Chai v. Department of State , 466 F.3d 125 ( 2006 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2006 Decided October 17, 2006
No. 03-1392
KAHANE CHAI, ET AL.,
PETITIONERS
v.
DEPARTMENT OF STATE AND
CONDOLEEZZA RICE, SECRETARY OF STATE,
RESPONDENTS
On Petition for Review of an Order of the
Secretary of State
Kenneth Klein argued the cause and filed the briefs for
petitioners.
Douglas N. Letter, Terrorism Litigation Counsel, U.S.
Department of Justice, argued the cause for respondent. With
him on the brief were Peter D. Keisler, Assistant Attorney
General, and Mark S. Davies, Attorney.
Before: GINSBURG, Chief Judge, and SENTELLE, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GINSBURG.
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GINSBURG, Chief Judge: In October 2003 Secretary of
State Colin Powell redesignated Kahane Chai as a Foreign
Terrorist Organization (FTO), redesignated Kach as an alias of
Kahane Chai, and newly designated Kahane.org as an alias of
Kahane Chai. After a de novo reconsideration in 2004, the
Secretary reaffirmed all three designations. The three entities
now petition for revocation of the 2003 designations. We
conclude the designations complied with applicable statutory
and constitutional requirements and, accordingly, we deny the
petition.
I. Background
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) authorizes the Secretary of State to designate an entity
as a FTO if the Secretary finds:
(A) the organization is a foreign organization;
(B) the organization engages in terrorist activity ... or
retains the capability and intent to engage in terrorist
activity or terrorism[]; and
(C) the terrorist activity or terrorism of the organization
threatens the security of United States nationals or the
national security of the United States.
8 U.S.C. § 1189(a)(1). “Terrorist activity” is defined, in
relevant part, as
any activity which is unlawful under the laws of the
place where it is committed ... and which involves any of
the following:
(IV) An assassination.
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(V) The use of any —
(a) biological agent, chemical agent, or
nuclear weapon or device, or
(b) explosive, firearm, or other weapon
or dangerous device (other than for mere
personal monetary gain),
with intent to endanger, directly or indirectly, the
safety of one or more individuals or to cause
substantial damage to property.
(VI) A threat, attempt, or conspiracy to do any of
the foregoing.
Id. § 1182(a)(3)(B)(iii). To “engage in terrorist activity”
includes, among other acts, “solicit[ing] funds or other things of
value for — (aa) a terrorist activity [or] (bb) a terrorist
organization.” Id. § 1182(a)(3)(B)(iv).
Designation as a FTO has three main consequences: (1)
“Except as authorized by the Secretary, any financial institution
that becomes aware that it has possession of, or control over,
any funds in which a foreign terrorist organization ... has an
interest shall ... retain possession of, or maintain control over
such funds,” 18 U.S.C. § 2339B(a)(2); (2) “Any alien who ... is
a representative ... of ... a terrorist organization,” 8 U.S.C. §
1182(a)(3)(B)(i), is “ineligible to receive visas and ineligible to
be admitted to the United States,” id. § 1182(a); (3) and it
becomes a crime to “knowingly provide[] material support or
resources to [the] foreign terrorist organization, or attempt[] or
conspire[] to do so,” 18 U.S.C. § 2339B(a)(1).
Kach and Kahane Chai, organizations the stated purpose of
which is to restore the biblical state of Israel, were declared
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terrorist organizations by the Israeli Cabinet in 1994 pursuant to
Israel’s 1948 Terrorism Law. The Secretary of State first
designated Kahane Chai and Kach as FTOs in 1997, Designation
of Foreign Terrorist Organizations, 62 Fed. Reg. 52,650, 52,650
(Oct. 8), and redesignated them as such in 1999, Designation of
Foreign Terrorist Organizations, 64 Fed. Reg. 55,112, 55,112
(Oct. 8), and 2001, Redesignation of Foreign Terrorist
Organizations, 66 Fed. Reg. 51,088, 51,089 (Oct. 5). In 2001
the Secretary also designated Kach and 16 other organizations
as aliases of Kahane Chai. Id. Neither Kahane Chai nor any of
its aliases sought judicial review of any of these designations.
