Full opinion text
OPINION AND ORDER KING, District Judge: Plaintiffs A1 Haramain Islamic Foundation, Inc. (“AHIF-Oregon” ) and Multicultural Association of Southern Oregon (“MCASO”) challenge AHIF-Oregon’s designation as a terrorist organization, and the associated freezing of its assets, by bringing suit against the United States Department of the Treasury, the Office of Foreign Assets Control (“OFAC”), the United States Department of Justice, and individuals associated with those agencies. Before the court are Defendants’ Motion to Dismiss and for Summary Judgment (# 36) and Plaintiffs’ Motion for Summary Judgment (# 60). BACKGROUND 1. Statutory and Regulatory Framework Plaintiffs’ claims arise out of the President’s actions under the International Emergency Economic Powers Act (“IEE-PA”). Pursuant to the IEEPA, the President may declare a national emergency to “deal with any unusual or extraordinary threat, which has its source in whole or substantial part outside the United States[J” 50 U.S.C. § 1701(a). Such threat is described as a threat to “the national security, foreign policy, or economy of the United States.” Id. After dedaring a national emergency, the President may: investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation. importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States[J 50 U.S.C. § 1702(a)(1)(B). He may do so without providing notice or an opportunity to be heard. When the President exercises this authority, he must immediately provide a report to Congress identifying the reasons for his declaration, including why the circumstances “constitute an unusual and extraordinary threat[.]” 50 U.S.C. § 1703. In any designation subject to judicial review, the government may submit to the court ex parte and in camera any classified information on which it relied. 50 U.S.C. § 1702(c). President Bush declared a national emergency on September 23, 2001, stating that the “grave acts of terrorism” and the “continuing and immediate threat of future attacks” on the United States “constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States.” Exec. Order No. 13,224, 66 Fed.Reg. 49,079 (Sept. 23, 2001) (“E.O.13,224”). By this executive order, he authorized the Secretary of the Treasury to block contributions of funds, goods or services “to or for the benefit of’ 27 individuals and entities he listed in an annex to the executive order. Id. at § 1(a). Pursuant to IEEPA’s requirement that he provide a report to Congress, on September 24.2001, President Bush explained in a Message to Congress: I have identified in an Annex to this order eleven terrorist organizations, twelve individual terrorist leaders, three charitable or humanitarian organizations that operate as fronts for terrorist financing and support, and one business entity that acts as a front for terrorist financing and support. I have determined that each of these organizations and individuals have committed, supported, or threatened acts of terrorism that imperil the security of U.S. nationals or the national security, foreign policy, or economy of the United States. President Declares National Emergency, Sept. 24, 2001, available at http://www. whitehouse.gov/news/releases/2001/09/ 20010924.html. In his executive order, the President also delegated authority to the Secretary of Treasury to designate other foreign groups or individuals who have committed or pose a risk of committing acts of terrorism, or who are “owned or controlled by, or ... act for or on behalf of those” entities designated by the President or those subsequently designated by the Secretary of Treasury. E.0.13,224 at § 1(b) and (c). Finally, the President delegated authority to the Secretary of Treasury to designate entities who “assist in, sponsor, or provide financial, material, or technological support for, or financial or other services to or in support of, such acts of terrorism or those persons” designated by the President or by the Secretary of Treasury, or for being “otherwise associated” with a designated entity. Id. at § l(d)(i) and (ii). The Secretary of Treasury may utilize his designation authority only after consulting with the Secretary of State and Attorney General. The entities designated by the President or by the Secretary of Treasury arc referred to as specially designated global terrorists (“SDGT”). The President authorized the Secretary of the Treasury to issue regulations to implement the executive order and to re-delegate those functions if necessary. Pursuant to regulations issued by OF AC, a designated entity may seek a license to engage in any transaction involving blocked property. 31 C.F.R. § 501.801-.802. Such an entity may also seek “administrative reconsideration” of a designation. 31 C.F.R. § 501.807. In 2002, President Bush amended E.O. 13,224 and added the Taliban and Mohammed Omar to his initial list of twenty-seven SDGTs. Exec. Order No. 13,268, 67 Fed.Reg. 44,751 (July 2, 2002). The IEEPA and regulations implementing the executive order specify criminal and civil penalties for violations of licenses, rulings, regulations, or orders. 50 U.S.C. § 1705; 31 C.F.R. § 594.701. II. Al-Haramain Islamic Foundation (“AHIF”) The unclassified administrative record reflects the following: AHIF, the headquarters of AHIF-Oregon, is a Saudi Arabian-based charity that at one point purportedly operated in fifty countries, with an annual budget of between $30 and $80 million. The Treasury Department describes the organization as: one of the principal Islamic NGOs [nongovernmental organization] providing support for the al Qaida network and promoting militant Islamic doctrine worldwide.... Terrorist organizations designated by the U.S. including Jemmah Islammiya, Al-Ittihad Al-Islamiya, Egyptian Islamic Jihad, HAMAS, and Lashkar E-Taibah received funding from [AHIF] and used [AHIF] as a front for fundraising and operational activities. AR0346. AHIF was involved in planning attacks against the U.S. Embassies in Kenya and Tanzania in 1998. In addition, AHIF supplied financial assistance to Jemmah Islammiya, which bombed a nightclub in Bali in 2002. A senior AHIF official was involved in directing a Bangladeshi national to conduct surveillance on U.S. consulates in India for potential terrorist attacks. When the Bangladeshi national was arrested in 1999, he was carrying explosives and detonators to attack U.S. diplomatic missions in India. An AHIF branch in Pakistan supported the Taliban before it was removed from power. The government believes Osama bin Laden may have provided the financial support necessary to found an AHIF branch in Albania. AHIF’s Ethiopian branch financed an al Qaida-associated terrorist organization, Al-Ittihad Al-Islamiya. The United States cooperated with Saudi Arabia to stop the activities of AHIF, with each government acting jointly as well as unilaterally. Between 2002 and 2004, pursuant to its authority under E.O. 13,224, the Secretary of Treasury designated AHIF offices in Afghanistan, Albania, Bangladesh, Bosnia-Herzegovina, the Comoros Islands, Ethiopia, Indonesia, Kenya, the Netherlands. Pakistan, Somalia, and Tanzania. Even though these offices were designated, and