US Revives ‘Alien Terrorist’ Court, Setting the Stage for a Lengthy Legal Battle

The Trump administration faces an arduous legal battle and mounting due process questions as it activates a little-used court designed to hear deportation cases involving suspected non-citizen terrorists, Bloomberg Law reported.

The US Department of Justice’s National Security Division launched proceedings last week before the Alien Terrorist Removal Court (ATRC) and is expected to expand on its application in a sealed submission on Wednesday. It is the first case to come before the court since it was established in 1996.

Congress created the ATRC to conduct individual deportation hearings involving suspected terrorists where the evidence is considered so sensitive that its disclosure could threaten national security.

Successive administrations have refrained from using the court, partly because other legal mechanisms have been available to detain and monitor suspected terrorists, according to former national security officials from the Department of Justice (DOJ) and the Department of Homeland Security (DHS). Other concerns have included the court’s strict requirements for the use of classified evidence and the possibility that individuals could be deported without being allowed to examine the government’s case against them.

“This is essentially stepping into a car that has never run since it was released from the factory legislatively,” said Aram Gavoor, who served as Senior Counsel for National Security at the DOJ during President Donald Trump’s first term and the early part of Joe Biden’s administration.

“Because it’s a series of firsts, naturally the court is going to want to get it right,” Gavoor said.

Judges serving on the long-dormant court are expected to examine the Justice Department’s arguments closely as the administration continues to face broader judicial scrutiny over due process concerns relating to detained immigrants and other legal challenges to President Trump’s deportation agenda, former officials said.

DOJ spokesperson Emily Covington said the department intended to “use every tool available to bring alien terrorists to justice and remove them from the United States, including this court.”

Covington declined to comment further because the case remains under seal and its details are classified.

Dormant History

The administration’s decision to activate the court surprised former DOJ and DHS lawyers, who noted that the federal government has historically relied on alternative counter-terrorism and immigration laws.

When it was created, the ATRC was regarded as a major legislative counter-terrorism initiative. It was modelled on the Foreign Intelligence Surveillance Court, which reviews and authorises government applications for electronic surveillance and other national security measures.

The ATRC consists of five US district court judges appointed by the Chief Justice of the United States. All current members also serve on the Foreign Intelligence Surveillance Court.

Under federal law, the ATRC may approve a removal application if the government establishes that the individual falls within the legal definition of an “alien terrorist” and that pursuing deportation through another legal route would pose national security risks.

A 2004 report by a bipartisan national commission on terrorism found that DOJ lawyers had examined at least 100 potential cases for referral to the ATRC since its creation, but none proceeded.

During the Obama administration, the DOJ’s National Security Division reviewed whether the ATRC could be used to remove members of Al-Qaeda in Iraq living in the United States where proving terrorist links depended on classified evidence, said Chris Hardee, who served as the division’s Chief of Law and Policy from 2013 until last year.

“We concluded that it would not help in any case because, even if we could not pursue terrorism charges, there were criminal and immigration options that avoided relying on classified information, such as immigration fraud,” Hardee said.

He added that those alternatives were “far preferable” to relying on “a novel law in a specialised court that had never heard a case”.

The ATRC’s purpose also runs contrary to the broader philosophy of US counter-terrorism policy, said Thomas Warrick, a former senior DHS counter-terrorism official.

“If we had evidence that somebody was a terrorist, and especially if they’d committed terrorist acts against the United States, the whole purpose was to try to bring them here so they could be prosecuted, convicted and then put in jail,” said Warrick, now with the Atlantic Council.

Once an individual leaves the United States, “you lose oversight over what they’re doing or who their contacts are”, he said.

Logistical Challenges

The Trump administration also faces significant legal and procedural hurdles, particularly in relation to the handling of classified evidence, immigration law analysts said.

Under federal law, classified evidence may only be admitted if the ATRC concludes that the government’s unclassified summary provides sufficient information to enable the individual to prepare a defence.

If the court determines that the proposed summary is inadequate, it may still approve the application and proceed to a hearing, but only if it concludes that both the individual’s continued presence in the United States and disclosure of the summary would cause serious and irreparable harm to national security or to a person’s physical safety.

Lawful permanent residents are entitled to have a special attorney appointed to examine and challenge classified evidence on their behalf.

However, that safeguard does not automatically extend to other non-citizens, raising concerns that some individuals could face deportation without ever seeing the evidence against them, said Margy O’Herron, a former senior immigration adviser in the Biden administration who spent nearly two decades as a DOJ attorney.

As the Trump administration has increasingly relied on rarely used laws to advance its deportation agenda—including the Alien Enemies Act of 1798 — the activation of the ATRC “appears to be the latest weapon in its scorched-earth deportation strategy”, O’Herron said.

The court’s secretive nature also limits public and congressional oversight of the Justice Department, according to Elora Mukherjee, Director of Columbia Law School’s Immigrants’ Rights Clinic.

The only indication of the court’s thinking so far came in a 16 July order requesting additional submissions from the government. ATRC Chief Judge Joan Ericksen stated that 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 answers persuaded the Court that the Government could benefit from the opportunity for more thoughtful consideration,” Ericksen wrote.

 For any enquiries or information, contact ask@tlr.ae or call us on +971 52 644 3004. Follow The Law Reporters on WhatsApp Channels.