The US Alien Terrorist Removal Court (ATRC) on Sept. 11 ordered the deportation of an Afghan woman, after she reached an agreement with the Department of Justice (DoJ), waiving her right to appeal. Nazira Haji Zada, accused of assisting her son and son-in-law in planning a foiled 2024 terror plot, admitted that she was an "alien terrorist" as part of the deal. The order marked the first-ever use of the secretive and controversial ATRC.

Congress created the ATRC through the Antiterrorism & Effective Death Penalty Act of 1996, a response to the Oklahoma City bombing of 1995. According to the Brennan Center for Justice, the ATRC is a specialized court for deporting immigrants suspected of engaging in terrorist activities.

Congress passed the measure out of concerns that standard deportation procedures would not conceal classified evidence. Congress further tightened protections for classified evidence by limiting immigrants' access to the government's evidence against them in a omnibus consolidated appropriations act, Public Law 104–208, later in 1996.

Zada's deportation marks the first use of the ATRC in its 30 years of existence. The Chief Justice of the US Supreme Court selects the five ATRC judges from five different judicial circuits. All of the judges also serve on the Foreign Intelligence Surveillance Court. Both bodies share a courthouse with the US Court of Appeals for the District of Columbia Circuit, which may hear appeals of their rulings.

A case reaches the ATRC in two steps. In the first, DoJ applies, showing probable cause that a person is engaged in "terrorist activity" as defined by Section 212(a)(3)(B) of the Immigration & Nationality Act (INA). The definition is sufficiently broad to include children and spouses found to have provided any kind of assistance, such as transportation or housing. A "terrorist organization" is defined as any group of two or more people that have used a weapon or vehicle to attack persons or property. In the second step, an application may reach a removal hearing, which uses a higher evidentiary standard and in which the immigrant may challenge the allegation.

However, the court provides immigrants with substantially fewer protections than defendants in regular criminal cases. The standard of proof is only a "preponderance of the evidence" rather than "beyond a reasonable doubt." The Federal Rules of Evidence do not apply at the ATRC, and defendants may not object to "the fruits of electronic surveillance and unconsented physical searches." A single judge hears the case and there is no right to trial by jury.

The immigrant does not have the right to confront all of the evidence, and the DoJ does not have to disclose or even summarize the classified evidence. The Brennan Center notes that this restriction has not been widely tested, and that some courts have held that secret evidence may not be used to justify immigrant detentions.

In a press release, Attorney General Todd Blanche called the case "a win for national security and the rule of law." The press release added that she had "plotted with members of her family to carry out an ISIS-inspired attack on American soil."

Zada's son, Abdullah Haji Zada, and son-in-law, Nasir Ahmad Tawhedi, were convicted in a supposed scheme to disrupt the 2024 elections with armed attacks in Oklahoma. However, the firearms to be used in the scheme were purchased from an undercover FBI operative, and it is not clear that they had any actual contact with ISIS.

Zada, who speaks no English, came to the US as a lawful permanent resident in 2018, and lived in the Dallas-Fort Worth area. Her husband had been employed at Bagram Air Base, the last major US base in Afghanistan until it was evacuated in 2021, from 2009 to 2016. She was deported to Afghanistan immediately upon issuance of the order.

From JURIST, Sept. 13. Used with permission.

See also our feature, US Terrorism Court: No Torture Safeguard.