A Ghost Court From 1996 Awakens To Try To Deport an Alleged ISIS Matriarch

For 30 years, it sat on the books untouched, a legal instrument built for a crisis that never quite materialized. Last month, the Justice Department reached for it anyway.A 47-year-old lawful permanent resident from Afghanistan living in Fort Worth, Texas, Nazira Haji Zada, has become the first person in American history to face the Alien Terrorist Removal Court, a tribunal created by Congress in 1996 and left unused ever since. The United States government wants Ms. Haji Zada removed from the country over her alleged role in a foiled ISIS-inspired plot to gun down voters on Election Day 2024, a conspiracy her own son and son-in-law have already admitted to in criminal court.Ms. Haji Zada, however, has not been charged with a crime. Under the rules of the court now hearing her case, she may never see most of the evidence used to justify throwing her out of the country.No administration has reached for this tool until now. So, why is Washington activating a court it left dormant for three decades, and why in this case?“The fact that no administration, Republican or Democratic, used this court for three decades suggests the statute was never viewed as an indispensable tool,” a professor of law at Seton Hall Law School, Jonathan Hafetz, tells The New York Sun. “Its sudden revival says at least as much about the current administration’s approach to maximizing executive power and denying legal protections to immigrants as it does about the underlying allegations.”A Court Built For A Crisis That Never CameThe Alien Terrorist Removal Court was written into the Antiterrorism and Effective Death Penalty Act, signed by President Clinton in 1996 in the aftermath of the Oklahoma City bombing.Congress designed it as a workaround for a specific problem — how to deport a suspected terrorist when the evidence against that person is classified and disclosing it in an ordinary courtroom would expose sources, methods or ongoing investigations.Congress didn’t invent a new bench for this; it borrowed one. The five judges who hear the cases are to be pulled from the Foreign Intelligence Surveillance Court, the same panel that approves the government’s spy warrants, and they can look at secret evidence behind closed doors. The bar for ordering someone removed is lower than what prosecutors need to win a criminal case.The Justice Department filed its application to remove Ms. Haji Zada on July 15. Agents arrested her days later at her Fort Worth home.The government has defended both the arrest and its choice of forum. The assistant attorney general for national security, John Eisenberg, has called the court a necessary tool, arguing that the administration should not have to choose between letting a dangerous noncitizen stay in the country and exposing classified intelligence in open proceedings.Two AK-47-style rifles and 500 rounds of ammunition: That’s what Abdullah Haji Zada and his brother-in-law, Nasir Ahmad Tawhedi, bought from an undercover FBI employee in rural Oklahoma on October 7, 2024. Abdullah was 17 at the time of the purchase, which led to the unraveling of their plan for an Election Day shooting. Abdullah has since pleaded guilty and been sentenced to 15 years in prison; Tawhedi admitted to conspiring on behalf of ISIS. Neither is expected to remain in the country past his release date.Ms. Haji Zada was not charged alongside them. An FBI summary filed in the new court, however, alleges she pledged loyalty to ISIS, worked to indoctrinate her children with the group’s ideology and supported the plan that her son and son-in-law were building. The then-acting attorney general, Todd Blanche, cast the case as one involving alien terrorists who never should have been in America in the first place.Secret Evidence, A Public FightMs. Haji Zada appeared before the court’s chief judge, Joan Ericksen, on July 30 in Washington, flanked by two court-appointed public defenders and a pair of interpreters. She interrupted the clerk briefly at the start of the hearing; her remarks went untranslated, and she said little else through the roughly 40-minute session.Ms. Haji Zada’s lawyers used the appearance to signal the fight ahead, arguing that the government’s push to remove a longtime green card holder amounts to an end run around the ordinary criminal process. “This entire scheme is in violation of due process and unconstitutional,” public defender Matthew Farley told the judge. Prosecutor Hayden O’Byrne countered that the United States is alleging, backed by classified evidence, that Ms. Haji Zada is an alien terrorist.The statute itself is where the fight actually lives. Ms. Haji Zada’s green card status matters here — it entitles her to a special attorney with security clearance, someone who can review the classified material behind closed doors and push back on its accuracy. Congress wrote that protection in specifically for permanent residents, on the theory that their due process rights sit closer to those of a citizen than of a visa holder. Her public defenders say it’s not enough: Having a lawyer who can see the evidence but can’t share it with his client, they argue, isn’t the same as giving her a real chance to fight back.