Designations of Foreign Terrorist Organizations (FTO) by the Secretary of State under Section 1189 of the Antiterrorism and Effective Death Penalty Act of 1996 provide a key means of thwarting global terror networks by isolating and stigmatizing such groups, and by depriving them of financial and human support. This Comment examines the role of classified information in the FTO designation process and analyzes whether the Secretary’s reliance on classified information—to which designated FTOs do not have access—comports with the Due Process Clause of the Fifth Amendment, particularly when the classified record is essential to the Secretary’s determination.
To answer that question, this Comment first traces a series of cases in the U.S. Court of Appeals for the District of Columbia Circuit, the tribunal charged with hearing challenges to FTO designations, and argues that—notwithstanding statements by the court evincing a reluctance to resolve the issue—D.C. Circuit precedent has likely foreclosed access to the classified record by designated groups, even when the information withheld is essential to the Secretary’s designation decision.
This Comment then presents a constitutional due process analysis and argues that—because Section 1189 targets foreign (as opposed to domestic) organizations, which must establish substantial connections with the U.S. to receive due process protection—courts should be reluctant to grant FTOs constitutional protection for interests divorced from the contacts used to establish U.S. presence. Finally, this Comment ventures a comparative analysis by looking to a Cold War–era scheme similar to Section 1189 and to the contemporary cases dealing with habeas corpus in the terrorist detainment context.