On Sept. 11, the Alien Terrorist Removal Court (“ATRC”) unsealed records showing that the first-ever case brought in the tribunal’s 30-year history resulted in a successful deportation three weeks earlier. The Respondent, a Lawful Permanent Resident named Nazira Haji Zada, decided to accept deportation rather than mount a removal defense in a tribunal where respondents cannot review secret evidence nor challenge whether that evidence was obtained illegally. To do so, she conceded she is an “alien terrorist” and waived her right to appeal. As a result, the government achieved its objective without being required to defend the ATRC’s constitutionality, and Ms. Haji Zada was removed to Afghanistan on Aug. 25.
The outcome of In re Haji Zada undermines the argument advanced by some ATRC-watchers that the Trump administration’s invocation of the ATRC could be “good for the U.S. immigration system” and that “the ATRC may be less concerning than we think.” This argument, though based on reasonable concerns over the failures of the existing immigration court system, does not give sufficient weight to several critical dimensions of the ATRC process that were on display in In re Haji Zada.
Why the ATRC is Not Good for Non-Citizens and Democratic Rights
As an initial matter, the fact that Ms. Haji Zada decided to accept removal without invoking the extremely limited protections afforded to ATRC respondents is cause for concern. Without knowing the respondent’s motives for accepting removal, her decision indicates that the immense authority given to the executive branch through the ATRC can itself operate as a coercive element in the process, pressuring respondents to waive those protections and rendering them meaningless in practice.
The outcome also underscores the weight of the rights which the government was able to strip through the ATRC. By invoking the tribunal for the first time against a lawful permanent resident who had lived in the United States for years, the administration decided to test the ATRC and the lawfulness of its procedures under conditions where the constitutional status of the respondent was at its peak. Ms. Haji Zada was unquestionably a part of “the people” to whom the Bill of Rights applies. Nevertheless, when confronted with the ATRC process, she chose to give up her home and her lawful resident status to return to Afghanistan.
In other words, the administration not only succeeded in stripping her of her green card, it also stripped her of all of the protections of the Constitution which she had previously enjoyed during her residency through a process that more closely resembles a military tribunal, where defendants lack rights that are guaranteed in civil courts and can be convicted without the right to confront some of the evidence against them. The process also moved on a very rapid timeline: roughly six weeks passed between the Justice Department’s July 15 filing of the removal application and Ms. Haji Zada’s Aug. 25 deportation.
In re Haji Zada is also significant for what the Respondent was not able to do. In accepting her removal, Ms. Haji Zada waived her right to appeal the removal order to the D.C. Circuit, by which she may have tested the constitutionality of the ATRC procedures. These procedures bar respondents from suppressing evidence they allege was unlawfully obtained, and can deny them notice of whether it was gathered through coercion or in violation of the Fourth Amendment.
End-Running Article III Habeas Review
Those ATRC-watchers who believe that some good may come out of the ATRC point out, correctly, that the immigration court system is so stacked against non-citizens that there is little hope for fair adjudication through the Justice Department’s Executive Office for Immigration Review. At the minimum, so the argument goes, a non-citizen placed into ATRC proceedings will appear before an Article III judge, rather than before immigration judges subject to White House political pressure.
This is a legitimate point, but it obscures how the ATRC also keeps (or, at least, appears to keep) detention challenges out of district court. It expressly bars habeas review of continued detention after a removal order, allowing only constitutional claims and only in the D.C. Circuit, and it routes challenges to detention pending appeal to the D.C. Circuit as well. Whether a respondent held before the hearing could petition a district court for habeas is untested. The ATRC also does not authorize release hearings for respondents who are not lawful permanent residents, and the same evidentiary rules (secret evidence, no confrontation) apply in ATRC release hearings for green card holders. And while it is also true that the administration is stretching the limits of statutory authority for mandatory detention of non-citizens, in hundreds or thousands of cases, non-citizens have won release from detention through writs of habeas corpus, with some federal judges issuing blistering decisions denouncing the administration’s unconstitutional detention practices.
