{"id":408,"date":"2026-08-03T17:39:16","date_gmt":"2026-08-03T17:39:16","guid":{"rendered":"https:\/\/nationalconsumerreportss.com\/?p=408"},"modified":"2026-08-03T17:39:16","modified_gmt":"2026-08-03T17:39:16","slug":"dispatch-setting-up-secret-courts","status":"publish","type":"post","link":"https:\/\/nationalconsumerreportss.com\/?p=408","title":{"rendered":"Dispatch: Setting Up Secret Courts"},"content":{"rendered":"
\n

Courts don\u2019t just pop up out of nowhere. Their very existence is written into law, meticulously recorded in transcripts and filings, and each decision is etched into caselaw\u2014the closest an institution can come to being set in stone.<\/p>\n

Read more If AI Outputs Aren\u2019t Speech, Who Has to Prove They\u2019re Human?<\/a><\/p>\n

And then one does. Late into the evening on Friday, July 17, a hastily created website for the Alien Terrorist Removal Court (ATRC) appears, sending us journalists scrambling to figure out what a court we never had heard of does.<\/p>\n

Three documents trickle onto the website, offering few clues. The crux is that the court, established in 1996, has never received a case until now, when officials at the Justice Department\u2019s National Security Division deemed it imperative enough to public safety to ask a judge to remove a noncitizen suspected of terrorist ties from the United States.<\/p>\n

But answers for who the noncitizen in question is, why they are a suspected terrorist, and whether the judge will allow the government to put forward their case\u2014in a court that had lain dormant for 30 years\u2014are sparse. The court\u2019s secretive nature, allowing the government to introduce classified and warrantless evidence without even the respondent\u2019s knowledge, will keep most answers out of reach.<\/p>\n

Twelve days pass. It\u2019s 10 pm on July 29, and I\u2019m sitting at a Middle Eastern-style cocktail bar in Washington, D.C. My phone pings with an unfinished text from Court Watch\u2019s Seamus Hughes: \u201cSo.\u201d<\/p>\n

I already know what it\u2019s about. I persistently refresh the ATRC website until the page populates with a dozen more docket entries, including an order scheduling an initial hearing for the very next day at the E. Barrett Prettyman U.S. Courthouse.<\/p>\n

On the morning of July 30, I am on my way to the ATRC\u2019s first-ever public hearing. I get to the courthouse early, expecting the proceedings\u2019 historic nature to lead to a packed courtroom. I\u2019m fourth in line for a seat, behind NPR\u2019s Carrie Johnson, a law clerk, and an NBC intern. Lawfare<\/em>\u2019s Roger Parloff joins me several minutes later as the fifth. Soon, a pool of D.C.\u2019s shrinking ranks of legal journalists forms, trading questions about the process for what happens next and why, after all these years, the Justice Department decided now was the time to give life to the ATRC.<\/p>\n

The hallway outside the courtroom fills up. At the other end of the hallway, away from the press and the law clerks, a group that\u2019s just as large circles\u2014the government. It\u2019s not only the national security attorneys tasked with the case and their investigators, paralegals, and interns, but a number of other officials, likely curious about this obscure slice of legal history.<\/p>\n

The courtroom doors open a few minutes before 11 am for the attorneys. The press dutifully waits their turn to be ushered in. When the government\u2019s attorneys enter, the two or three dozen other officials try to sneak in behind, creating a traffic jam in the hallway. A clerk turns them away.<\/p>\n

We\u2019re finally let in.<\/p>\n

\u201cAll rise. The honorable Alien Terrorist Removal Court is now in session,\u201d a clerk says. Chief Judge Joan Ericksen, whose day job is as a senior judge in the District of Minnesota, welcomes us warmly. She has short white hair, a green collar that pops up above her robe, and a kind Minnesota demeanor that almost distracts from the ominous nature of the proceedings. Ericksen tells the clerk, \u201cYou\u2019re going to call the case. The first case this court has ever heard.\u201d<\/p>\n

Two deputies with the U.S. Marshals Service escort the respondent, Nazira Haji Zada, in and take up seats directly behind her. In civilian clothes and a beige hijab, the 47-year-old Haji Zada\u2014an Afghan citizen\u2014sits at a table with her counsel. An interpreter begins to translate in Dari, an official language of Afghanistan. Haji Zada\u2019s face looks solemn.<\/p>\n

Chief Judge Ericksen asks the government and Haji Zada\u2019s attorneys to introduce themselves. Acting Deputy Assistant Attorney General for National Security Hayden O\u2019Byrne, Anna Donnell, Evan Schultz, and Larry Schneider stand up on behalf of the Justice Department. Haji Zada\u2019s attorneys are Matthew Farley and Mary Petras of the Federal Public Defender\u2019s Office for D.C.<\/p>\n