assets frozen, the United States and Saudi Arabia obtained reports that the offices in Bosnia and Somalia had reopened or were still active in 2002. Saudi Arabia dissolved “the Riyadh-based Al-Haramain Islamic Foundation” and directed its assets to the “Saudi National Commission for Relief and Charity Work Abroad” in February of 2004. AR0327; AR0948. Until June 19, 2008, AHIF’s headquarters in Saudi Arabia had not been designated. Then-Secretary of the Treasury, Paul O’Neill, reported that AHIF was not designated because it “is dedicated to promoting Islamic teachings.” AR0103. AHIF does, however, have the distinction of being named in the 9-11 Commission’s Staff Report on Terrorist Financing, published in 2004, as an organization that supports al Qaeda and related terrorist groups. AR0935. On June 19, 2008, the day before plaintiffs’ reply brief was due, the government filed a notice with the court that OF AC had designated “the world-wide organization of the Al Haramain Islamic Foundation” for the reason that it has “acted for or on behalf of, has assisted in, sponsored, or provided financial, material or technological support for, or other services to or in support of acts of terrorism and al Qaida and other SDGTs” and is owned or controlled by Aqeel Al-Aqil. Defs.’ Not. of Filing at 2. III. Aqeel Al-Aqil The unclassified administrative record reflects the following: Aqeel Al-Aqil, a Saudi national, was the Director of AHIF until he was purportedly removed in January of 2004. AR0948. He was also one of the founders, the President, and one of four members on the board of directors of AHIF-Oregon, until he resigned in March of 2003. Al-Aqil maintained “tight control over the affiliated offices;” Al-Aqil himself described the directors of the other offices as “employees who follow the directions of the main office with regards to hiring workers ... and making any decisions on cooperation with any party.” AR0595. A leader of AHIF resigned from AHIF due to Al-Aqil’s “autocratic and centralist governance.” AR0258. In a press report, AlAqil’s leadership is described as “absolute centralization.” AR0254; AR0259-0260. When Pete Seda, another member of AHIF-Oregon’s board of directors and the head of that office, applied for a license from OF AC in 2001 to help Afghan refugees in Iran, Seda reported that Al-Aqil had agreed to the proposal. Although Al-Aqil was removed from his position with AHIF, Al-Aqil “retained effective control over the activities of all branches, and according to some reports, even following his purported departure from the parent organization.” AR2198, n. 2. Al-Aqil reported to the Saudi Gazette that he resigned as AHIF’s Director willingly, rather than that he was removed, but “I will stay on as an active member and as an advisor.” AR1902. According to the Gazette, Al Aqil had been head of AHIF for 13 of the organization’s 16-year history, and was one of its founders. Al-Aqil was designated as an SDGT in June 2004. He challenged his designation in the U.S. District Court for the District of Columbia, alleging a violation of his constitutional rights. The court dismissed his Complaint. Al-Aqeel v. Paulson, 568 F.Supp.2d 64 (D.D.C.2008). Al-Aqil did not challenge the designation on the merits. IV. Solimán H.S. Al-Buthe The unclassified administrative record reflects the following: Solimán H.S. Al-Buthe, a Saudi national, was an AHIF official, primarily responsible for AHIF’s internet and charitable works in the United States. He resigned from AHIF in September 2002. Al-Buthe was one of the founders of AHIF-Oregon. He is AHIF-Oregon’s treasurer, and a member of the board of directors. He signed contracts for AHIFOregon and was one of two individuals with access to AHIF-Oregon’s bank account. He also assisted in the purchase of a mosque in Springfield, Missouri through AHIF-Oregon. He raised funds to support AHIF-Oregon from Saudi Arabian sources, and “under the immediate and close supervision of Mr. Al-Aqil” disbursed operational funds for AHIF-Oregon. AR0600. The government alleges that Al-Buthe worked with an individual, Sarni Omar AlHussayen, a Saudi Arabian student, who it prosecuted for material support of terrorism. Al-Buthe hired Al-Hussayen to work on the website for AHIF, www. islamtoday.net. Jurors in Idaho found AlHussayen not guilty of the terrorism-related criminal charges, and he has never been designated a terrorist. AHIF’s website in 1999 and 2000 contained articles supportive of Chechen mujahideen. One article was entitled, “The Latest News About Jihaad in Chechnya.” AR0764. The website also contained a prayer for the “Mujahideen brothers in Chechnya.” Id. Al-Buthe was designated, along with AHIF-Oregon, in September of 2004. Al-Buthe was redesignated, along with AHIF-Oregon, in June of 2008 because “by serving, as a senior [AHIF] official, AL-BUTHE has acted for or on behalf of, has assisted in, sponsored, or provided financial, material or technological support for, or financial or other services to or in support of A1 Qaida and other SDGTs.” AR1899. V. AHIF-Oregon The unclassified administrative record reflects the following: AHIF-Oregon registered the name “A1 Haramain Foundation” with the Oregon Secretary of State on October 22, 1997, and incorporated as a nonprofit public benefit corporation under Oregon law on February 11, 1999. Its Articles of Incorporation specify that the foundation “stands against terrorism, injustice, or subversive activities in any form, and shall oppose any statement or acts of terrorism. [AHIF] believes such conduct is contrary to Islamic principles.” AR0531-0535; AR08090817. AHIF-Oregon’s office is in Ashland, Oregon and, at the time of its incorporation, its board of directors were Al-Aqil, Mansuor Al-Kadi (Al-Aqil’s deputy), Al-Buthe, and Perouz Sedaghaty (a/k/a Pete Seda). AHIF-Oregon distributed Islamic books and pamphlets, and owned and operated prayer houses in Ashland and Springfield, Missouri. AHIF donated funds to support AHIFOregon. In addition, AHIF-Oregon admits that it “transferred approximately $180.000 to [AHIF] for Chechen humanitarian relief activities” in 2000. Compl. ¶¶ 35, 63. AHIF-Oregon explains that a donor gave it $150,000 to support charitable efforts in Chechnya, and several other donors gave smaller amounts. The donor of the $150,000 was Dr. Mahmoud Talaat El-Fiki, an Egyptian. Dr. El-Fiki sent an e-mail to “haramain” on February 20, 2000, as follows: Dear Brothers Al-Salamu Alaikom. May Allah bless your efforts supporting our muslim brothers everywhere. In regard to our previous correspondence, I have the pleasure of informing you that I have already asked my bank in London to make a transaction to your USA account, using the details you provided in an earlier e-mail, as Zakat in order to participate in your nobel [sic] support to our muslim brothers in Chychnia [sic], and here are the transaction details. Donation made by Dr. Mahmoud Talaat El-Fiki From his account in Nation Bank of Kuwait (International) Pic. London To your account in Transferred amount Bank of America US$150,000 (A hundred & Fifty Thousand U.S. Dollars) Value 24/2/2000 What I am asking you to do, is to