context: First, as earlier explained, the Secretary should indicate in her administrative summary which sources she regards as sufficiently credible that she relies on them; and she should explain to which part of section 1189(a)(1)(B) the information she relies on relates. Second, although the Secretary must give the PMOI an opportunity to rebut the unclassified material on which she relies, AEDPA does not allow access to the classified record as it makes clear that classified material "shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review." 8 U.S.C. SS 1189(a)(4)(B)(iv)(II); see id. SS 1189(c)(2) (providing for court's "ex parte and in camera review" of "classified information used in making the designation"). Our cases under AEDPA have suggested that this procedure can satisfy due process requirements, at least where the Secretary has not relied critically on classified material and the unclassified material provided to the FTO is sufficient to justify the designation.
citation_a.signal: see also
citation_a.identifier: 370 F.3d 1174, 1182, 1184
citation_a.parenthetical: pilot denied licensure has no right to access to classified record because "[t]he due process protections afforded ... parallel those provided under similar circumstances in [NCRI I and PMOI II], and are sufficient to satisfy our case law"
citation_a.sentence: See NCRI II, 373 F.3d at 159-60; PMOI II, 327 F.3d at 1243 (“We already decided in [NCRI I ] that due process required the disclosure of only the unclassified portions of the administrative record.”) (emphasis in original); NCRI I, 251 F.3d at 202, 208-09 (“We acknowledge that in reviewing the whole record, we have included the classified material, but] ... we will not and cannot disclose the contents of the record,” which “is within the privilege and prerogative of the executive”); see also Jifry v. Fed. Aviation Admin., 370 F.3d 1174, 1182, 1184 (D.C.Cir. 2004) (pilot denied licensure has no right to access to classified record because “[t]he due process protections afforded ... parallel those provided under similar circumstances in [NCRI I and PMOI II], and are sufficient to satisfy our case law”); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 164 (D.C.Cir.2003) (“HLF’s complaint, like that of the Designated Foreign Terrorists Organizations in [NCRI I and PMOI II ], that due process prevents its designation [under a different law] based upon classified information to which it has not had access is of no avail.”). We note, however, that none of the AED-PA cases decides whether an administrative decision relying critically on undisclosed classified material would comport with due process because in none was the classified record essential to uphold an FTO designation.
citation_b.signal: see
citation_b.identifier: 251 F.3d 202, 202, 208-09
citation_b.parenthetical: "We acknowledge that in reviewing the whole record, we have included the classified material, but] ... we will not and cannot disclose the contents of the record," which "is within the privilege and prerogative of the executive"
citation_b.sentence: See NCRI II, 373 F.3d at 159-60; PMOI II, 327 F.3d at 1243 (“We already decided in [NCRI I ] that due process required the disclosure of only the unclassified portions of the administrative record.”) (emphasis in original); NCRI I, 251 F.3d at 202, 208-09 (“We acknowledge that in reviewing the whole record, we have included the classified material, but] ... we will not and cannot disclose the contents of the record,” which “is within the privilege and prerogative of the executive”); see also Jifry v. Fed. Aviation Admin., 370 F.3d 1174, 1182, 1184 (D.C.Cir. 2004) (pilot denied licensure has no right to access to classified record because “[t]he due process protections afforded ... parallel those provided under similar circumstances in [NCRI I and PMOI II], and are sufficient to satisfy our case law”); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 164 (D.C.Cir.2003) (“HLF’s complaint, like that of the Designated Foreign Terrorists Organizations in [NCRI I and PMOI II ], that due process prevents its designation [under a different law] based upon classified information to which it has not had access is of no avail.”). We note, however, that none of the AED-PA cases decides whether an administrative decision relying critically on undisclosed classified material would comport with due process because in none was the classified record essential to uphold an FTO designation.