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United States v. Afshari

April 14, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
1) HOSSEIN KALANI AFSHARI 2) MOHAMMAD HOSSEIN OMIDVAR 3) HASSAN REZAIE 4) ROYA RAHMANI 5) NAVID TAJ 6) MOUSTAFA AHMADY 7) ALIREZA MOHAMMADMORADI DEFENDANTS



The opinion of the court was delivered by: David O. Carter United States District Judge

ORDER DENYING DEFENDANTS' MOTION TO ALLOW DEFENDANTS TO CHALLENGE THE MEK'S DESIGNATION AS A FOREIGN TERRORIST ORGANIZATION OR TO DISMISS COUNTS 59-117 (Motion No. 3)

Before the Court is Defendants' Roya Rahmani, Alireza Mohammadmoradi, Moustafa Ahmady, Hossein Kalani Afshari, Hassan Rezaie, Navid Taj, and Mohammad Hossein Omidvar ("Defendants") Motion to Allow Defendants to Challenge the MEK's Designation as a Foreign Terrorist Organization or to Dismiss Counts 59-117 (the "Motion"). After considering the moving, opposing, and replying papers, as well as the parties' oral argument, the Court hereby DENIES Defendants' Motion.

Defendants bring the instant Motion on various grounds, arguing that a portion of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") -- to wit, 8 U.S.C. §1189(a)(8) -- can be read to authorize the judicial examination of its constitutionality. Further, Defendants argue that, if such review is precluded, 8 U.S.C. §1189 ("Section 1189") must be held to be unconstitutional under the U.S. Constitution's separation of powers principles articulated in Article III, the First and Sixth Amendments, and the Due Process Clause of the Fifth Amendment. The relevant portion of Section 1189 states, in pertinent part: If an organization has been designated to be a Foreign Terrorist Organization ("FTO") under paragraph (2)(B) of Section 1189, "a defendant in a criminal action or an alien in a removal proceeding shall not be permitted to raise any question concerning the validity of the issuance of such designation as a defense or an objection at any trial or hearing." 8 U.S.C. §1189(a)(8). The Court addresses each of Defendants' arguments in turn.

I. Procedural Posture

The issues raised by Defendants are not novel and, indeed, many have been raised and addressed by our sister courts. The U.S. Government indicted the Defendants in March 2001 based upon the Secretary of State's designations of the Mujahedin-e Khalq ("MEK") as an FTO. In June of 2001, the D.C. Circuit held that while the process by which those designations were promulgated violated procedural due process, it need not vacate the Secretary's designations. NCRI v. State Dep't, 251 F.3d 192, 209 (D.C. Cir. 2001). Instead, mindful of the "realities of the foreign policy and national security concerns raised by the Secretary," as well as the fact that the designations were set to expire within months, the NCRI Court "remand[ed] the questions to the Secretary with instructions that the petitioners be afforded the opportunity to file responses to the nonclassified evidence against them, to file evidence in support of their allegations that they are not terrorist organizations, and that they be afforded an opportunity to be meaningfully heard by the Secretary upon the relevant findings." Id. Stated differently, the D.C. Circuit found that while the initial FTO determination violated procedural due process under the Fifth Amendment, the Secretary could and would remedy said problems by following the D.C. Circuit's instructions on re-affirmation of the MEK's FTO designation. Id.

Subsequently, Defendants sought dismissal of their indictment in this case, asking the Central District of California to bar the Government from using the 1997 and 1999 designations as a basis for the instant criminal prosecution in light of the NCRI decision. Judge Takasugi found for Defendants on these claims, holding that it would violate the Due Process Clause to allow Section 1189(a)(8)'s limitation on judicial review to prevent Defendants' constitutional challenge to the designation from being heard. U.S. v. Rahmani, 209 F.Supp.2d 1045 (C.D.Cal., 2002). However, in October of 2005 the Ninth Circuit reversed the Rahmani decision, finding that any violation of the MEK's procedural due process rights occurring during the MEK's designation as an FTO was harmless. U.S. v. Afshari, 426 F.3d 1150 (9th Cir. 2005).

As explained below, the issues raised by Defendants in the instant motion constitute an attempt to re-litigate a significant number of issues which, while admittedly complex and have already been adjudicated by both the Ninth Circuit and the D.C. Circuit.

II. Section 1198(a)(8) is Subject to Judicial Review for Constitutionality

Defendants' first argue that Section 1198 should be construed so as to authorize review of the validity of the MEK's designation as an FTO. In so arguing, Defendants state the long-held principle of statutory construction that "every reasonable construction must be resorted to in order to save a statute from unconstitutionality." INS v. St. Cyr, 533 U.S. 289, 300 n.12 (2001)(quoting Hooper v. California, 155 U.S. 648, 657 (1895)). Yet, rather than reading Section 1189 to bar review of constitutional claims (an admittedly unconstitutional construction), this Court finds that the AEDPA is subject to constitutional challenge, as it was in Afshari. The crucial point is that the Afshari Court held that 1189(a)(8) is not unconstitutional.

For the foregoing reasons, the Court finds that 1189(a)(8) is subject to judicial review for constitutionality, yet this does not significantly impact the Court's decision with respect to the issues raised in the instant Motion as the both the Ninth Circuit and the D.C. Circuit have already addressed the constitutionality of Section 1189(a)(8).

III. Only the MEK Itself May Challenge the Validity of Its Designation as an FTO

Defendants' next argue that this Court should construe Section 1189(a)(8) to preserve judicial authority to examine the validity of the designation in this case. More specifically, Defendants contend that they should be permitted to argue that the MEK does not meet the criteria for designation as a terrorist organization, rather than arguing that the designation as a whole was invalid (a point which the D.C. Circuit has already ruled upon). That is a distinction without a difference as both the plain text of Section 1189 and the D.C. Circuit's holding in NCRI make plain that a criminal defendant may not raise "any question concerning the validity of the issuance of" an FTO designation. 8 U.S.C. 1189(a)(8). Further, in NCRI the Ninth Circuit upheld the constitutional validity of Congress' decision to permit challenges to FTO designations only where brought by the FTO itself, as opposed to a challenge brought by an individual. Afshari, 426 F.3d at 1154-58 (citing 8 U.S.C. §1189(c) ["Not later than 30 days after publication in the Federal Register of a designation, an amended designation, or a determination in response to a petition for revocation, the designated organization may seek judicial review in the United States Court of Appeals for the District of Columbia Circuit."]). In so holding, the Ninth Circuit explained that this congressional restriction "avoids the awkwardness of criminalizing material support for a designated organization in some circuits but not others, as varying decisions in the different regional circuits might." Id. at 1155.

For the foregoing reasons, the Court finds that Section 1189(a)(8) does not permit Defendants to challenge the validity of the MEK's designation as an FTO. In so holding the Court is mindful of the deeply troubling fact that many FTO designations may be completely immune from challenge because no individual may ever challenge the designation and, as a practical matter, most organizations may not be able to challenge the designation on their behalf -- even if it is unconstitutional. However, principles of vertical stare decisis prevent this Court from altering the holdings of either the 9th Circuit or the D.C. Circuit.

IV. Article III Does not Require an Independent Examination of the MEK's Designation as an FTO ...


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