Is the Obama State Department Above the Rule of Law?

One of the chief contentions by those supporting President Obama's candidacy for president in 2008 was that his administration would change, change, change. In particular, the promise was made repeatedly that the rule of law would be followed, and followed strictly. Above all, human rights were to be safeguarded zealously.

How steep a decline that aspiration has undergone in the intervening years was made clear in a judgment of the US Court of Appeals for the District of Columbia Circuit, issued on June 1, 2012. The case involved a suit on behalf of members of the PMOI (People's Mojahedin Organization of Iran (PMOI/MEK)), a prominent Iranian dissident group dedicated to the replacement of the existing regime in Iran with that of a secular democracy (Disclosure: the author is presently involved with other attorneys in representing the PMOI/MEK in its efforts to be removed from the State Department List of Foreign Terrorist Organizations). The PMOI sued because it was fed up with the State Department's persistent refusal to remove it from the Foreign Terrorist Organization (FTO) list despite a previous order of the same Court requiring that this be done unless the State Department demonstrated valid reasons to justify the contrary.

For years the PMOI had been seeking a reasoned explanation from the State Department for keeping them on that list when they had been taken off similar lists in the UK and in the EU because no evidence existed of any capacity or intent on their part to engage in terrorist activity.

Frustrated by the State Department's conduct in flouting Congressional dictates and federal court concerns about violations of due process, the PMOI sought to compel the State Department to either provide compelling reasons for its listing, or face having the Court of Appeals on its own authority, take the PMOI off the FTO list.

In its June 1 decision, the US Court of Appeals severely chastised the State Department for "egregiously" failing to follow not only Congressional directives mandating due process to anyone designated as a FTO, but an earlier decision by the Court. Accordingly, it ordered the State Department to either provide compelling reasons for the listing within four months, or face removal by the Court of the FTO designation.

The ruling in In Re: People's Mojahedin Organization of Iran took note of the fact that the State Department claimed that it could not be sure that the PMOI had in fact meaningfully renounced terrorism unless it could check what was left of Camp Ashraf when all of its over 3,000 residents would be moved to Camp Liberty -- a detention center -- pending potential resettlement. Camp Ashraf had been the headquarters for the PMOI resistance for over two decades and had been repeatedly searched from top to bottom by the US military as well as by Iraqi forces. Nothing indicating any PMOI potential for violence had been found. A number of senior US military officials had indeed testified before Congress on this point. Nevertheless the Court generously extended an additional four months to the State Department to conduct further investigation.

The Court also made clear to Secretary of State Clinton that it saw no merit in any of her arguments for further delay due to her foreign policy engagements. Indeed it is astonishing, in the light of Obama presidential campaign promises to respect the law and especially law protecting human rights, that the State Department would even have made such an argument. Addressing it, the Court stated: "We have been given no sufficient reason why the Secretary, in the last 600 days, has not been able to make a decision which the Congress gave her only 180 days to make."

Does any of this matter to the average American? Of course it does. Because what is at issue is not simply the fate of the PMOI, but whether an agency of the federal government that we were told would advance the rule of law and human rights can now trample on them. For make no mistake, the State Department's brief was essentially an argument in favor of unfettered license to act as it pleased even when human rights are at stake and regardless of congressionally imposed timetables where it believed, however fancifully, that such delay might further its own vague and murky political objectives -- presumably in this case, doing whatever it could to soothe Iran, that paragon of respect for human rights, by not de-listing its main political opponent in the hope, likely vain, that this would lead Iran to abandon its nuclear ambitions.

Being labeled a terrorist entity is one of the harshest denunciations there is, and this is compounded when, as here, the lives of PMOI members interned in Iraq, a government unfriendly to them, are endangered. For this reason, the ruling of the Court of Appeals today is to be lauded by all Americans concerned with civil liberties and with their callous disregard by a government that had promised the contrary to all.

Allan Gerson is the Chairman of AG International Law in Washington D.C. He is presently involved with other attorneys in representing the PMOI/MEK in its efforts to be removed from the State Department List of Foreign Terrorist Organizations.