2 Groups Appeal U.S. Designation as Terror Organizations
By Bill Miller and Thomas W. Lippman
The Washington Post
Sunday, March 14, 1999
Two groups designated by the Clinton administration as foreign terrorist
organizations have turned to the American courts for vindication, waging
the most significant challenge yet to a 1996 antiterrorism law and the
way the State Department designates U.S. enemies.
The People's Mojahedin Organization of Iran and Sri Lanka's Liberation
Tigers of Tamil Eelam have hired prominent lawyers to take their cases
to the D.C. Circuit of the U.S. Court of Appeals. They allege they were
designated as terrorists by Secretary of State Madeleine K. Albright in
October 1997 based on a mostly secret record and with no advance notice
or opportunity to respond.
The cases attack the constitutionality of the Antiterrorism and Effective
Death Penalty Act, which was passed to keep terrorist organizations from
gaining a foothold in the United States. The two organizations are among
30 on the State Department's list, a designation that freezes the groups'
assets in the United States, makes it a crime punishable by up to 10 years
in prison for Americans who provide them money and denies U.S. visas to
group members.
The act was signed with much fanfare by President Clinton in April
1996 amid swelling concerns about the threat of terrorist bombings, hijackings,
assassinations and biological warfare. It provided for quicker deportations
of suspected alien terrorists, tougher penalties for terrorist crimes,
increased enforcement by the FBI and the measure to keep organizations
labeled as terrorist from raising money within the United States. From
the start, civil libertarians complained that the law was extreme and prone
to abuse--assertions being made by lawyers for the Mojahedin and Tamil
Tigers, the only organizations fighting their designations in the courts.
The Mojahedin, formed in Iran in the 1960s, oppose Iran's clergy-based
government and draw support from Iraq, where they maintain a military base.
The Tamil Tigers, formed in 1976, are locked in a secessionist war against
the government in Sri Lanka, which has a Sinhalese majority that the Tamils
say discriminates against them.
Both groups insisted in court that they do not engage in terrorism,
only acts of war with specific targets. The State Department maintains
that both organizations have carried out assassinations, bombings and other
actions that could threaten Americans at home and abroad.
Under the law, those designated as terrorist organizations have one
recourse: They can ask the appellate court to review the administrative
record to determine if the finding was unjust. Lawyers for the organizations
said the groups have a constitutional right to due process, meaning a chance
to be heard before the designations are made.
"We wanted to have a hearing where we would present our views,"
Jacob A. Stein, an attorney for the Mojahedin, said during a hearing on
both cases earlier this month. "We hoped that after being given the
views, the secretary would not make that designation. We were deprived
of that right."
Former attorney general Ramsey Clark, representing the Tamil Tigers,
said in court papers that the antiterrorism law is the product of hysteria,
arguing that "the demagogic cry of terrorism" leads to repressive
actions. He said labeling groups as terrorists is like the internment of
Japanese Americans during World War II.
Stein and Clark contended that their groups were put on the list by
Albright for political reasons, in what they called an abuse of the law.
The Mojahedin claimed they were branded terrorists by Albright as a friendly
overture to Iran. The Tamil Tigers claimed the United States favors the
Sri Lankan government.
A similar argument was raised by a group of Palestinian activists who
went to the Supreme Court to protest the U.S. government's efforts to deport
them. The eight activists, associated with the Popular Front for the Liberation
of Palestine, contended that they were being removed for political views.
The Supreme Court ruled last month that illegal aliens have no constitutional
right to assert selective enforcement as a defense against deportation.
That ruling could cause problems for the Mojahedin and Tamil Tigers.
Justice Department lawyers defended the antiterrorism law, saying it
was passed in a climate of rising concerns fueled by incidents such as
the explosion of Pan Am Flight 103, the World Trade Center bombing and
the poison-gassing of the Tokyo subway system. They said Congress sought
to prohibit terrorist fund-raising in the United States to make it clear
that the country would not be a "staging ground" for terrorist
activities.
Because the organizations are foreign, they have no constitutional
rights, the Justice Department argued. The government's lawyers said the
State Department appropriately relied upon classified information, that
much of it cannot be shared with the groups for security reasons and that
Congress is not even required to give the organizations the opportunity
for appellate review.
The three judges who heard the appeal--A. Raymond Randolph, Stephen
F. Williams and James L. Buckley--repeatedly challenged Stein and Clark
during the oral arguments, particularly on their claims of constitutional
violations. Williams said the United States took similar measures against
Iraq after the siege of Kuwait and remarked, "As a constitutional
class, I'm just trying to figure out how this organization stands on a
stronger basis than Iraq."
Stein and Clark argued that the law affects the constitutional rights
of Americans who want to contribute to the organizations. But the judges
said restrictions can be placed on Americans because of foreign policy
concerns.
However, the judges also raised questions about a court's effectiveness
in reviewing the State Department's decisions. Because foreign policy enters
into the choices about whom to designate, and because the administrative
record is built on evidence selected only by the State Department, the
judges said the appellate review provided by the law appears limited.
Justice Department lawyers said the Tamil Tigers were responsible for
the assassination of former Indian prime minister Rajiv Gandhi in 1991,
the slaying of Sri Lankan President Ranasinghe Premadasa in 1993 and a
1996 explosion at the headquarters of the Central Bank of Sri Lanka that
killed 100 people. The group has many supporters in the United States,
including some who filed a lawsuit in California claiming a right to keep
providing donations.
The Mojahedin have been even more aggressive in waging a struggle for
acceptance in Washington, with mixed results. They acquired some support
in Congress, but were rebuffed by the White House and the State Department.
A State Department report in 1994 portrayed the group as a stooge of
President Saddam Hussein of Iraq and tainted by a long history of terrorism.
The report said the Mojahedin "participated physically" in holding
hostages at the U.S. Embassy in Tehran and are "known to have assassinated"
at least five Americans in Iran while the shah was in power in the 1970s.
Damning as it was, however, that report stirred anger in Congress because
the State Department did not interview anyone from the group in preparing
it. Senior members of the House International Relations Committee--including
Reps. Gary L. Ackerman (D-N.Y.), Dan Burton (R-Ind.) and Robert G. Torricelli
(D-N.J.), who is now a senator--issued statements criticizing the State
Department. They said Congress did not necessarily endorse the Mojahedin,
but wanted enough information to decide whether to do so.
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