is not particularly

strong. As noted above, an organization may advocate vigorously on behalf of the designated entity so long as that advocacy is independent. We see only a small difference, for

purposes of determining the legitimizing effect, between a

vigorous independent advocacy campaign and a coordinated

advocacy campaign. Because the Supreme Court did not

reach the issue of “coordinated advocacy,” we do not know

its view on whether this rationale would apply to pure-speech

activities like a coordinated press conference. We will assume

that there is some small additional legitimization by being

able, for instance, to state that a legitimate organization’s public relations campaign is “on behalf of” a designated entity or

to coordinate efforts with the designated entity.

3. Foreign Policy Concerns

The Supreme Court’s final rationale was that “[p]roviding

foreign terrorist groups with material support in any form also

furthers terrorism by straining the United States’ relationships

with its allies and undermining cooperative efforts between

nations to prevent terrorist attacks.” Id. at 2726. In HLP, the

government supported that rationale with a sworn affidavit

describing “a violent insurgency waged by” one of the foreign

designated entities against Turkey and describing the direct

effect of foreign activities of the designated entities on the

foreign relations of the United States. Id. The Republic of

Turkey “would react sharply to Americans furnishing material

support to foreign groups . . . and would hardly be mollified

by the explanation that the support was meant only to further

those groups’ ‘legitimate’ activities. From Turkey’s perspective, there likely are no such activities.” Id. at 2726-27.

Like the rationale concerning the fungibility of money, we

conclude that this rationale has some, but very little, force

18102 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
here. Unlike the specific evidence of ongoing conflicts

between the foreign organization and an ally of the United

States, OFAC here offers only past conduct by other branches

of the larger AHIF organization as evidence of potential strain

in the United States’ foreign relations. Moreover, the Supreme

Court’s concern about foreign nations’ perception of “Americans furnishing material support to foreign groups,” id. at

2726 (emphasis added), is diminished to some extent here

because MCASO seeks to assist only AHIF-Oregon, a domestic branch of AHIF. Admittedly, foreign nations may not

appreciate that distinction fully, just as the Court noted that

nations may not appreciate the legitimate/illegitimate distinction. But the ability of the United States to explain that it permits coordinated advocacy only and with respect to only the

domestic branch of AHIF distinguishes this case from the

direct training of a wholly foreign organization actively at war

with an ally, at issue in HLP.

4. Conclusion

[29] The Supreme Court’s rationales in HLP apply to the

circumstances here, but they apply much more weakly. As the

Supreme Court instructed, prohibitions against the content of

speech, such as those here, must survive strict scrutiny. For

that reason, and because the Court carefully circumscribed its

analysis in HLP, we are hesitant to apply that decision to facts

far beyond those at issue in that case. See 130 S. Ct. at 2712

(“We do not . . . address the resolution of more difficult cases

. . . .”); id. at 2730 (“[W]e in no way suggest that a regulation

of independent speech would pass constitutional muster, even

if the Government were to show that such speech benefits foreign terrorist organizations.”); id. (“We . . . do not suggest

that Congress could extend the same prohibition on material

support at issue here to domestic organizations.”). Indeed, the

Court’s analysis applied only to the two forms of direct training that the plaintiffs sought to provide to the designated entities in that case. The Court specifically declined to decide

whether Congress permissibly could ban coordinated advoAL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18103
cacy, such as the advocacy sought here by MCASO. In the

final analysis, HLP involved wholly foreign organizations

currently at war with a United States ally, involved specific

evidence concerning the continuing terrorist activities of those

organizations and the ability of those organizations to mis-use

the support offered by the plaintiffs, and involved proposed

training that had a “real, not remote” possibility of furthering

terrorism. Id. at 2729. By contrast, we address a domestic

branch of an international organization with little evidence

that the pure-speech activities proposed by MCASO on behalf

of the domestic branch will aid the larger international organization’s sinister purposes. In these circumstances, we hold

that OFAC’s content-based prohibitions on speech violate the

First Amendment. We therefore reverse the district court’s

dismissal of Plaintiffs’ First Amendment claim.

CONCLUSION

In summary, we hold as follows:

1. Substantial evidence supports the redesignation of

AHIF-Oregon as a specially designated global terrorist under

EO 13,224, for two of the three reasons advanced by OFAC.

We affirm the district court’s ruling to that effect under the

Administrative Procedure Act.

2. OFAC may rely on classified information to make a

designation decision. But OFAC violated AHIF-Oregon’s

Fifth Amendment right to due process by failing to provide

constitutionally adequate notice and a meaningful opportunity

to respond, and by failing to mitigate the use of classified

information by, for example, preparing and disclosing an

unclassified summary. Nonetheless, because the outcome of

the designation process in this instance would not have been

altered by respecting those due process rights, those constitutional errors were harmless and no judicial relief is available

to AHIF-Oregon. Again, we affirm the district court’s ruling.

18104 AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY
3. OFAC violated AHIF-Oregon’s Fourth Amendment

right to be free from unreasonable seizures when it froze that

domestic entity’s assets without ever obtaining a warrant.

Accordingly, we reverse the district court’s contrary ruling.

With respect to any potential remedy, because the parties did

not brief the issue and because the district court has not ruled

on it, we remand for that court to consider, in the first

instance, what relief, if any, may be available to AHIFOregon.

4. MCASO has a First Amendment right to engage in the

forms of coordinated advocacy that it seeks, such as holding

a joint press conference with AHIF-Oregon. The contentbased prohibitions on MCASO’s speech violate the First

Amendment. We therefore reverse the district court’s dismissal of Plaintiffs’ First Amendment claim.

AFFIRMED in part, REVERSED in part, and

REMANDED. The parties shall bear their own costs of

appeal.

AL HARAMAIN ISLAMIC v. U.S. DEP’T OF TREASURY 18105