On September 3, 2003 the Department of State wrote letters
to five persons it thought “might represent” Kahane Chai stating
that the Secretary proposed to redesignate Kahane Chai, Kach,
and Kahane Chai’s other aliases as FTOs. The notice stated that
the unclassified portion of the administrative record before the
Department would be provided to any representative of Kahane
Chai or of an alias who so requested within ten days from
receipt thereof; the representative would have 15 days from
receipt of the record to submit a response.
On September 16 Samuel Abady, Esq. sent a letter in which
he identified himself as counsel to one of the addressees of the
September 3 notice; noted his response was timely; conveyed
his client’s position that Kahane Chai, Kach, and the other
presumed aliases were “legitimate, Jewish activist organizations
... not one of [which] practices, supports or advocates
terrorism”; and demanded disclosure of the administrative
record. The Department of State deemed the letter defective
because it did not say Mr. Abady was requesting the record “as
a representative of Kahane Chai or one of its aliases.” On
October 1 Kenneth Klein, Esq. sent a letter to the Department in
which he identified himself as the attorney for a representative
of Kach and requested the record, but the Department deemed
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his letter untimely.
On October 2, 2003 Secretary of State Colin Powell
redesignated Kahane Chai as a FTO and Kach and 16 others as
aliases of Kahane Chai. Redesignation of Foreign Terrorist
Organizations, 68 Fed. Reg. 56,860, 56,861. At the same time
the Secretary newly designated 20 more entities as aliases of
Kahane Chai, including Kahane.org, newkach.org, Kahane.net,
and Kahanetzadak.com. Id. Drawing upon both classified and
unclassified information, the Secretary concluded that Kahane
Chai engaged in terrorist activity by (1) using explosives or
firearms with intent to endanger the safety of individuals or
cause substantial damage to property, (2) threatening and
conspiring to carry out assassinations, and (3) soliciting funds
and members for a terrorist organization. The Secretary also
concluded that Kahane Chai retains the capability and intent to
engage in terrorist activity.
After the petitioners had filed for judicial review of the
Secretary’s decision, the State Department agreed to provide Mr.
Klein and Mr. Abady, as representatives of Kahane Chai, with
the unclassified portion of the administrative record, to accept
relevant submissions for inclusion in the record, and to make a
de novo decision on redesignation. In 2004, the Secretary
conducted the de novo review and concluded that, although the
record included conflicting information on many of the
bombings previously attributed to Kahane Chai, the rest of the
record supported its redesignation. The Secretary also
concluded that Kahane.net was no longer an alias of Kahane
Chai and revoked its designation as a FTO, but left in place all
other designations as aliases of Kahane Chai. Foreign Terrorists
and Terrorist Organizations, 70 Fed. Reg. 4,186 (Jan. 28, 2005).
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II. Analysis
The three petitioners, in a joint brief, raise both statutory
and constitutional objections to their designations. First, they
argue the designations were made without substantial support in
the administrative record. Second, they contend the State
Department’s refusal to provide them with the administrative
record prior to the 2003 designations denied them due process,
in violation of the Fifth Amendment to the Constitution of the
United States. Third, the petitioners allege that designating a
website as a FTO violates the First Amendment to the
Constitution. Finally, the petitioners contend the State
Department discriminated upon the basis of religion because it
designated as FTOs the websites only of Jewish organizations.
A. Statutory Claims
Our standard of review is deferential. Under the AEDPA
(as amended by Pub. L. No. 104-208, § 356, 110 Stat. 3009,
3009-644 (1996)) we are to set aside the Secretary’s designation
of a FTO only if that designation was
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or
immunity;
(C) in excess of statutory jurisdiction, authority, or
limitation, or short of statutory right;
(D) lacking substantial support in the administrative
record taken as a whole or in classified information
submitted to the court ... or
(E) not in accord with the procedures required by law.
8 U.S.C. § 1189(c). Our review is to be “based solely upon the
administrative record, except that the Government may submit,
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for ex parte and in camera review, classified information used in
making the designation.” Id. Moreover, we make no judgment
as to the accuracy of the information in the record; “our only
function is to decide if the Secretary, on the face of things, had
enough information before [him] to come to the conclusion that
the organizations were foreign and engaged in terrorism.”
