▶ Watch Video: Details on first case in Alien Terrorist Removal Court
A court-appointed lawyer for an Afghan woman and U.S. permanent resident whom the Justice Department alleges is an “alien terrorist” vowed Thursday to vigorously fight the government’s efforts to deport her, telling a federal judge that the entire legal process is unfair and unconstitutional.
In the first-ever test case before the secretive and never-before-used Alien Terrorist Removal Court, federal public defender Matthew Farley accused the Justice Department of violating Nazira Haji Zada’s due process rights.
He asked the judge to immediately release his client — a request the judge denied — but the issue is expected to be reviewed at a subsequent detention hearing.
“This entire scheme is in violation of due process and unconstitutional,” Farley told U.S. District Judge Joan Ericksen, the chief judge of the Alien Terrorist Removal Court.
Farley said the case represents “a runaround to bringing a criminal case” because it relies on a lower evidentiary standard to prove whether she is a non-citizen terrorist who can be deported under the law.
Thursday’s hearing marked the first time the Alien Terrorist Removal Court has ever convened since it was first created in 1996. It was set up to deport noncitizens who could not be removed by the traditional legal process because the information about their cases was classified and could not be made public for national security reasons.
It is so new that it lacks even an electronic filing system — a fact the judge acknowledged as she called for patience while the court staffers work to stand up the infrastructure for the court, which she noted has been “dormant and untested for three decades.”
The targets of its noncitizen terrorist removal proceedings — including legal permanent residents — are not permitted to review the classified evidence against them. And unlike criminal proceedings, targets are barred from legally challenging how the evidence was collected by the government.
Green card holders like Haji Zada, who lives in Texas, have slightly elevated protections, such as the right to have the government appoint her counsel with a security clearance.
Haji Zada appeared in court on Thursday wearing a cream-colored head covering and relying on an interpreter to help her understand the proceedings.
Justice Department lawyers allege that Haji Zada, who has no criminal history and has never been charged with a crime of terrorism, helped “radicalize” her family members — including her then-teenage son and her son-in-law to support the Islamic State group.
Last year, her son, Abdullah Haji Zada, and son-in-law, Nasir Ahmad Tawhedi, were convicted after each pleading guilty in a federal court in Oklahoma to purchasing two AK-47-style rifles and 500 rounds of ammunition from an undercover FBI agent as part of an alleged plot targeting the 2024 election in support of the Islamic State.
At the time of his arrest in 2024, Zada’s son was only 17. He was charged as an adult and pleaded guilty to gun crimes when he was 18. Tawhedi pleaded guilty to terrorism and gun offenses.
In his sentencing memo, lawyers for the young Haji Zada portrayed him as a mere teenager who was only trying to fulfill the wishes of his older brother-in-law, and not as someone driven by radical ideology.
“He never promoted extremist views, sought out radical content, or communicated with any known recruiters. He took no independent steps to plan or advance violence, and there is no indication he understood the full scope of his brother-in-law’s scheme,” his lawyers wrote at the time.
Ericksen, who is based out of the federal district court in Minnesota and traveled to Washington, D.C., to preside over the hearing, pressed the government to give Haji Zada more details about the evidence against her during the hearing after Acting Deputy Assistant Attorney General Hayden O’Byrne initially only provided vague claims that the government had obtained classified information suggesting she was an “alien terrorist.”
Some of the court documents pertaining to the case were only made public late Wednesday night, though much of the evidence against her remains classified.
The FBI’s evidence, he said, shows she is a “supporter of Isis and has pledged loyalty to Isis.”
He added that she had covertly radicalized the family, all without her “unsuspecting husband” knowing.
Haji Zada’s attorney said he was concerned that the unclassified summary of the case provided to his client contained little more than two paragraphs of information, some of which merely reiterated things that are already available in the public record through her son’s criminal case in Oklahoma.
He also alleged that the government intends to prevent even him and his co-counsel from reviewing any of the classified evidence, “which I think is contrary to the statute,” he said.
Ericksen told the Justice Department that while she won’t yet rule on whether the government must provide access to the classified evidence, she intends to rely on the “working presumption that defense counsel is going to be able to review the classified information.”
She added that she will insist that the government disclose a “reason and rationale” for why certain pieces of information cannot be otherwise disclosed.
Thursday’s hearing had a few awkward moments that were perhaps fitting for a federal court that has never before convened in history. At one point, a phone inside the courtroom started ringing.
The court also grappled with feedback noise coming from one of its microphones, and the judge was not able to discuss possible dates for future hearings because she did not have access to her calendar in the courtroom.
She added that she believes that eventually, the court would establish an electronic filing system.
“I believe it will be on Pacer,” she said. “And I don’t believe we will be able to charge for it,” she added.