As Judge Ericksen begins to speak, multiple technical problems occur, sending a loud dial tone ringing through the courtroom. She looks frustrated but only for a split second. The clerk gets the tech under control.<\/p>\n

Speaking slowly for the interpreter, she addresses Haji Zada, \u201cThis is your first appearance in this matter, is that correct?\u201d Haji Zada nods her head. \u201cThis is not a criminal matter. This is a civil matter,\u201d Ericksen continues, referencing the ATRC\u2019s statute. She confirms Haji Zada has legal immigration status as a lawful permanent resident.<\/p>\n

The judge outlines the brief history of the case, beginning with the government\u2019s application to initiate removal proceedings against Haji Zada on July 15 and ending with her arrest by the FBI in Fort Worth, Texas, on Tuesday, July 28. She tells Haji Zada that the government is seeking to deport her to Afghanistan.<\/p>\n

Reading from prepared remarks, Judge Ericksen says, \u201cThis is the court\u2019s first case, and the court is in the early stage of implementing procedures,\u201d warning that there \u201cmay be moments of ineloquence.\u201d She then calls for O\u2019Byrne, the government\u2019s lead counsel, to approach the lectern to deliver a \u201cplain English\u201d unclassified summary of the allegations against Haji Zada.<\/p>\n

O\u2019Byrne, who up until January 2025 served as an assistant U.S. attorney in the Southern District of Florida, speaks into the microphone with a low voice. I think I must be having trouble hearing because I\u2019m sitting in the back of the courtroom, but soon Ericksen asks him to speak up. He does for a moment, and then his voice returns to semi-audible.<\/p>\n

O\u2019Byrne is terse in his description of the allegations, stating that Haji Zada is accused of being an \u201calien terrorist.\u201d Ericksen asks if he can elaborate. O\u2019Byrne restates almost the same line about the Justice Department determining that Haji Zada is an \u201calien terrorist.\u201d Unsatisfied, Judge Ericksen asks him a third time to tell Haji Zada about the allegations she faces, this time adding \u201cin plain English.\u201d She specifically references the that appeared on the ATRC website the night before.<\/p>\n

He reads the unclassified summary nearly verbatim, alleging Haji Zada has pledged her loyalty to the Islamic State. The government believes she \u201csupported\u201d a conspiracy to conduct a mass attack on Election Day 2024 with her son and son-in-law, who were arrested in October 2024. (Haji Zada\u2019s son is serving a maximum 15-year sentence after pleading guilty to the plot.)<\/p>\n

O\u2019Byrne also alleges that Haji Zada has gone to great lengths to \u201cindoctrinate\u201d her children into ISIS ideology and relocate them to ISIS-controlled territory. He says Haji Zada successfully hid this brainwashing and the plan to flee to ISIS-controlled lands from her husband, an Afghan man who previously worked at Bagram Airbase, when it was the U.S.\u2019s largest military base in Afghanistan.<\/p>\n

Read more The Week That Was<\/a><\/p>\n

Judge Ericksen leaves it at that\u2014though the details about how Haji Zada supported a plot that was foiled almost two years ago, or her efforts to support ISIS, are murky at best. She moves on to ask whether O\u2019Byrne knows if Afghanistan is a mandatory reporting country, meaning the government has to notify its consulate of Haji Zada\u2019s arrest.<\/p>\n

O\u2019Byrne, who has six months on the job as the National Security Division\u2019s third-in-command, says he is not sure. None of the other national security prosecutors chime in, either. Farley, Haji Zada\u2019s attorney, also tells Judge Ericksen he does not know. The judge reads both statements of law to Haji Zada: in case Afghanistan is a mandatory reporting country, or, alternatively, that Haji Zada may request that the Afghan government be notified of her arrest.<\/p>\n

Judge Ericksen then gets down to business of how the ATRC will proceed. She instructs the Justice Department to submit a summary to the court so that she can rule on its adequacy. If Judge Ericksen deems the summary an adequate description of the allegations against Haji Zada, without revealing the classified information, the removal case may proceed.<\/p>\n

But, if Judge Ericksen finds it inadequate, the case will end, barring a successful government appeal to the U.S. Court of Appeals for the District of Columbia Circuit. (It was unclear whether the unclassified summary O\u2019Byrne read from is the same summary that the government intends to present for Judge Ericksen\u2019s approval.)<\/p>\n

Regarding the classified evidence in the case, Judge Ericksen tells the parties she plans to \u201cproceed with a CIPA model in mind,\u201d referring to the court\u2019s typical process under the Classified Information Procedures Act for handling classified information in criminal proceedings, which she notes has \u201cquite a robust history.\u201d<\/p>\n

