A Secret Deportation Court Sat Dormant for 30 Years. DOJ Just Used It.

The Justice Department this month filed the first-ever application to the Alien Terrorist Removal Court, a five-judge tribunal Congress created by statute in 1996 that had never been used in its three-decade existence. The court is designed for extraordinary immigration cases where standard deportation proceedings might expose classified evidence, and it can order the removal of noncitizens found to be “alien terrorists” along with their immediate family members [1]. Details of the July 15 application remain sealed, with even the cover sheet marked classified, and the case became publicly known only after reporters identified the sealed docket [2]. Chief Judge Joan N. Ericksen, a George W. Bush appointee, held a hearing on July 16 and subsequently declined to approve the initial filing, writing that government attorneys should have “the opportunity for more thoughtful consideration” before proceeding, and ordering supplemental filings due by July 22 [3].

Why It Sucks:

Trump Administration/DOJ

• Congress built this tool for exactly this case. Officials argue the court exists precisely to handle terrorism-linked deportations that would otherwise force the government to disclose classified intelligence sources and methods in open court [1].
• A dormant law isn’t an unusable one. The administration contends that the court sitting unused for 30 years reflects a lack of political will by prior administrations, not a defect in the law itself, and that activating it now is simply enforcing the statute Congress passed [1].
• Classified proceedings protect intelligence sources. Sealing the application, officials argue, is standard practice for any case touching classified material and doesn’t reflect an attempt to dodge accountability [2].

Immigration & Civil Liberties Attorneys

• A secret court with no public scrutiny. Advocates warn that a fully sealed docket, classified cover sheet, and untested procedures leave the public unable to verify whether due process is actually being followed [2].
• Family members can be swept up too. The law allows removal of a designated “alien terrorist’s” immediate family members as well, a provision civil liberties attorneys say punishes people for their relatives’ alleged conduct rather than their own [1].
• Thirty years unused should have been a warning sign. Attorneys argue that no administration, including hawkish ones, used this court for three decades because it raises serious constitutional due-process concerns that haven’t gone away just because it’s now convenient [1].

Legal & Judicial Process Observers

• Even a conservative-appointed judge pushed back. That Judge Ericksen, a Bush appointee, found the government’s first-ever application insufficiently developed suggests this isn’t a partisan objection but a basic rule-of-law concern about rushing an untested legal mechanism [3].
• There’s no precedent to guide anyone. With zero prior cases in the court’s history, judges, government attorneys, and the respondent’s counsel are all operating without established procedure, raising the odds of legal missteps in a case with life-altering stakes [1].
• A rejected first application undermines the rollout. Legal observers note that having the inaugural use of the court sent back for being insufficiently justified casts doubt on how carefully the process was prepared before going public [3].

Sources & Citations:

[1] Breitbart: First Ever: Trump Taps Clinton-Era Alien Terrorist Removal Court for Dangerous Migrant Deportations
[2] PBS News: Justice Department activates untested court for ‘alien terrorist’ deportations
[3] Just Security: The Alien Terrorist Removal Court’s First Case