“The statute requires that if classified information is used, an unclassified summary is provided that enables the immigrant to defend herself,” a professor of law and public policy at Georgetown University, David Cole, tells the Sun. “Having represented many immigrants in similar situations, I’d say it’s very difficult for the government to rely on secret evidence, keep it secret, and enable the immigrant to defend herself fairly.”Not every scholar who has studied the court agrees the arrangement is unfair. The due process burden a green card holder carries is offset, in this view, by court-appointed counsel with a security clearance who can see the classified file, even if that lawyer cannot share it with the client.“The judges of the ATRC are among the most serious on the federal bench,” the associate dean for academic affairs and a professor of law at George Washington University Law School, Aram Gavoor, tells the Sun. Mr. Gavoor, a former career Justice Department attorney who published a 2020 law review article concluding the framework passes constitutional muster, notes that Chief Justice John Roberts selected the court’s five judges from a pool with years of experience on the intelligence surveillance court.Others see the odds as closer to a coin flip.“There are usually easier ways to deport someone, such as for committing a crime or overstaying a visa,” an immigration attorney and retired professor of immigration law practice at Cornell Law School, Stephen Yale-Loehr, tells the Sun. “The Trump administration is looking at every nook and cranny of the immigration statute to find new ways to deport people.”Strip away the legal details and the two camps agree on the facts but split on what they mean. One side sees a statute that Congress built with real safeguards for green card holders — cleared counsel, an unclassified summary, fast-track appellate review, and judges drawn from the nation’s most experienced national-security bench. The other sees a proceeding that lets the government make its case on evidence the accused never gets to see, under a lower burden of proof than any criminal court would allow.Why the tool sat untouched for three decades has as much to do with resources as with the law itself. Mr. Gavoor traces its disuse to a simple allocation of priorities after September 11: Prosecutors preferred to criminally charge and convict noncitizen terrorists rather than risk a loss in an untested court with rigorous procedures. Beyond that, Washington has had persistent trouble finding countries willing to accept convicted terrorists once their prison terms end. What changed, in Mr. Gavoor’s view, is that immigration enforcement itself has become a higher priority than it was.Mr. Cole at Georgetown University reads the timing differently. He notes the government has long been able to deport people under broad “terrorist” provisions without ever invoking the removal court, which suggests that something specific about this case pushed prosecutors to reach for it now.“Presumably it is worried that it could not make its case in an ordinary deportation hearing,” he tells the Sun.What Comes NextJudge Ericksen rejected the defense’s early bid to dismiss the case outright, though the fight over the court’s constitutionality is only beginning.A detention hearing is expected to follow, and any ruling against Ms. Haji Zada is likely to trigger an appeal to the federal appellate circuit in Washington, setting up a multiyear test of a mechanism that waited three decades for its first real trial.The court is so new it still lacks an electronic filing system, a gap Judge Ericksen has acknowledged, telling the courtroom the process may at times seem ‘inelegant.’”Mr. Hafetz also warns the stakes reach beyond one Fort Worth household.“The case creates a risk of greater use of secret evidence in immigration proceedings,” he explains. “It also creates a risk of overbroad interpretations of terrorism to deprive individuals of due process based on mere association, thus endangering First Amendment protected activity.”The Justice Department, for its part, is already talking about the case as a first step rather than a one-off.“If the case is won by the U.S. Department of Justice and upheld on appeal, that government will have opened a new and valuable tool in its immigration counter-terrorism kit,” Mr. Gavoor says. “There will be more such cases, but to be clear, the ATRC will never be a high-volume court or a quantitatively significant mechanism for mass removals of aliens because of the resource-intensive procedures required to bring and litigate a case.”

A Ghost Court From 1996 Awakens To Try To Deport an Alleged ISIS Matriarch

A Ghost Court From 1996 Awakens To Try To Deport an Alleged ISIS Matriarch

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