On June 25, 1999 the United States Court of Appeals for the District of Columbia denied the petition filed by the LTTE challenging its designation as a Terrorist Organization by the Department of State under provisions of the Anti-Terrorist and Effective Death Penalty Act. The Petition for Rehearing seeks to have these provisions invalidated in their entirety.

In their Petition for Rehearing, LTTE stated that the court has acknowledged that it is “forbidden” and has “no way of evaluating” material compiled by the Secretary, reached “no judgments whatsoever” regarding their truth or falsity, that the entire record is “hearsay” never subjected to “adversarial testing” without opportunity to present “counter-evidence.” In deciding whether “the Secretary, on the face of things, had enough information before her to come to the conclusion that the organization might be foreign and engaged in terrorism,” the Court holds “[a]nyone of the incidents attributed” to the Petitioners in any of the materials, whatever the source, would be sufficient. The Court concluded “we have no way of judging” with respect to the LTTE’s claim that it is a de facto government, and not a “foreign organization,” a requirement for the designation. The Court said that this is a political question and nonreviewable. With respect to the key question of whether LTTE’s activities threaten the security of the United States or its nationals, the Court in its opinion stated: “For all we know, the designation may be improper because the Secretary’s judgment that the organization threatens our national security is completely irrational and devoid of any support. Or her finding about national security may exactly correct. We are forbidden from saying. That we cannot pronounce on the question does not mean that we must assume the Secretary was right. It means that we cannot make any assumption, one way or the other.”

LTTE pointed out in its petition for rehearing that the Secretary of State may well have acted on false allegations of the Sri Lankan government or inaccurate press accounts or other completely unreliable hearsay. LTTE has had no opportunity to profess its innocence, much less to prove its innocence. The judicial review provision of the statute promises protection of rights in accordance with fairness, justice and truth in the grand and generous tradition of  American jurisprudence. But the Court’s decision in the instant matter has rendered the judicial review provision a nullity.

LTTE further argued in petitioning for rehearing that if the courts are forbidden to reach a judgments themselves regarding the truth of the Secretary’s finding, where then is the judiciary’s independence? “The legitimacy of the judiciary ultimately depends on its reputation for impartiality… That reputation may not be borrowed by the political branches to cloak their work in the neutral colors of judicial action. LTTE further argued that the Anti-Terrorism and Effective Death Penalty Act as construed, injects the federal judiciary into the midst of the most emotional, potentially violent misinformation and propaganda-laden international political issue with the sole effect of placing a non-discretionary judicial imprimatur on an executive action. It further notes that by denying review, the Court which has performed no judicial or even meaningful functions appears to a world which takes judicial acts seriously to have decided the case on its merits. LTTE contends that such action violates judicial powers guaranteed in Article III of the United States Constitution.