Consider the case of Yaakub Vijandre,* a 39-year-old DACA recipient who was detained and put into removal proceedings last October based on the allegation that his social media posts and photojournalism constitute support for terrorism. In that case, his habeas petitions argue that the evidence the government presented to support its allegation of terrorism consisted entirely of political and religious speech that is protected by the First Amendment, and on that basis Mr. Vijandre was able to challenge the evidence in a petition for a writ of habeas corpus. On Sept. 28, a federal judge adopted a magistrate’s report and recommendation denying the Trump administration’s motion to dismiss his petition on jurisdictional grounds, setting the stage for the court to subject the government’s evidence to constitutional scrutiny. Had Mr. Vijandre been put into ATRC proceedings, he would have had no statutory ability to see the evidence against him, and no way to mount the defense that he is now making in federal district court, unless the government volunteered to provide him with more information than the statute required.
What We Know About In re Haji Zada
Because of the black-box nature of ATRC proceedings, the facts of In re Haji Zada remain obscure. The administration has given the most prominent public account of the evidence against Ms. Haji Zada in the press release the Justice Department published on September 11, the day the ATRC unsealed records showing Ms. Haji Zada had been deported.
In its press statement, the Justice Department pointed to little activity by the respondent herself, instead pointing to a terrorist plot that was planned by her relatives. The press release references Ms. Haji Zada’s decision to “sign a contract to sell the family house” and states that the family bought one-way tickets to Kabul, including for her, shortly before Election Day 2024. It implies the house sale was related to financing the plot, but offers little beyond general assertions that she “supported” it. Despite this claim, the government never brought criminal charges against Ms. Haji Zada for material support for terrorism or conspiracy. These facts come concerningly close to guilt-by-association based on family ties.
The government also claims it provided Ms. Haji Zada with “approximately half a terabyte of documents” about the case, but the government also stated in paragraph 11 of its July 15 filing to the ATRC that these documents were unclassified, and that the classified evidence was “the only evidence” that supported the case for deportation.
What the administration’s public statements do show, however, is a desire to press the advantage provided by its successful first use of the ATRC. Assistant Attorney General for National Security John A. Eisenberg stated in the July 30 press release that the administration “will use all the tools at our disposal, including this court, to remove foreign nationals who betray our values and exploit our goodwill by supporting ISIS and terrorist plots.” (Emphasis added). DHS Secretary Markwayne Mullin said, “Those who plot acts of terrorism against the United States have no place in our country. We will find them, and we will use every lawful tool available to remove them.”
An Extraordinary Court in Extraordinary Times
In re: Haji Zada involved accusations of association with or support for ISIS, but the administration has defined “terrorism” to include far more than criminal acts of political violence against civilians. White House Deputy Chief of Staff Stephen Miller called Alex Pretti a “domestic terrorist” after the U.S. citizen and VA nurse was fatally shot by federal immigration officials in Minneapolis in January, then-Deputy Attorney General Todd Blanche referred to anti-ICE protesters in Chicago as “domestic terrorists,” and the administration has formally labeled “Antifa” (short for “anti-fascism”) as a domestic terrorist organization. As events dating back to January 6, 2021, demonstrate, those who hope the Trump administration will use the ATRC responsibly are expecting restraint from an administration that has almost never exercised it.
This context drives at the real problem with the ATRC. The danger posed by the ATRC is not the risk of misuse, the lack of sharply defined internal protocols or the untested nature of the statutory framework, it is the very nature of the ATRC itself. At its root, this is a domestic tribunal wherein the executive branch may deprive someone with constitutional rights of their liberty, relying on secret evidence. In the words of Justice Jackson,
“Security is like liberty, in that many are the crimes committed in its name… In the name of security, the police state justifies its arbitrary oppressions on evidence that is secret, because security might be prejudiced if it were brought to light in hearings. The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected.”
A bipartisan Congress granted the ATRC authority to the executive branch thirty years ago, and now the country—and the Constitution—are suffering the consequences.
* Disclosure: the author is on the legal team representing Mr. Vijandre.