People's Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d
17, 25 (D.C. Cir. 1999) (PMOI I).
The petitioners challenge as a denial of due process the
Secretary’s use of classified information in designating them
FTOs. We need not resolve that claim, however, for in this case
we can uphold the designations based solely upon the
unclassified portion of the administrative record. See People’s
Mojahedin Org. of Iran v. Dep’t of State, 327 F.3d 1238, 1243
(D.C. Cir. 2003) (PMOI II); id. at 1245 (Edwards, J.,
concurring).
1. Redesignation of Kahane Chai as a FTO
The petitioners assert the Secretary’s finding Kahane Chai
threatened an assassination is based upon a faulty interpretation
of the record. In response, the Department notes the Secretary
based his conclusion upon four documents. The first is a
transcript of a July 1, 2002 radio broadcast by the Jerusalem
Voice of Israel Network reporting that death threats had been
made against Israeli police officers investigating the “Jewish
terrorist squad case,” an apparent reference to the attempted
bombing by right-wing extremists of an Arab school for girls.
An activist with ties to Kach was arrested in connection with the
bombing. The second document is an article in the November
3, 2003 newspaper Ma’ariv reporting that Kach activists had
organized demonstrations near the house of “one of the heads”
of the Jewish Affairs Division of the Shin Bet (General Security
Service) to protest the conditions of the detained members of the
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“Jewish terrorist squad” accused of the attempted bombing. The
protestors had sprayed graffiti spelling out the official’s name
(the publication of which was banned), and demanding he “stop
abusing Jews.” The official’s wife is quoted as saying, “Our
family is facing harassment and threats.” The third document is
a May 28, 2003 summary by the Foreign Broadcast Information
Service (FBIS) of news reports indicating right-wing activists,
including members of Kach, had launched a “personal
incitement campaign” against then–Prime Minister Sharon. The
fourth document summarizes a July 2003 radio broadcast by the
Jerusalem Voice of Israel Network reporting that “Shin Bet
Director Dichter said ... the threat to the life of Prime Minister
Sharon had grown” and “there was a threat from ... several
dozen Kahanist extremists.” The Secretary held these four
documents sufficient evidence to support the redesignation of
Kahane Chai and we agree.
The petitioners apparently assume that if the record does not
expressly tie Kahane Chai to a threat of assassination, then the
Secretary may not designate it as a FTO on that ground. We do
not read “substantial support” so narrowly; rather, the record
need provide only a sufficient basis for a reasonable person to
conclude that Kahane Chai was likely behind such a threat. See
PMOI I, 182 F.3d at 25; cf. Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938) (“substantial evidence” standard requires
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion”).
In this case the record indicates — and the petitioners do
not deny — that Kahane Chai venerates Baruch Goldstein
because he massacred 29 Arab worshippers at the Al-Haram
Al-Ibrahimi (Sanctuary of Abraham) or Tomb of the Patriarchs
in Hebron. Following the attack Kahane Chai issued a statement
calling Goldstein a “hero” and in 2002 its alter ego Kach went
so far as to advertise a summer camp for children the program
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of which included “a pilgrimage to [Goldstein’s] grave.”
Kahane Chai’s glorification of the murderous Goldstein, though
hardly dispositive, surely makes more credible the evidence
supporting the organization’s involvement in threats of
assassination.
With this in mind, the Secretary reasonably found Kahane
Chai was responsible for the death threats made in 2002 against
the police officers investigating the Jewish terrorist squad case.
The record does not identify any one group as being responsible
for the threats, but the evidence suggests Kach was involved in
the underlying crime. A man described in a cable from the
American Consulate in Jerusalem to the Secretary of State as “a
leader” of Kach — which is to say, Kahane Chai — was
“reportedly arrested in connection with the attempted bombing.”