kindly: 1) Confirm that this amount would be used as ZAKAT 2) Inform me by e-mail as soon as you get the transaction 3) Send me a letter (original document from your establishment) confirming that the US$150,000 donation has been received as Zakat from Dr. Mahmoud Talaat El-Fiki. AR1059. Al-Buthe learned about the donation, and made arrangements to meet Seda in Ashland to pick the donation up. He explained to ()PAC later that he was traveling to the United States anyway to establish an Islamic website, www.islamtoday. net. He and Seda went to the Bank of America branch and obtained $130,000 in travelers’ checks, rather than a cashier’s check, because they transport easily and do not take time to clear. The bank did not have enough travelers’ checks for the entire amount, so the following day, AlButhe obtained a cashier’s check for $21,000. He provided the money to AHIF in Riyadh. AHIF-Oregon asserts that Al-Buthe never met Dr. El-Fiki, and did not know why he had sent the money to the United States. Al-Buthe hypothesizes that Dr. El-Fiki was responding to “website instructions or advertisements that had been published in Islamic magazines directing contributions to the United States.” AR0600. Al-Buthe claims he never went to Chechnya, “has no first hand knowledge of [AHIF] activities there,” has had “no control over activities there,” and that “any funding of activities in Chechnya was by officials in Saudi Arabia.” AR0601. AHIF-Oregon contends funds it gave AHIF were officially approved for use in a Chechnya project by Saudi Arabia and Russia, the funds were used exclusively for humanitarian purposes, and had nothing to do with terrorist or violent activities. Specifically, AHIF-Oregon asserts that the project was formally approved in 1999 by a Memorandum of Understanding between the Saudi Joint Relief Committee for Kosovo and Chechnya (“SJRC”), a Saudi Arabian governmental entity, and the Russian government in Chechnya. The Memorandum permitted the SJRC to provide humanitarian aid to refugees in the region with funds provided by AHIF-Oregon and other Muslim charities. AHIFOregon provided a copy of the documents formalizing the SJRC to OFAC in its May 14, 2004, response to OFAC’s notice of possible designation. The documents supporting the creation of the SJRC arc as follows: (1) a memorandum from Crown Prince Abdullah bin Abdulaziz Al-Saud (now King Abdullah), dated November 9, 1999, which reported on favorable discussions with the Russian Ambassador and ordered the SJRC to provide humanitarian aid to the Chechen refugees; (2) a memorandum from the SJRC, through Prince Turki bin Fand bin Jilawi Al-Saud, dated November 30, 1999, which requested that AHIF collect donations for Kosovo and Chechnya, and set forth guidelines for raising and accounting for the donations; (3) a Memorandum of Understanding, between the Russian Ministry of Civil Defense Affairs and the SJRC, dated December 8, 1999, which allowed the SJRC to provide humanitarian aid in Northern Chechnya with the cooperation of the Russian Ministry; (4) a document, dated January 1, 2000, recording the meeting of the SJRC Chechnya Committee and setting forth its approved action plan for relief in Chechnya; and (5) receipts issued by AHIF to AHIF-Oregon for funds transferred by AHIF-Oregon to AHIF for these relief efforts. AHIF-Oregon also submitted to OFAC a declaration from Vladimir Matusevitch, a Russian emigre and former head of the Russian Broadcasting Service for Radio Liberty (a U.S. funded entity). Dr. Matusevitch discussed a 2000 report by a news agency describing Russia’s approval of the SJRC’s work in Chechnya, and acknowledging the help it provided Cheehens. Other than the Saudi Arabian branch, AHIF-Oregon asserts it never had any ties to any of the other designated entities. In April 1999, however, Seda sent $2,000 to AHIF-Albania for freelance mujahidin in Kosovo. AHIF-Albania was not yet designated at the time. Al-Aqil resigned from AHIF-Oregon on March 27, 2003, and Al-Kadi resigned on February 22, 2003. On February 18, 2004, the FBI, IRS, ICE and Oregon police executed a search warrant on AHIF-Oregon’s Ashland office. Agents found photographs of the Islamic Army of the Caucasus (“LAC”) Commander-in-Chief Shamil Basayev (who was designated as an SDGT on August 8, 2003), along with Ibn U1 Khattab of the I AC loyal foreign mujahideen brigade, and Khattab’s successor after Khattab’s death in March 2002, Abu Al-Walid Al-Ghamidi. Other items seized at the office include passports from deceased Russian soldiers, a map depicting mujahideen military engagements, videos showing mujahideen in Chechnya committing violent acts against Russian soldiers, and photographs of deceased mujahideen and Russian soldiers. OFAC froze AHIF-Oregon’s assets and property on February 19, 2004, pending investigation. On April 23, 2004, OFAC provided unclassified information that it said it was relying on in considering designating AHIF-Oregon as an SDGT, in addition to classified documents it did not disclose. AHIF-Oregon responded to OFAC’s information, but alleges it was forced to speculate as to the reasons for the government’s concern. It thought two of its activities might be at issue: distribution of Korans to prisoners and others, and participation in a fundraising project for Chechen refugees. OFAC mailed a supplemental record on July 23, 2004. AHIFOregon objected to the inclusion of documents related to AHIF because AHIFOregon had no control over it, and the inclusion of documents related to other AHIF branches overseas because AHIF had no relationship with them. AHIFOregon also provided documentation supporting its contention that its humanitarian efforts in Chechnya were supported by the Russian government. OFAC provided yet another supplement to the administrative record on August 20, 2004, and on September 9, 2004, OFAC designated AHIF, as well as AHIF’s director Solimán Al-Buthe, as SDGTs. The designation letter identified the applicable executive order criteria as being sections 1(c) and (d) without giving any further reasoning. AR2031. About three months after plaintiffs’ filed this lawsuit, OFAC informed AHIF-Oregon and Al-Buthe on November 14.2007, that it was considering redesignating them. The government provided several packets of unclassified documents, including translations of Russian and Arabic newspapers from 2000 to 2004, that had not been produced earlier. AHIF-Oregon objected to the proposed redesignation. On February 6, 2008, OFAC redesignated AHIF-Oregon and Al-Buthe. OFAC contends that the decision to redesignate was “based upon, inter alia, OFAC’s desire to incorporate all of AHIF-Oregon’s submissions into the Administrative Record; to update the record with information developed over the intervening period; and to remove certain documents from the record.” Decl. of Adam J. Szubin ¶ 67 (“Szubin Deck”). The Director of OFAC states the agency did not consider or rely upon the documents that had been removed from the record. OFAC informed AHIF-Oregon it was redesignated because it is “owned or controlled” by Al-Buthe and Al-Aqil, or acted on behalf of them. In addition, AHIFOregon was redesignated