One thing is certain: The administration is pulling out all the stops to fulfill President Donald Trump’s mass deportation objective.
That includes activating a never-before-used federal court.
The little-known federal court was established to handle highly sensitive deportation cases involving non-citizens accused of terrorism.
But has remained inactive since it was created in 1996, operating without even a public website to track its proceedings.
That changed this month, when the Trump administration filed the first case ever brought before the Alien Terrorist Removal Court as part of its effort to pursue new legal avenues for deportation.
For nearly three decades, a rotating panel of federal judges assigned to the court stood ready to hear cases, but until now the government had never invoked its authority.
The court’s procedures have never been tested in practice or subjected to constitutional review in the context of an actual case.
But then, another secret court – the FISA Court – is regularly used, and evidence presented during cases is not for public consumption. It has never been challenged as unconstitutional.
Under the law establishing the secret immigration court, the government has broad authority to withhold sensitive information—including, in some circumstances, the evidence supporting its claim that an immigrant is connected to terrorism, CNN reports.
The court’s procedures also provide fewer opportunities to challenge removal than are typically available in standard immigration proceedings.
Because the Alien Terrorist Removal Court operates under procedures designed to keep much of its work confidential, little is publicly known about the landmark case the Justice Department filed this month.
One document that has been made public, however, is an order from the judge overseeing the case indicating that she was not convinced by the government’s initial filing and directed prosecutors to submit additional information this week.
Since Congress created the court as part of the Antiterrorism and Effective Death Penalty Act of 1996, legal scholars and practitioners have questioned whether its procedures are consistent with constitutional due process protections.
Those concerns may help explain why previous administrations never sought to use the court.
Congress established the court’s confidential procedures to allow the government to rely on sensitive national security information that the Justice Department determined could not be disclosed in open court without risking the exposure of state secrets, CNN said.
Under the statute, individuals designated as “alien terrorists”—a term defined by federal law—receive only limited information about the evidence the government relies on to support their expedited removal.
Those restrictions have prompted critics to argue that the court’s procedures may violate the Fifth Amendment’s guarantee of due process, which applies not only to U.S. citizens but also to lawful and unlawful immigrants who are present within the United States.
“The ATRC was the absolute last court of choice,” Andrew Arthur, who managed terrorism cases as a leading attorney at the DOJ’s Immigration and Naturalization Service in the late 1990s and early 2000s, told CNN.
During his tenure at the agency—which was dissolved following the creation of the Department of Homeland Security—the government concluded that traditional immigration proceedings provided adequate safeguards for handling classified information in national security-related cases.
Arthur also noted that invoking the Alien Terrorist Removal Court would almost certainly trigger legal challenges that could ultimately require the U.S. Supreme Court to determine whether the court’s procedures are constitutional.
It is not clear why that assessment has changed, but the Trump administration has demonstrated a greater willingness than previous administrations to pursue novel legal strategies and test the boundaries of existing law.
Arthur, who is now a fellow at the Center for Immigration Studies, which advocates for restrictive immigration laws, said the case might involve an “individual who the government concludes has done something very bad, but the very bad thing that the person did is not something they can say in open court.”
“Alternatively, it’s because they want to establish the ATRC as a separate, slightly faster tribunal,” he told CNN.
