Brendan Smialowski/Pool/AFP/Getty
Last week, the Trump administration filed the first-of-its-kind application with a 30-year-old removal court seeking to deport an immigrant as a suspected “alien terrorist.” The twist is that the court has been dormant for that entire time.
Congress created the special Alien Terrorist Removal Court (ATRC) in 1996 as part of the Antiterrorism and Effective Death Penalty Act. “From now on we can quickly expel foreigners who dare to come to America and support terrorist activities,” President Bill Clinton said when signing the bill into law.
The statute authorized the Chief Justice of the United States to assign five district court judges to review removal applications brought by the attorney general against alleged non-citizen “terrorists” in complex cases involving sensitive national security information.
In its 30 years of existence, that removal court has never received a removal application or conducted any proceedings, even if its five-member body has been fully staffed. Currently, all five judges are also part of the Foreign Intelligence Surveillance Court, another special court that reviews government applications for foreign intelligence surveillance warrants.
On July 15, the Justice Department filed a single-page application with the special court. Details about the case are sealed. But a judge’s order on the matter states that, following a hearing, the court “had questions about the nexus that the government alleges between the actions of the respondent and the specific sections and subsections it invokes with respect to those actions.”
The order, signed by the court’s presiding judge Joan N. Ericksen, says that the “Government could benefit from the opportunity for more thoughtful consideration.” The judge asked the administration to “provide any further factual or legal analysis to satisfy its statutory obligations” by Wednesday, July 22.
A judge may grant the attorney general’s application if they find probable cause that the government correctly identified the alleged “alien terrorist” and if their removal under regular proceedings would pose a risk to the national security of the United States. The person accused has the right to a public removal hearing, and the government has to provide an unclassified summary of the evidence. The judge’s decision can be appealed to the DC Circuit Court of Appeals.
“The fact that the Justice Department has initiated an ATRC proceeding is quite serious.”
“The fact that the Justice Department has initiated an ATRC proceeding is quite serious,” said Aram Gavoor, the associate dean for academic affairs at George Washington University’s law school who wrote a 2019 paper about the removal court’s inactivity. “It is 20 to 30 times harder to succeed in a court like this, especially the first time, than to bring perhaps the exact same case in administrative removal proceedings before an immigration judge.”
In that article, Gavoor and his co-author explained that the ATRC isn’t supposed to be a “high-volume court used for run-of-the-mill removal cases. Instead, it should be used only when the attorney general “determines that resorting to conventional removal proceedings would jeopardize national security.” With the passage of subsequent legislation that further limited the scope of potential cases to reach the ATRC, it has been relegated to a “veritable zombie court.”
Steve Vladeck, a constitutional law expert at Georgetown University, described the ATRC as “an academic curiosity” on his Substack. “I have at least some concerns about why the Trump administration is dusting it off now,” Vladeck wrote. He noted that the ATRC has guardrails that make it different from the regular removal process—including that it’s administered not by the Justice Department’s immigration judges but by Article III judges from different judicial courts.
Its mandate also presents some due process concerns because it allows the government to rely on classified evidence that might not be made available to the person it’s trying to deport. During legislative debates leading up to the Act’s passage, then-Senator Joe Biden (D-Del.) pointed out the risks of deporting people based on secret evidence, calling it “about as un-American as it gets.”
Vladeck appeared skeptical that the Trump administration could use this forgotten court to fully pursue its mass deportation goals. “If there’s something nefarious afoot,” he wrote, “it’s meaningfully smaller than that in scale.” Vladeck described it as “scalpel, not a bazooka.” Nonetheless, he argued, “the fact that the government had never previously used this process in the 30 years it’s been on the books speaks to the discomfort that just about everyone who’s ever looked carefully at the statute has come away with.”
Gavoor explained that the government has to eventually lay out what the case is about, even if most of the relevant information is kept classified. “We’ll find out maybe in the next couple weeks what comes to bear,” he said. “But it’s a first-time use of a court. It’s like getting into a car that came out of the factory 30 years ago but has never been started. There are all kinds of questions about how it’s going to work.”