because, “[a]s a branch of the Saudi charity Al-Haramain Islamic Foundation, [AHIF-Oregon] has acted for or on behalf of, or has assisted in, sponsored, or provided financial, material, or technological support for, or financial or other services to or in support of A1 Qaida and other SDGTs.” AR1899. OFAC submitted a classified record ex parte and in camera to the court. OFAC sought permission from the originating agencies to determine whether declassification of any of the documents was permitted, and OFAC obtained approval for declassification of some of them. Several agencies did not permit submission of some classified documents to the court at all. “These records were not considered or relied upon as a basis for redesignation and are not included in OFAC’s Administrative Record.” Szubin Deck ¶ 69. The government reports that approximately $20,310 of AHIF-Oregon’s funds have been blocked. Plaintiffs state that this figure does not include the proceeds from the sale of AHIF-Oregon’s Ashland property, which totals some $440,000. AHIF-Oregon reports the organization is “effectively closed down” as a result of the blocking order and designation. Pis.’ Statement of Facts ¶ 12. VI. Payment of AHIF’s Counsel AHIF-Oregon’s attorneys have unsuccessfully sought licenses from OFAC to use frozen funds for legal fees. Subsequent to the filing of this lawsuit, OFAC modified its policy. The new policy authorizes licenses to release some blocked funds to pay legal fees and costs in some circumstances. The blocked funds may be used to pay fees and costs incurred “in seeking administrative reconsideration or judicial review of the designation or blocking pending investigation of a U.S. person ..., where alternative funding sources are not available.” Pis.’ Fed.R.Civ.P. Rule 56(f) Deck of Counsel Ex. A. OFAC issued guidance on the new policy. See Pis.’ Notice of OFAC’s Guidance on Legal Fees and Expenses Ex. 1. OFAC denied AHIF-Oregons recently submitted request because AHIF-Oregon’s attorneys “have already been paid from alternative funding sources in excess of the fee caps set forth in the policy.” Defs.’ Notice of OFAC’s Decision. VII. Plaintiffs’ Claims AHIF-Oregon first challenges the designation and redesignation decisions on various grounds. Specifically, it argues that redesignation is not an authorized agency action, that the designation and redesignation were not supported by substantial evidence because OFAC’s administrative record contains no evidence AHIFOregon engaged in or supported terrorist activity, and that the designation and re-designation was improperly based on its associations. AHIF-Oregon also argues OFAC violated its Fifth Amendment right to due process because AHIF-Oregon did not have adequate notice and the government did not explain its decisions and that the designation and redesignation were improperly based on a secret and flawed administrative record. AHIF-Oregon next challenges the government’s authority to designate it, arguing that the IEEPA authorizes the designation of foreign nationals only after the host nation has been designated. AHIF-Oregon also alleges that the seizure of its assets without a warrant violated its Fourth Amendment rights. MCASO argues the designation authority of the President is vague and overbroad in violation of its First and Fifth Amendment rights, and both AHIF-Oregon and MCASO contend the Secretary of Treasury’s designation authority violates their constitutional rights. Finally, AHIF-Oregon challenges OFAC’s policy on attorneys’ fees. LEGAL STANDARDS Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Universal Health Services, Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004). DISCUSSION I. AHIF-Oregon’s Challenge to its Designation and Redesignation AHIF-Oregon argues that OFAC had no authority to “redesignate” it under the applicable regulations. AHIF-Oregon also asserts that the designation and re-designation were not supported by substantial evidence because OFAC’s administrative record contains no evidence AHIFOregon engaged in or supported terrorist activity and that the decision is unconstitutionally based on its associations. In addition, AHIF-Oregon argues the designation and redesignation decisions violated its Fifth Amendment right to due process because it did not have adequate notice and the government did not explain its decisions, and the designation and redesignation were improperly based on a classified administrative record. The government responds that the agency action at issue here is OFAC’s re-designation of AHIF-Oregon, which is an authorized agency action, and that the original designation is no longer OFAC’s final agency action. Additionally, the government contends that the decision is supported by substantial evidence in the record both classified and unclassified, and not based on associations alone, and that AHIF-Oregon received all the process to which it was due. A. Whether “Redesignation” is an Authorized Agency Action AHIF-Oregon argues at the outset that the law does not provide for a redesignation process. Neither E.O. 13,224, the IEEPA, nor OFAC’s regulations describe a redesignation process. The regulations allow for “amendment, modification, or revocation” of an order, which is not what occurred here according to AHIF-Oregon. 31 C.F.R. § 501.803. In a footnote, as a means of comparison, AHIF-Oregon points to the process of designating Foreign Terrorist Organizations under the Antiterrorism Effective Death Penalty Act (“AEDPA”), which before 2004 required every two years what the law called “re-designation.” 8 U.S.C. § 1189(a)(4); Pub.L. 108-458, Section 7119(a) (Dec. 17, 2004). AHIF-Oregon also suggests that the redesignation decision is a post hoc rationalization, and the court is limited to reviewing the challenged decision-the original designation. AHIF-Oregon’s main concern is that the government may have changed its reasons for designating AHIF-Oregon, and AHIF-Oregon would never know whether the designation and redesignation were consistent with each other or whether the government made different decisions in the face of this litigation. The government responds that redesig-nation during litigation was implicitly accepted in Holy Land Found, for Relief and Dev. v. Ashcroft, 219 F.Supp.2d 57, 66 n. 8 (D.D.C.2002), aff'd, 333 F.3d 156 (D.C.Cir.2003), and in Global Relief Found., Inc. v. O’Neill, 315 F.3d 748, 750-51 (7th Cir.2002). The government asserts that the redesignation is the outcome of considering AHIF-Oregon’s request for reconsideration and denying it, considering information gathered subsequent to the initial designation, and removing documents from the administrative record. The government used the same standards and procedures as it used to make the initial designation, but it relied on a revised administrative record. Courts give deference to an agency’s interpretation of the executive orders it is charged with administering. American Fed’n of Gov’t Employees v. Fed. Labor Relations Auth., 204 F.3d 1272, 1274-75 (9th Cir.2000). “To be sustained, the agency’s interpretation need not be the only reasonable interpretation. All that is required is that the