WASHINGTON, March 22 (UPI) -- Fact and law have been moving in the direction of removal of an Iranian dissident group -- the Mujahedin-e-Khalq also known as the People's Mujahedin of Iran -- from the U.S. Department of State Foreign Terrorist Organizations list. But as fact and law run against retaining the terrorist designation, opponents of the PMOI dance with unnamed diplomats to thwart delisting.
If the facts were on the side of the opponents, they could argue the facts; if laws were on their side, they might argue the laws. But because neither fact nor law is on the side of adversaries of delisting, they dance in circles from argument to argument in search of anything that will prevent removal of the terrorist designation.
Short on both fact and law, antagonists of the PMOI cite unnamed diplomats who hold that so long as the structure of the PMOI remains in place, it legally remains a terrorist organization. In conducting interviews in Iraq for a book, "President Obama and Iraq," I witnessed a small group of unarmed PMOI women happily walking around their residence in Camp Ashraf, Iraq, as if in group formation. I subsequently learned the State Department used such mini-parades as evidence the PMOI retained a paramilitary capability.
Likewise, when 35 members of both houses of the British Parliament challenged the then proscription of the PMOI in the United Kingdom during 2006, the Treasury Solicitor asserted during oral hearing that so long as the PMOI and Ashraf remained viable, this "fact" in and of itself would amount to having the capability and intent to resort to terrorism in the future and that potential therefore justified a decision by the U.K. Home Secretary to maintain the PMOI on the terrorist list. But the lawyer representing the parliamentarians said to the three-judge panel, and the judges concurred, that there was no statutory requirement for an organization to disband itself to be delisted or de-proscribed.
Ultimately, both the Proscribed Organizations Appeal Commission and the English Court of Appeal rejected the argument put forth by the British government and ruled that continued proscription of the PMOI in the United Kingdom was "Perverse." (As a specialist on Iranian dissidents, I submitted, upon request, expert testimony to this judiciary.)
About a year ago, a State Department official told one of my colleagues that so long as the PMOI retained a tight "semi-military structure" in Camp Ashraf, the PMOI retains capability to engage in terrorist activity. But PMOI members under siege in Iraq are so vulnerable that otherwise healthy young men or beginning to have heart attacks as they are relocated within Iraq.
This vulnerability is evident in the sudden death in March of one of the former residents of Ashraf who was among a third group to be transferred to Camp Liberty. Departing from Ashraf, residents were searched under trying conditions for hours by Iraqi forces, and such searches were repeated upon arrival in Camp Liberty. Soon after entering the new facility, a young man had a cardiac arrest due to intense fatigue and hence died, according to the attending Iraqi doctor at Camp Liberty. Such vulnerability is hardly evidence of terrorist capability.
In the Department of State Country Reports on Terrorism 2007, 2008, 2009 and 2010, a CRT 2006 accusation that the PMOI has "capacity and will" to commit terrorist activities or engage in terrorism does not recur and there are no terrorist activities or terrorism cited during the legally-relevant period of two years prior to the last redesignation decision of January 2009. In fact, no military actions are listed by the State Department since 2001.
A search of U.S. government and private electronic and media sources reveals an absence of evidence to support the inference that the PMOI engages in terrorist activities or terrorism or has the capability and intent to do so. The databases are: the U.S. Worldwide Incident Tracking System; U.S. Department of Homeland Security-sponsored Global Terrorism Database; and RAND Database of Worldwide Terrorism Incidents. In these major databases, there are no confirmed associations of the PMOI with any military action after 2001.
For the PMOI to be redesignated absent any terrorist activity or terrorism, the State Department has to show the group has both capability and intent to engage in terrorist activity or terrorism and that it either threatens U.S. national security or the security of American citizens. But how can a group that is confined, monitored and protected by U.S. forces in Iraq for over a half a decade and now under siege and searched regularly and incessantly by the Iraqi military have a capability to conduct terrorist activities or commit terrorism? An inference from tight structure to terrorist capability and intent does not accord with the law.
The Intelligence Reform and Terrorism Prevention Act of 2004 states that if an organization is engaged in terrorism or retains the capability and intent to do so, national security considerations may warrant removal from the FTO list. The law, however, does not provide for the reverse -- maintaining a designation for non-terrorist reasons. Instead, the law requires a group can be retained on the list only if it "engages in terrorist activity." When in 1999, the State Department dropped three groups from the FTO list, officials appeared to acknowledge that to remain designated, an organization had to conduct terrorist activities or terrorism during the preceding two years.
On Feb. 27, the PMOI asked for "expedited consideration" on its pending request for U.S. Secretary of State Hillary Clinton to revoke the designation. Despite the opposition of the State Department, the court granted the PMOI motion and ordered the department to respond by March 26. The case is now before the same panel that found the State Department in violation of the due process rights of the PMOI.
The gold standard for receiving expedited consideration is "irreparable injury." The court, in effect, held the PMOI faces such injury, which may suggest that the judiciary accepts the PMOI argument that denial of its due process rights has a negative impact on the safety of its followers as they relocate within Iraq en route to resettlement in third countries.
At a Feb. 29 congressional hearing, a bipartisan group of members expressed concern about the State Department's terrorist classification of the PMOI -- and about a number of its members currently under siege in Iraq. In response, Clinton announced that Washington would help ensure their security if they relocated to Camp Liberty, Iraq.
Clinton leveraged the PMOI desire to be removed from the list of terrorist organizations, stating that PMOI cooperation in a relocation plan backed by the United States, "will be a key factor in any decision" to delist the PMOI. In doing so, Clinton implicitly acknowledged the following: In addition to lack of evidence the PMOI engages in terrorist activities or terrorism, removal from the terrorist list because of cooperation with the United States is in the American national interest. Removal would resolve a thorny issue of how to relocate PMOI followers safely and temporarily within Iraq and resettle them permanently outside Iraq.
When the court or Clinton removes the terrorist tag from the PMOI, its opponents will be free to resume their whirling dervish dance with unnamed diplomats. But to what avail? Because the point of the dance was to keep the People's Mujahedin of Iran on the terrorist list, opponents of delisting will just have to dance in vain.
(Raymond Tanter is former member of the White House National Security Council staff and professor emeritus at The University of Michigan. His latest book is "Terror Tagging of an Iranian Dissident Organization.")
(United Press International's "Outside View" commentaries are written by outside contributors who specialize in a variety of important issues. The views expressed do not necessarily reflect those of United Press International. In the interests of creating an open forum, original submissions are invited.)