Defense lawyers call Alien Terrorist Removal Court unconstitutional

Afghan lawful permanent resident deported without criminal charge

Court-appointed public defenders for the first person deported through the Alien Terrorist Removal Court said the 30-year-old secretive court should be struck down as unconstitutional, arguing it denied their client due process. Lawyers Matthew Farley and Mary Manning Petras told The Washington Post they were denied access to the evidence used against 47-year-old Nazira Haji Zada, an Afghan lawful permanent resident who was never charged with a crime.

Haji Zada, who had been living in Fort Worth, Texas, conceded she was an “alien terrorist” and waived her appeal of the removal order rather than continue litigating her case, according to a Friday statement from the US Department of Justice. The Friday announcement completed the first proceeding the Alien Terrorist Removal Court had heard since Congress created the court in 1996.

The Alien Terrorist Removal Court was established to handle deportation cases against non-US citizens accused of terrorism-related offenses when the underlying evidence is classified for national security reasons. The court sat dormant for 30 years before prosecutors activated it in July, filing the first case against Haji Zada. The July filing marked the first time the government had invoked the court’s procedures since its enactment.

US Attorney General Todd Blanche characterized the outcome as “a landmark case” and “a win for national security and the rule of law.” In the Justice Department’s Friday statement, Blanche said: “Those who support and condone terrorism should not be living in the United States, and this first-ever case before the ATRC shows how the Department will use every tool at its disposal to protect our country.”

Haji Zada was not herself charged with a crime in the US proceedings. Prosecutors had previously tried and convicted her son, Abdullah Haji Zada, and her son-in-law, Nasir Ahmad Tawhed, on terrorism charges tied to what authorities described as a plot to carry out a mass shooting on Election Day in 2024, inspired by the group calling itself Islamic State. In the proceedings against Haji Zada herself, prosecutors characterized her as the “matriarch” of the group who had worked “to radicalize the family.”

Farley and Petras argued that the Alien Terrorist Removal Court violated their client’s right to due process under the US Constitution. They said they were never shown the evidence the government intended to use against her.

“Our client’s choice to consent to removal should not be seen as an endorsement of this court’s legitimacy,” Farley and Petras said in a statement to The Washington Post. “Dragging lawful permanent residents into court but refusing to show them or their attorneys the evidence that will be used against them is a plain violation of due process. We are confident that the Alien Terrorist Removal Court will be struck down as unconstitutional as soon as a judge is asked to address the issue.”

Constitutional questions about the court’s structure and its use of classified evidence in removal proceedings remain unresolved.