interpretation adopted by the agency be reasonable.” Kester v. Campbell, 652 F.2d 13, 15-16 (9th Cir.1981). Here, OFAC has interpreted its designation authority to allow it to “update[] and supersede[] its original designation on the basis of a revised administrative record.” Szubin Decl.1166 n. 5. OFAC has the authority to amend and modify any order at any time, but OFAC has determined that redesignating an entity “provides more process for the benefit of the designated party than they [sic] would receive were OFAC simply to amend the record administratively^]’’ Id. (citing 31 C.F.R. § 501.803). The agency’s interpretation of the executive order as allowing for the alteration of a designation once it has been made is a reasonable one. OFAC has authority under its rules to amend or modify any order, but it has reasonably concluded that a redesignation process benefits the affected entity. In addition, this is not the type of post hoc rationalization of which the courts disapprove. The government issued a new decision to replace an initial decision which is agency action, not a post hoc rationalization of an agency action in subsequent litigation. See Independence Min. Co., Inc. v. Babbitt, 105 F.3d 502, 511 (9th Cir.1997) (post hoc rationalization is where “an agency has provided a particular justification for a determination at the time the determination is made, but provides a different justification for that same determination when it is later reviewed by another body”) (emphasis added). OFAC had authority to redesignate AHIF-Oregon. B. Whether the Redesignation is Arbitrary and Capricious or Based on Mere Association The government redesignated AHIFOregon as an SDGT because it is “owned or controlled” by Al-Aqil and Al-Buthe and because AHIF-Oregon provided financial, material, or other support to SDGTs as a branch office of the larger AHIF organization. Under the APA, the court may overturn an agency action only if the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998), cert. denied, 527 U.S. 1003, 119 S.Ct. 2337, 144 L.Ed.2d 235 (1999). In determining whether an agency decision is arbitrary and capricious, courts “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh, 490 U.S. at 378, 109 S.Ct. 1851. A decision is arbitrary and capricious if the agency “has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” O’Keeffe’s, Inc. v. U.S. Consumer Product Safety Comm., 92 F.3d 940, 942 (9th Cir.1996) (quoting Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). The agency must articulate a rational connection between the facts found and the conclusions made. Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997). Review under this standard is narrow, and the court may not substitute its judgment for the judgment of the agency. O’Keeffe’s, 92 F.3d at 942. Furthermore, the government properly asserts that in the arena of foreign affairs, deference due to the Secretary is “at its zenith.” Defs.’ Mem. in Supp. of Mot. to Dismiss at 14-15. Citing seven cases or so, the government notes that courts have given broad deference to sanctions decisions under the IEE-PA, and its predecessor statute, the Trading with the Enemy Act (“TWEA”). 1. Plaintiffs’ Fed.R.Civ.P. 56(f) Request As a threshold matter, I must rule on plaintiffs’ request for discovery given the government’s submission of a declaration made by Adam Szubin, the Director of the Department of the Treasury’s Office of Foreign Assets Control. AHIF-Oregon challenges the statements made by Szubin as hearsay and based on information not in the administrative record, and seeks discovery if the court relies on his declaration. In addition, AHIF-Oregon seeks discovery about the United Nations’ (“UN”) designation process. Finally, AHIF-Oregon objects to the use of classified material. If the court relies on the classified evidence, AHIFOregon seeks access to the materials, and is willing to obtain security clearances and agree to a protective order. It also seeks an unclassified summary so it has an opportunity to respond in a meaningful way. In a court’s review of an administrative agency’s decision, extra-record materials may be relied upon by the court under a few exceptions: (1) if necessary to determine if the agency considered all relevant factors and explained its decision; (2) if the agency relied on documents not in the record; (3) to explain technical or complex subject matter; or (4) if plaintiff makes a showing of agency bad faith. The Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir.2005). Much of Szubin’s declaration merely presents background information to explain how OFAC designates individuals and organizations, and I will consider that information presented by Szubin. See Clifford v. Pena, 77 F.3d 1414, 1418 (D.C.Cir.1996) (declaration provided “court with background information ..., information underlying the [agency’s] decision and well known to the agency and to the parties.”). I will disregard any statements Szubin makes about the agency’s decision and will rely on the actual decision letter and the administrative record in support of it in evaluating the redesignation since the government relies on none of the exceptions identified by The Lands Council. To avoid any need for AHIF-Oregon to engage in discovery, I will not consider the UN designations of AHIF and related individuals; AHIF-Oregon presents evidence that the UN designations were merely repetitive of OFAC’s designations. AHIF-Oregon’s objections to use of the classified record will be dealt with below. Accordingly, I deny AHIF-Oregon’s request for discovery. 2. History of AHIF-Oregon AHIF-Oregon contends that the government must assess the affected entity’s activities at the time of designation, to determine whether an entity is owned or controlled by an SDGT or providing support to SDGTs, and may not rely on information of past activities. The government argues that AHIF-Oregon’s view of the statute as requiring current information to justify the designation or redesignation is incorrect. The government asserts it can rely on historical information. The government cites Holy Land, which allowed the government to rely on information about the designated entity’s activities with Hamas before Hamas was designated. 219 F.Supp.2d at 74, aff’d, 333 F.3d at 162. The government points out that a contrary interpretation would allow the entity to change officers, directors, and temporarily stop supporting SDGTs in order to avoid designation. The government is correct that OFAC may consider “the genesis” of AHIF-Oregon and “the totality of its history” in its designation decision. Id. at 74. At least with respect to the “owned or controlled” criteria, however, the govern-merit cannot rely solely on historical evidence. Absent other evidence of continuing control, where officers or directors are no longer “in their respective capacities,” designation is not reasonable. Holy Land, 333 F.3d at 162 (officers and directors remained until Holy Land Foundation was designated). 