The opinion of the court was delivered by: RICHEY
This matter comes before the Court as a result of a decision by the Secretary of State to order the closing of the Palestine Information Office ("PIO") of the Palestine Liberation Organization ("PLO") in Washington, D.C., pursuant to the Foreign Missions Act ("FMA"), 22 U.S.C. §§ 4301, et seq., because it is a "foreign mission." It is undisputed that the PIO engages in political activity and political propaganda in the United States as an agent of the PLO. See Exhibit 1 to Rahman Declaration. For foreign policy reasons, the Secretary of State has determined that the PLO is not welcome in the United States and that the PIO must cease operations as an "entity."
At the outset, the Court makes clear that it is not passing on the wisdom of such a foreign policy decision because "matters relating 'to the conduct of foreign relations . . . are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.'" Regan v. Wald, 468 U.S. 222, 242, 104 S. Ct. 3026, 82 L. Ed. 2d 171 (1984), quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589, 72 S. Ct. 512, 96 L. Ed. 586 (1952). The question for the Court to decide is whether the Secretary of State acted lawfully in determining, pursuant to the Foreign Missions Act, that the PIO is a foreign mission of the PLO. If the Secretary of State did act constitutionally and lawfully in pursuit of the government's legitimate interest in conducting foreign policy, his action must be upheld.
For the reasons set forth in this Opinion, the Court finds that the Secretary of State acted lawfully in determining that the PIO is a "foreign mission" of the PLO. Similarly, the Court finds that the Secretary's action was fully in consonance with the Constitution. As Chief Justice Warren held in United States v. O'Brien, 391 U.S. 367, 376, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968), when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest can justify regulating the nonspeech conduct. This is precisely what has here occurred.
II. FACTUAL BACKGROUND OF THE CASE
The PIO is a registered agent of the PLO under the Foreign Agents Registration Act ("FARA"), 22 U.S.C. §§ 611-621. Complaint para. 12; see also Exhibit 1 (Plaintiffs' FARA statement) to Rahman Declaration. So is the PIO's director, a naturalized U.S. citizen, Hasan Abdel Rahman. Complaint para. 12; Rahman Declaration para. 6; Exhibit 1 to Rahman Declaration. The PIO has been operating since 1978. Rahman Declaration para. 2. The annual budget of the PIO is approximately $ 350,000. Rahman Declaration para. 8. This budget is largely paid for by the Palestine National Fund, which plaintiffs identified to the Court at a status conference held November 25, 1987 as the finance department of the PLO. Rahman Declaration para. 8. According to its FARA statement, the PIO operates exclusively on behalf of the PLO. See Exhibit 1 to Rahman Declaration.
As late as May 13, 1987, the State Department was of the view that the PIO, identified at the time as the "PLO Information Office," "neither reflects nor requires the approval of the United States Government." Letter from James A. McVerry, Political Officer in the Office of Jordan, Lebanon and Syrian Affairs, Department of State, to Robert Clarke, Director of Government Affairs, National Association of Arab-Americans; Exhibit 2 to Rahman Declaration. This letter went on to say that "so long as that office regularly files reports with the Department of Justice on its activities as an agent of a foreign organization, complies with all other relevant U.S. laws, and is staffed by Americans or legal resident aliens, it is entitled to operate under the protection provided by the First Amendment of the Constitution." Id. (emphasis added). This letter was written with obvious reference to the FARA, not the FMA here involved. Nevertheless, the FMA is another relevant U.S. law with which the PIO must comply, and the State Department said nothing less in May, 1987.
Approximately four months later, the PIO received a letter from Ambassador James E. Nolan, Jr., Director of the Office of Foreign Missions at the Department of State, informing that Deputy Secretary of State John C. Whitehead had designated the PIO a "foreign mission" of the PLO pursuant to 22 U.S.C. § 4302(a)(4)(B).
The Deputy Secretary determined that the PIO met the criteria of a "foreign mission" as defined in the Foreign Missions Act. In addition, and acting pursuant to a delegation of authority from the President under Article II of the Constitution to conduct this country's foreign affairs to the Secretary of State, the PIO was ordered to cease operating as a foreign mission of the PLO. See Letter from Ambassador James E. Nolan, Jr. to the PIO dated September 15, 1987; Exhibit A to Plaintiffs' Complaint. The Department of State further determined that the PIO "(1) must divest itself of all real property under 22 U.S.C. § 4305(b); (2) must acquire and dispose of all benefits as defined by 22 U.S.C. § 4302(a) and as designated by the Department, through the Office of Foreign Missions; and (3) must discontinue use and dispose of all such benefits." Id.
The designation of the PIO as a "foreign mission" of the PLO was published in the Federal Register. 52 Fed. Reg. 37035 (October 2, 1987). See Exhibit B to Plaintiffs' Complaint. The PIO was at first given 30 days to cease operating as a foreign mission to the PLO, but was subsequently given until December 1, 1987 to comply with the State Department's order. Pursuant to this Court's request during a status conference held November 25, 1987, the Department of State agreed to extend the order until 11:59 p.m., December 3, 1987 in light of the fact that this matter had to be reassigned to this Court at the last minute.
On November 13, 1987, plaintiffs filed a complaint seeking declaratory and injunctive relief and at the same time filed a motion for preliminary injunction. Plaintiffs' allege several infirmities regarding the Secretary of State's designation of the PIO as a "foreign mission," "mission," or "entity" of the PLO and decision to order the PIO to cease operating as a "foreign mission" of the PLO. Specifically, the PIO contends that the defendants have exceeded their statutory authority under or acted contrary to the Foreign Missions Act, that the order violates plaintiffs' rights to freedom of speech and association, that the Foreign Missions Act, as applied, is unconstitutionally vague, and that the failure to provide adequate procedures through which plaintiffs can challenge defendants' decision violates their due process rights under the Constitution.
Defendants disagree with these allegations and view the case not as an attack on anyone's constitutional rights, but rather as a legitimate exercise of the Executive's constitutional responsibility to conduct foreign affairs. Defendants have repeated that the basis for the order was not to stifle speech or associational rights, but to close down a particular foreign mission. See Exhibit 1 to Complaint.
At the status conference held November 25, 1987, the parties tentatively agreed to the Court's suggestion that plaintiffs' motion for a preliminary injunction be consolidated with the merits pursuant to Fed.R.Civ.P. 65(a)(2). At the status conference, the parties also tentatively agreed that this matter could be considered under Rules 12 and 56 of the Federal Rules of Civil Procedure as if the parties presented cross-motions for summary judgment. Such a decision on the merits could save two appeals and spare the litigants, as well as the Court, additional expense. On further consideration, the defendants filed a statement of material facts not in dispute on November 27, 1987. These facts were drawn from plaintiffs' pleadings and declarations. Plaintiffs also filed a statement of material facts not in dispute on the same day. Although they disagreed with defendants' facts, plaintiffs did not withdraw any facts stated in their pleadings or declarations which the Court accepts as true in connection with this Opinion.
This Opinion shall constitute the Court's findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a) to the extent the same is considered requisite for plaintiffs' request for injunctive relief. In any event, after a thorough and considered view of all the papers submitted by the parties, the Court concludes that, in light of the undisputed facts ...