Clearly, Kach/Kahane Chai took a strong interest in the affair,
as indicated by the demonstrations at the home of the Shin Bet
official. Surely the Secretary could reasonably conclude that an
organization (1) known to approve of terrorist tactics, including
the mass murder of Arab worshippers, (2) possibly linked to the
attempted bombing of an Arab school, and (3) demonstrably
interested in the latter affair, was responsible for the death
threats made against the officers investigating that crime.
(Kahane Chai does not argue that death threats against police
officers are not threats of assassination and we therefore take the
point as conceded.)
Finally, the Secretary reasonably found Kahane Chai had
threatened the life of then–Prime Minister Sharon. Shin Bet
Director Avi Dichter warned of an increased threat to Sharon’s
life based upon comments from both “right-wing Jewish
extremists and Palestinian terrorist organizations,” including
among the former “several dozen Kahanist extremists.” The
petitioners claim not all Kahanists are members of Kahane Chai
and therefore argue the alleged threat cannot be linked to
10
Kahane Chai. The record provides some support for the
petitioners’ point about membership, but we do not invalidate a
designation simply because it is logically possible that the
Secretary’s conclusion might be wrong. Rather, our task is to
determine whether there is in the record substantial support for
the Secretary’s conclusion. And there is: The Shin Bet Director
clearly identified a threat from “Kahanist extremists” and the
Secretary could reasonably infer that a Kahanist extremist is
likely a member of Kahane Chai.
Upon the basis of the foregoing analysis, we conclude the
Secretary’s redesignation of Kahane Chai as a FTO has
substantial support in the record. Therefore, we consider neither
the Department’s other evidence in support of this redesignation
nor Kahane Chai’s objections thereto.
2. Designation of Kach and Kahane.org
When a FTO is known by another name, the organization
may be designated a FTO under that name as well. See Nat’l
Council of Resistance of Iran v. Dep't of State, 251 F.3d 192,
200 (D.C. Cir. 2001) (NCRI I) (“If the Secretary has the power
to work those dire consequences [associated with designation]
on an entity calling itself ‘Organization A,’ the Secretary must
be able to work the same consequences on the same entity while
it calls itself ‘Organization B’”). The petitioners contend the
Secretary’s redesignation of Kach as an alias of Kahane Chai
lacks substantial support in the record. In response, the
Government points both to a report by the Center for Defense
Information stating that the groups have “an overlapping
membership of several dozen core members,” and to Kahane
Chai leader Michael Guzofsky’s public statement, quoted in the
New York Times, that “if we can’t be KACH or Kahane Chai we
will be simply Kahane.” In addition, the declaration of Kenneth
Piernick, then the Acting Chief of International Terrorism
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Operations Section II, Counterterrorism Division, Federal
Bureau of Investigation, states that “the principal US members
of Kahane Chai/KACH have consistently” changed the names
of their organization in an attempt to evade legal responsibility
for their actions.
This evidence provides substantial support for the
Secretary’s redesignation of Kach as an alias of Kahane Chai.
The organizations protest that they are distinct because, as Mr.
Piernick himself attests, Kahane Chai was formed at the instance
of Guzofsky and others “who believed that KACH was not
taking a strong enough stand against the Arabs.” That was in
1990, however. As the Department correctly pointed out in the
analysis it prepared for the Secretary of the materials submitted
by counsel for the petitioners, “separate groups with overlapping
membership and similar goals may effectively merge and
become one organization” over time. Tellingly, the petitioners
did not present any evidence to suggest the two organizations,
although apparently different in 1990, were still separate and
distinct in 2003 or 2004.
The petitioners also claim the Secretary’s designation of
Kahane.org as a FTO lacks substantial support. Under the
AEDPA, if a FTO “so dominates and controls” an entity that
“the latter can no longer be considered meaningfully
independent from the former,” Nat’l Council of Resistance of
Iran v. Dep’t of State, 373 F.3d 152, 158 (D.C. Cir. 2004) (NCRI
II), then the controlled entity may be deemed a FTO.* A weaker
principal-agent relationship may be sufficient as well. See id.* In NCRI II we referred to this test as the requirement for designation
as an alias of a FTO. 373 F.3d at 158. Because there is a difference
between an alias of a FTO, that is, a different name for the same
organization, and an entity that is not meaningfully independent of a
FTO, for clarity we describe the latter as a “controlled entity.”
