Woman in first Alien Terrorist Removal Court case mounts constitutional challenge over secrecy

By Tierney Sneed, Holmes Lybrand, CNN

(CNN) — The woman facing the first-ever case in the Alien Terrorist Removal Court is challenging the constitutionality of the deportation tribunal, setting up a major test of the Trump administration’s decision to activate the court, which had never been used in its 30-year history.

Lawyers for Nazira Haji Zada — a legal permanent resident from Afghanistan who is accused of having ISIS sympathies and of assisting her son in a thwarted terror plot that targeted the 2024 Election — said during an initial hearing Thursday that the court’s procedure’s run afoul of several amendments of the Constitution.

“This entire scheme is in violation of due process and is unconstitutional,” said Matthew Farley, a federal public defender who has been appointed to represent Haji Zada.

Their arguments could set up months, if not years, of litigation over the court’s constitutionality, a question that could ultimately travel to the Supreme Court.

Judge Joan Ericksen, the chief judge of the court, who is presiding over the case, denied a request that Haji Zada be immediately released. But she said those constitutional issues will be briefed alongside other legal disputes that have already arisen in the novel case.

Congress created the court in 1996 as a way for the government to protect state secrets in deportation cases where the disclosure of its evidence against an alleged alien terrorist risked national security. (Alien terrorist is a term defined in immigration law).

Until the Justice Department’s decision to file the case against the woman earlier this month, however, prior administrations avoided using the court, relying instead on the procedures in normal deportation proceedings for handling classified information.

The filings that have been made public in the case against Haji Zada give a very limited view of why the government thinks she is terrorist and why it believes disclosing that evidence would imperil national security. The court’s procedures allow for the government to withhold that evidence not just from the public, but from the accused alien terrorist herself.

Farley called those procedures “woefully inadequate” and noted that the unclassified summary of the case that has been given to Haji Zada was just two paragraphs — and that one of them just described the prior convictions of her son and son-in-law for the terror plot.

Last summer, the men — Abdullah Haji Zada and Nasir Ahmad Tawhed — pleaded guilty to charges accusing them of purchasing rifles and ammunition for a plotted terrorist attack for Election Day in 2024. Prosecutors alleged in court Thursday that the alien court defendant, Nazira Haji Zada, had helped to “radicalize the family.”

Battles over secrecy

Ericksen signaled she planned to examine closely the government’s justification for keeping evidence hidden from Haji Zada and the public. The judge said a blanket explanation would not suffice, that for each piece of information that the Justice Department can’t disclose, she will want “a reason and rationale for why disclosure of that information would be detrimental to national security.”

The 45-minute hearing — the first public hearing ever before a court, after a sealed proceeding with just the Justice Department and the judge earlier this month — was aimed at explaining to the alleged alien terrorist the general allegations against her and some of the court’s procedures. Haji Zada was arrested Tuesday in Texas, where she lives. She relied on two translators, communicating mostly with head nods affirming she understood what was being said.

Beyond the constitutional claims her lawyers said they were raising, a dispute is already emerging around the sharing of classified information in the case. The law entitles Haji Zada, as a legal permanent resident, a special attorney who can view classified evidence and interrogate it on her behalf — but not share that information with her. However, Acting Deputy Assistant Attorney General Hayden O’Byrne, representing the DOJ at the hearing, said that another provision of the law allows for the government to withhold certain classified information from that special attorney as well.

Ericksen said the issue will be briefed in writing and that she would need “pretty strong” arguments from DOJ for its position.

The judge acknowledged that since this was the first case in a court that was “dormant and untested for three decades,” it was still in the “early stages of implementing an infrastructure.” Both the judge and the lawyers shuffled through paper copies of the relevant statute throughout the hearing, and some of the proceedings dealt with logistics of filing court submissions, in the absence of a digital court filing system, which is in the process of being set up.

There might be moments that appear “less elegant,” the judge said, while expressing a commitment to moving forward with the case with “fealty to the constitution.”

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