3. Whether AHIF-Oregon was Owned or Controlled by Alr-Aqil AHIF-Oregon does not dispute the reasons for Al-Aqil’s designation, only whether there is any evidence he owned or controlled AHIF-Oregon at the time AHIF-Oregon was redesignated. I agree with AHIF-Oregon. Although Al-Aqil was a founding member of and the President of AHIF-Oregon, he resigned in March of 2003. AHIF-Oregon was not designated until September of 2004 and was not redesignated until February of 2008. There is no evidence Al-Aqil was involved with AHIF-Oregon after his resignation, or at the time AHIF-Oregon was designated. The only evidence of his control over AHIF-Oregon are statements made by Seda in a license application in 2001, and statements made by Al-Aqil and others about Al-Aqil’s management approach; these statements were made before Al-Aqil was removed from his position as Director of AHIF. The government seized AHIF-Oregon’s documents, and it does not point to one demonstrating AlAqil exercised control over AHIF-Oregon alter he resigned from AHIF-Oregon, and after he was removed from his position as Director at AHIF. The government states that “according to some reports, even following [Al-Aqil’s] purported departure from the parent organization,” Al-Aqil “retained effective control over the activities of all branches!.]” AR2I 98, n. 2. The administrative record does not support this statement. Although he commented that he would stay on as an active member and as an advisor, there is no evidence Al-Aqil retained ownership or control over AHIFOregon such that the government could have a rational concern about Al-Aqil’s continuing to engage in illegal conduct. Since the evidence in the administrative record is not sufficient to support OFAC’s conclusion that Al-Aqil exercised control over AHIF-Oregon at the time of redesignation in 2008, or even at the time of designation in 2004, OFAC’s conclusion is not a rational one. 4. Whether AHIF-Oregon was Owned or Controlled by Al-Buthe While OFAC does not present sufficient evidence of Al-Aqil’s ownership or control over AHIF-Oregon at the time of AHIF-Oregon’s designation and redesignation, there is substantial evidence of AlButhe’s ownership or control over AHIFOregon that continued until AHIF-Oregon’s redesignation. Al-Buthe was one of the founders of AHIF-Oregon, is listed as its Treasurer on AHIF-Oregon’s tax return, and he has not resigned from its Board of Directors, nor has AHIF-Oregon removed him. Pri- or to its designation. Al-Buthe signed contracts for AHIF-Oregon, and was one of only two individuals with access to its bank account. He raised funds from Saudi-Arabian sources for AHIF-Oregon and disbursed those funds to AHIF-Oregon. Unlike Al-Aqil, AHIF-Oregon and Al-Buthe never severed ties. See Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 734 (D.C.Cir.2007) CLARA ”) (“genesis and history” may be considered “at least where ties have not been severed.”). AHIF-Oregon argues there is no basis for Al-Buthe’s designation, and it suggests that the government has designated AHIF-Oregon because of its relationship with Al-Buthe, and may have designated Al-Buthe because of his relationship with AHIF-Oregon, without showing that either of them supported terrorism. The government asserts that Al-Buthe was designated for serving as a senior AHIF official. There is sufficient evidence in the administrative record to support OFAC’s conclusion that AHIF supported SDGTs and terrorist activities, some of which is summarized in the Background section above, and that Al-Buthe participated as a senior AHIF official. There is also evidence in the classified record to give the government reasonable concern about Al-Buthe’s activities. AR1894-99. Accordingly, OFAC’s conclusion that AHIF-Oregon should be redesignated based on Al-Buthe’s ownership or control over AHIF-Oregon is rational and is supported by the administrative record. 5. Whether AHIF-Oregon Supported SDGTs as a Branch Office of AHIF Similarly, there is sufficient evidence in the classified and unclassified record demonstrating that AHIF-Oregon supported SDGTs as a branch of AHIF. The record contains substantial evidence to support OFAC’s reasonable belief that AHIF provided financial, material, technological and other support to SDGTs and to support OFAC’s decision to block the assets of branch offices deemed a threat to the interests of the United States. AHIFOregon has not attempted to separate itself from the larger organization, and has not sought delisting under OFAC’s regulations. It was founded with money from the larger organization, identified itself with the same name as the larger organization, and its board significantly overlapped with the leadership of the larger organization. Indeed, when seeking a license to provide money to refugees in 2001, Seda described AHIF-Oregon as the “Oregon chapter” of the Saudi headquarters, and identified the money as coming from “our organization,” referring to AlAqil and himself, making it clear that AHIF-Oregon is part and parcel of AHIF. Similarly, in a 2002 press conference after AHIF’s Bosnia and Somalia offices had been designated. AI-Aqil noted that AHIF’s offices in the United States “continue to operate until this moment and have not been closed. We have two offices in Oregon and Missouri.” AR2194. Furthermore, AHIF-Oregon and AHIF had a close financial relationship. On at least one occasion, AHIF-Oregon supported AHIF financially. The combination of circumstances surrounding AlButhe’s personal delivery of over $150,000 to AHIF from AHIF-Oregon’s hank account could reasonably be construed by OFAC as evidence of financial support for terrorist activities. The donator intended the money to be used for “our muslim brothers in Chyehnia,” and Al-Bathe transported the money in travelers’ checks and a cashier’s check rather than wiring the money and avoiding fees, at a time when AHIF’s website carried articles supportive of Chechen mujahideen and a link through which funding could be provided to the mujahideen. Furthermore, as government counsel explained in oral argument, AHIF-Oregon’s financial assistance occurred during a time when AHIF was providing both humanitarian support in Chechnya as well as supporting terrorist activities there. Indeed, photographs of mujahideen leaders were found at AHIFOregon’s office in 2004, well after the donation, along with passports belonging to deceased Russian soldiers, a map noting the location of mujahideen military battles, videos showing violence against Russian soldiers by mujahideen in Chechnya, and photographs of deceased mujahideen and Russian soldiers. Finally, the government points out that money is fungible, which makes it possible that money can be used directly or indirectly to support terrorist activities. In addition, even if the money is used for charitable purposes, the use of that money frees up other money for violent activities. Humanitarian Law Project v. Reno, 205 F.3d 1130, 1136 (9th Cir.2000). partly aff'd en banc, 393 F.3d 902 (9th Cir.2004) (money is fungible and even contributions for peaceful purposes can be used for unlawful purposes); Farrakhan v. Reagan, 669 F.Supp. 506, 512 (D.D.C.1987) (“no alternative that would allow organizations to speak through contributions while still allowing the government to effectuate its legitimate