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The record contains an analysis of Kahane.org by the FBIS
concluding “there is little difference between the agendas and
the websites” of Kach and Kahane Chai on the one hand and
those of Kahane.org on the other. This conclusion was based
upon an analysis of the website’s “content, design, and
hyperlinks.” The report also identifies Kahane.org’s “billing
contact” as Michael Guzovsky — a leader, as we have seen, of
Kahane Chai, and one who believed a change of name was just
the thing to evade responsibility.
Kahane.org argues the analysis by the FBIS does not
provide substantial support for its designation as a controlled
entity of Kahane Chai because “many organizations that have
similar ideologies and interests have common links and
sometimes have similar layouts in their web pages.” Again this
argument rests upon the mistaken premise that substantial
support means conclusive proof. On the contrary, the Secretary
is not obliged to negate every exculpatory possibility raised by
a candidate for designation as a FTO. He may, that is, adduce
substantial support for a conclusion that, if all the facts were
known, might be erroneous.
In this case, the identification of Guzofsky, the chameleon-
like leader of Kahane Chai, as the billing contact for
Kahane.org, in combination with the similarity of the website’s
agenda to that of Kahane Chai, provides substantial support for
the conclusion that Kahane.org is not “meaningfully
independent” of Kahane Chai. We therefore hold the Secretary
had sufficient information before him to conclude that Kach is
an alias and Kahane.org is a controlled entity of Kahane Chai.
B. Due Process
An organization with a sufficient connection to the United
States has the right to be heard “at a meaningful time and in a
13
meaningful manner,” NCRI I, 251 F.3d at 208 (quoting Mathews
v. Eldridge, 424 U.S. 319, 333 (1976)), before being deprived of
a protected interest in liberty or property. Consequently, unless
it makes a showing of particularized need not to do so, id. at
208, the Government must notify such an organization of its
impending designation as a FTO and of the unclassified items
upon which the Government proposes to base that designation.
Id. at 208-09. Furthermore, the organization must be given an
opportunity to present in written form such evidence as it can to
rebut the evidence in the record or otherwise to fend off its
impending designation. Id. at 209.
The present petitioners were not given access to the
administrative record before they were designated or
redesignated FTOs in 2003. The Government defends this
omission on the grounds that the Abady letter did not indicate it
was written on behalf of a representative of Kahane Chai or an
alias thereof and the Klein letter was received too late. The
petitioners respond that, although Abady did not expressly say
he was acting on behalf of a representative of Kahane Chai, he
did say he wrote as counsel for a named individual who, as State
must have known, was one of the addressees of the notice the
Department sent to persons it thought “might represent” Kahane
Chai, and in the circumstances that was sufficient. Moreover,
they point out that the notice did not indicate Kahane.org was
under consideration for designation as a FTO.
We do not resolve the petitioners’ claims of procedural
error because the alleged errors were, in the particular
circumstances of this case, clearly rendered harmless. In
response to the petitioners’ procedural objections, the
Government offered to do and in 2004 did a de novo
determination of their status. This time the petitioners were
provided, and took full advantage of, the opportunity to inspect
and to supplement the record upon which the review would be
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based.* The result was the same as in 2003 — all three
petitioners were designated or redesignated FTOs — and the
petitioners have not challenged the 2004 review. It follows
apodictically that providing the petitioners with the
administrative record prior to the 2003 designation would have
had no effect upon the outcome of which they now complain.
The petitioners nonetheless claim the procedures used in the
2003 review harmed them because the Department’s subsequent
agreement to do a de novo review caused a delay in filing the
administrative record, and thereby delayed their opportunity for
judicial review. Even if true, however, the point is irrelevant.
An error is harmless if it was not material to the outcome of the
proceeding. PDK Labs., Inc. v. U.S. Drug Enforcement Admin.,
362 F.3d 786, 799 (D.C. Cir. 2004). The outcome of the 2004
review, which was unaffected by any allegedly defective
procedure, shows the outcome of the 2003 review would not
have been different if the Government had provided the
petitioners with the record and an opportunity to present
evidence in 2003.**
* The 2004 record appears to differ from the 2003 record only by the
addition of the petitioners’ responses and deletion of the materials,
previously incorporated by reference, from the 1997, 1999, and 2001
designation and redesignation proceedings against Kahane Chai.