Just before he sits back down, O\u2019Byrne asks how the court wishes to number the documents on the docket. This leads Judge Ericksen to launch into a description of how clerks are starting to build an electronic filing system for the ATRC, similar to other courts around the country. One difference\u2014to the glee of much of the press corps\u2014is that ATRC filings will not cost money to access, a break from norms under PACER, the federal court record database.<\/p>\n

Next, federal defender Farley approaches the lectern on behalf of Haji Zada. Right off the bat, he moves to dismiss the hearing and release Haji Zada, and raises a broader objection to the court, calling the ATRC\u2019s \u201clack of process and due process woefully inadequate.\u201d Farley says the ATRC functions as \u201ca runaround of bringing a criminal case\u201d in order \u201cto lower the standard of proof.\u201d He also indicates that Haji Zada\u2019s attorneys will object to the adequacy of the unclassified summary, which consists of \u201cjust a few paragraphs.\u201d<\/p>\n

My ears perk up when Farley mentions that the Justice Department has indicated the government will not share the classified materials with Haji Zada\u2019s counsel. According to the ATRC statute, as a lawful permanent resident, Haji Zada is entitled to an attorney with a security clearance who can access and contest the classified information on her behalf. (An attorney who discloses such information to their client in ATRC proceedings faces a mandatory minimum 10-year prison sentence, per the ATRC statute.)<\/p>\n

Continuing, Farley references the law reviews published about the ATRC and tells the court that Haji Zada\u2019s attorneys have serious misgivings about the ATRC\u2019s constitutionality, citing the First, Fourth, Fifth, and Sixth Amendments. Judge Ericksen chimes in with an earnest smile, \u201cI\u2019ve probably read the same law review articles as you. There aren\u2019t that many.\u201d<\/p>\n

The judge denies Farley\u2019s motion to release Haji Zada and suggests the court can hear his constitutional objections to the ATRC as part of the detention hearing. Farley replies that the federal defender\u2019s office needs a ruling about access to the classified materials in order to prepare for the detention hearing.<\/p>\n

Then, O\u2019Byrne points out that the ATRC\u2019s statute allows for the presiding judge to review classified materials without the noncitizen\u2019s counsel present and weigh it in their determination whether to remove a suspected terrorist from the United States. He finishes, stating, \u201cWe\u2019re not relying entirely on classified information,\u201d and offers to turn over 177 pages of discovery to Haji Zada\u2019s counsel at the hearing (a very low number compared to discovery in most national security prosecutions). O\u2019Byrne, however, doesn\u2019t address whether the government will allow Haji Zada\u2019s attorneys to access the classified information (while keeping that information from Haji Zada herself).<\/p>\n

The judge tells O\u2019Byrne that she expects the government to give a specific rationale why each piece of classified information needs to be protected. Judge Ericksen warns that she won\u2019t allow a unilateral classified mandate to conceal information from Haji Zada.<\/p>\n

Ericksen pulls out the ATRC statute, 8 U.S.C. \u00a7 1534, sending the Justice Department officials and Haji Zada\u2019s attorneys to their U.S. Code books. She says that the respondent\u2019s cleared counsel has a right to access classified materials.<\/p>\n

Judge Ericksen asks whether Haji Zada\u2019s attorneys have received clearance. One answers affirmatively, while the other is still in the process. She formally appoints the federal defender\u2019s office to represent Haji Zada.<\/p>\n

After this, O\u2019Byrne specifically points to a subsection in the ATRC statute that allows the removal hearing to proceed without an unclassified summary if the judge deems that the noncitizen\u2019s presence in the U.S. and the provision of the summary would both \u201clikely cause serious and irreparable harm to the national security or death or serious bodily injury.\u201d I feel lost as to how this would impact the Haji Zada\u2019s attorneys\u2019 access to classified discovery.<\/p>\n

Apparently, I\u2019m not alone. Judge Ericksen tells the Justice Department to file a brief on their argument. She says her presumption will be that the federal defender\u2019s office will be able to review classified evidence and will need a \u201cpretty strong reason\u201d to change her mind.<\/p>\n

Finally, Haji Zada, who sat motionless throughout the hearing, except to nod or shake her head to the interpreter\u2019s words, accepts the federal defender\u2019s office as her counsel. Judge Ericksen and the attorneys retire to her chambers to schedule the detention hearing for Aug. 11.<\/p>\n

On the way out, members of the press exchange glances, feeling just as bewildered as before. My impression is that we weren\u2019t the only ones.<\/p>\n

Read more How Trump v. Slaughter Strengthens the Case for Third-Party AI Regulation<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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