and compelling interests in national security”). The law prohibits giving any financial support “to or in support of’ terrorist acts. E.0.13,224 at § (d)(i). Contrary to AHIF-Oregon’s contention, the government need not show AHIFOregon intended to support terrorism, merely that OFAC held a reasonable belief that AHIF-Oregon is a component of a larger organization that funds terrorism. HLP/AFDPA 205 F.3d at 1134 (the First Amendment does not require “the government to demonstrate a specific intent to aid an organization’s illegal activities before attaching liability to the donation of funds”); IARA 477 F.3d at 737 (“we do not require a showing that IARA-USA intended its funding to support terrorist activities”). It is sufficient that AHIFOregon engaged in affirmative conduct in providing financial support and services to AHIF, which in turn supported SDGTs and terrorist acts. Both the unclassified and classified record support OFAC’s reasonable belief that AHIF-Oregon provided support to SDGTs as a branch of AHIF, warranting redesignation of AHIF-Oregon. The government is entitled to summary judgment on AHIF-Oregon’s Counts I, V and VII of the Supplemental Complaint. C. Whether the Redesignation Violated AHIF-Oregon’s Fifth Amendment Rights or the APA AHIF-Oregon first claims the designation process is arbitrary and capricious because none of the regulations identify any procedural or substantive criteria to guide the process. AHIF-Oregon also alleges a violation of its Fifth Amendment due process right because the government failed to give it adequate notice of the charges, or time to respond, and did not give any reasons for its actions until it issued its final redesignation decision. In addition, the government relied on classified material, hearsay evidence, and created a biased administrative record. 1. Standards for OF AC Designation Aside from vagueness and overbreadth arguments, which are dealt with below and which form the basis of its complaint about lack of substantive criteria, AHIF-Oregon complains that the designation process lacks procedural safeguards. The regulations do not require OF AC to make any statement as to why an entity is designated, do not require the agency to comply with any deadlines for providing notice, and do not identify the burden of proof the agency carries. There is no mandatory duty requiring OFAC to adopt the regulations AHIFOregon demands. As a result, the agency’s failure to do so cannot be deemed “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” under the APA. 5 U.S.C. § 706(2)(A). In the absence of regulations, the requirements of due process apply. See Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 919 (9th Cir.1995). 2. Notice of the Reasons for the Proposed Designation and Redesignation “Due process is flexible and calls for such procedural protections as the particular situation demands.” Armstrong v. Meyers, 964 F.2d 948, 950 (9th Cir.1992) (termination of public employee) (citing Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). “The administrative proceedings are based on civil process and thus the full panoply of safeguards applicable to a review of criminal proceedings are not required.” Whetstone v. Immigration and Naturalization Service, 561 F.2d 1303, 1306 (9th Cir.1977). At a minimum, however, due process requires the “opportunity to be heard ... at a meaningful time and in a meaningful manner.” Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (citations and internal quotations omitted). In addition, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Three factors are considered in determining if particular notice and hearing procedures satisfy due process: (1) the private interest affected by the official action; (2) the risk of erroneous deprivation of the interest and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. 893. As a threshold matter, although I found in favor of the government and treated the redesignation as the final agency action when I evaluated the merits of the agency’s action above, for purposes of the due process analysis I consider the process provided after the blocking order. Due process generally requires the government to provide notice and an opportunity to be heard before depriving a person of property interests. See Mathews, 424 U.S. at 333, 96 S.Ct. 893 (“This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest.”). While AHIF-Oregon does not argue that a due process violation occurred when its assets were frozen in February 2004 pending investigation, OFAC’s September 9, 2004 designation represented the culmination of that investigation and finalization of the blocking order. Accordingly, AHIFOregon was entitled to post-deprivation notice without “unreasonable delay,” and certainly before the September 9, 2004 designation finalizing the blocking order. See Gete v. I.N.S., 121 F.3d 1285, 1296 (9th Cir.1997) (civil forfeiture proceeding). In an analogous situation, the Ninth Circuit reviewed the administrative forfeiture proceedings of the INS and concluded that plaintiffs raised substantial due process claims. Individuals challenged the INS’ seizure of their vehicles, alleging violations of their due process rights, after unlawfully crossing into the United States with illegal aliens. Id., 121 F.3d 1285. Specifically, plaintiffs challenged the INS’ notice following the seizure; the INS sent each individual a form letter stating that property had been seized, but did not identify the statutory provisions allegedly violated, and did not state the factual basis for the alleged violation. In applying the standard requiring that due process provide sufficient notice, the court determined notice that lacked the “factual and legal bases” for the vehicle seizure was inadequate. Without knowing the “statutory provisions and regulations they are accused of having violated,” even owners who are present for the seizure “may not be able to clear up simple misunderstandings or rebut erroneous inferences drawn by the INS.” Id. at 1297-98. Furthermore, “ambiguous factual circumstances may in many cases cause vehicle owners to guess incorrectly why their vehicle has been seized, thus preventing them from responding effectively to the unspecified accusations!]” Id. at 1298. The court noted that requiring INS to disclose the reasons for the seizures would prevent “erroneous and fundamentally unfair forfeiture decisions that inevitably flow from so haphazard a process” and would simply require that INS “provide to vehicle owners information that is already in its possession.” Id.; see also Goldberg, 397 U.S. at 267-68, 90 S.Ct. 1011 (affected party must have notice “detailing the reasons for a proposed termination” where challenge is to “incorrect or misleading factual premises or on misapplication of rules or policies”); Mullane, 339 U.S. at 314, 70 S.Ct. 652 (notice must “reasonably ... convey the required information”). Here, after AHIF-Oregon was told it was under investigation, it received in batches the documents on which the government was relying'—totaling some 260 pages. Many of the documents did not refer to AHIF-Oregon by name, and were press releases and