** The petitioners’ due process objection also suggests a question of
mootness and therefore of our jurisdiction. Although neither party has
raised the issue, the court is obliged nonetheless to determine that it
has jurisdiction. Ass’n of Admin. Law Judges v. FLRA, 397 F.3d 957,
961 n.* (D.C. Cir. 2005). As the Supreme Court explained in
Calderon v. Moore, 518 U.S. 149 (1996), “[A]n appeal should ... be
dismissed as moot when, by virtue of an intervening event, a court of
appeals cannot grant ‘any effectual relief whatever’ in favor of the
appellant.” Id. at 150 (quoting Mills v. Green, 159 U.S. 651, 653
(1895)). In the present case the question is whether the 2004
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C. Free Speech
The petitioners argue that designating Kahane.org a FTO
violates the First Amendment because the website is a “medium
of free speech”; it “expresses a viewpoint[, b]ut it does not
advocate terror.” As the Government points out, however, and
as we have held, the AEDPA does not purport to restrain speech;
the statute “is not aimed at interfering with the expressive
component of [an organization’s] conduct.” PMOI II, 327 F.3d
at 1244 (quoting Humanitarian Law Project v. Reno, 205 F.3d
1130, 1135 (9th Cir. 2000)). Instead, the focus is upon the
nonexpressive component of the organization’s conduct, see id.,and the Government clearly may restrain such conduct when it
facilitates terrorist activity. See Humanitarian Law, 205 F.3d at
1134-35 (“While the First Amendment protects the expressive
component of seeking and donating funds, expressive conduct
receives significantly less protection than pure speech”).
Kahane.org has been designated a controlled entity of
Kahane Chai and we have upheld that designation. A restraint
upon the conduct of Kahane.org is therefore tantamount to a
restraint upon the conduct of Kahane Chai itself. See NCRI I,
251 F.3d at 200. And it is established that the restraints imposed
upon a FTO by the AEDPA — namely the organization’s loss
of access to funds held by financial institutions subject to United
States law, the inability of alien representatives of the FTO to
receive visas or enter the United States, and the prohibition upon
designation is an intervening event that forecloses relief from the 2003
designation. We think not. The possibility of prosecution pursuant to
18 U.S.C. § 2339B(a)(1) of any individual who knowingly gave
material support to Kahane Chai or any of its designated aliases during
the time between the 2003 and 2004 reviews is a collateral
consequence that creates an exception to the mootness doctrine.
PMOI II, 327 F.3d at 1244 n.2.
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knowingly donating to the FTO — do not violate the FTO’s first
amendment right to speak, see PMOI II, 327 F.3d at 1244-45;
see also Humanitarian Law, 205 F.3d at 1135-36, a point not
even Kahane Chai challenges. It follows that the AEDPA’s
restraints upon Kahane.org do not violate its first amendment
right to speak.
D. Religious Discrimination
Kahane.org maintains the State Department discriminated
against it upon the basis of religion because the Department in
2003, the first year in which it designated any websites as FTOs,
“designat[ed] only Jewish websites, all alleged aliases of
Kahane Chai, when other FTOs have websites, and sometimes
use those sites for despicable purposes.” This claim implicitly
assumes websites designated as FTOs are the appropriate
universe within which to determine whether there has been
discrimination against a particular religion. The petitioners offer
no defense of that assumption, we see none, and common sense
suggests the appropriate universe for evaluation of a
discrimination claim is the complete list of designated FTOs,
which, as the petitioners acknowledge, includes many non-
Jewish organizations. Consequently, we find no evidence of
religious discrimination at work in the designation of
Kahane.org.
III. Conclusion
For the foregoing reasons, we hold the Secretary’s 2003
redesignations of Kahane Chai and Kach, and his designation of
Kahane.org, were based upon substantial support in the record
and did not violate the petitioners’ constitutional rights.
Accordingly, the petition for review is
Denied.