newspaper articles. AHIF-Oregon was not told which provisions of the executive order were applicable, and was not given an explanation of why the documents were relevant. The blocking notice issued in February of 2004 stated only that the government “has reason to believe that [AHIF-Oregon] may be engaged in activities that violate” the IEE-PA. Szubin Deck Attach A. As a result, AHIF-Oregon speculated that its provision of Korans to prisoners might be troubling OFAC; after all, OFAC asked for a copy of the Koran AHIF-Oregon had been distributing. It also believed that OFAC might view its provision of funds to Chechnya as problematic, based on some of the documents provided by OFAC. In September 2004, AHIF-Oregon received the designation. OFAC’s letter stated only that AHIF-Oregon “falls within the criteria for designation set forth in the [Executive] Order at § I(c)-(d).” AR2031. In other words, OFAC designated AHIF-Oregon for being owned or controlled by a designated entity, and for providing financial, material or technological support for, or financial or other services to acts of terrorism or to designated entities. While the press release gave reasons for the designation, it stated that AHIF-Oregon, Al-Buthe, and AHIF-Comoros Islands were designated pursuant to sections (d)(i) and (d)(ii), and did not cite the “owned or controlled” provision. Furthermore, many of the reasons given in the press release for the designation were not contemplated by AHIF-Oregon. The press release stated “[t]he investigation shows direct links between the U.S. branch and Usama bin Laden,” which is not a statement supported by the unclassified record and not an issue about which AHIF-Oregon knew OFAC was concerned. The press release mentioned the allegations of criminal violations of tax laws, which is not an activity for which AHIF-Oregon may he designated under the executive order. Although the press release mentioned Al-Aqil and the fact that he had been previously designated, it did not state that Al-Aqil owns or controls AHIF-Oregon. The only item mentioned in the press release AHIF-Oregon correctly suspected was at issue was its donation of funds to Chechnya. Similarly, OFAC gave no information accompanying its notification to AHIF-Oregon that it was evaluating whether to redesignate the organization. OFAC finally gave specific reasons for AHIF-Oregon’s redesignation in its February 2008 notice-four years after AHIF-Oregon’s assets had been frozen, three years after its initial designation, and six months after AHIF-Oregon filed this lawsuit. In that letter, it informed AHIF-Oregon that the distribution of the Koran was not a basis for the September 2004 designation. Instead, it redesignated AHIF-Oregon for being owned or controlled by Al-Aqil and Al-Buthe, and that as “an active arm” of AHIF, “including its direct provision of funding to AHIF in Saudi Arabia,” AHIFOregon allowed AHIF to “continue supporting terrorist activities.” AR2198-99. In defending the possibility of redesignation, AHIF-Oregon could have assumed that OFAC would consider the items it mentioned in the press release accompanying the initial designation, but many of those items were not referenced in the redesignation notice. Notably, OFAC did not repeat the assertion that there were “direct links between the U.S. branch and Usama bin Laden.” It is true that the process used by OFAC satisfied the requirements of Nat’l Council of Resistance of Iran v. Dep’t. of State, 251 F.3d 192, 209 (D.C.Cir.2001) (“NCRI”). NCRI directed that, “as soon as the Secretary has reached a tentative determination that the designation is impending, the Secretary must provide notice of those unclassified items upon which he proposes to rely to the entity to be designated,” and give the entity an “opportunity to present, at least in written form, such evidence as those entities may be able to produce to rebut the administrative record or otherwise negate the proposition that they are foreign terrorist organizations.” 251 F.3d at 209. I am not persuaded by NCRI. The court was not asked to consider whether notice should identify the statutory and factual reasons for the designation. Furthermore, in determining what process was due, NCRI did not apply the Mathews criteria and the process it called for does not meet the Mathews criteria in this particular situation. Applying the first Mathews factor, AHIF-Oregon faced a final decision depriving it of its assets, with the added possibility of being designated an SDGT. Its interests in receiving notice outlining the reasons for the proposed continued deprivation were substantial. Although AHIF-Oregon could file a request for reconsideration after OFAC issued a designation decision, it was not assured that the request would be considered in a timely manner since OFAC’s regulations impose no time limits on OFAC’s decision making. Indeed, it took OFAC three years to issue a decision on AHIF-Oregon’s request for reconsideration, and in the meantime AHIF-Oregon’s assets were frozen. Additionally, evaluating the second Mathews criteria, in a situation where the government has not leveled specific charges at an organization, the risk of erroneous designation is possible, and the value of additional safeguards is substantial. AHIF-Oregon obtained the record OFAC proposed to rely on, but the record consisted of over 260 pages, contained many documents seemingly unrelated to AHIF-Oregon, and contained no documents that could be considered the “smoking gun.” The government lists the information of which AHIF-Oregon was purportedly aware at the time OFAC was considering designating it—AHIF supported al Qaeda and Al-Aqil had been designated—but as Gete recognized, a summary of OFAC’s reasons for considering the designation prior to that decision would have saved AHIF-Oregon the effort of responding to imagined concerns and may have increased its likelihood of success. Finally, the designation decision and press release were too late to qualify as notice prior to the deprivation. With regard to the third Mathews criterion, the government does not argue it is unable to provide a summary of the charges, only that it is not required to do so. The government provides no explanation for its inability to provide earlier the kind of lengthy explanation it issued in support of its redesignation decision, or even a summary of the contents of that explanation. Finally, when facing redesignation, although AHIF-Oregon had the benefit of the press release announcing its designation, the press release did not specify SDGT ownership or control of AHIF-Oregon as a reason for the designation. Furthermore, OFAC included at least one of the reasons in the press release that it did not mention in its redesignation decision— that AHIF-Oregon had “direct links” to “Usama bin Laden.” The question is whether, despite the government’s unconstitutional notice procedures, I can say “any due process violation was harmless beyond a reasonable doubt.” Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 127 S.Ct. 2489, 2497, 168 L.Ed.2d 166 (2007). AHIF-Oregon claims that had it known the specific charges it faced it would have sought to: