A little-known federal court that Congress established nearly three decades ago but never activated has finally heard its first case, putting a long-dormant national security tool under scrutiny.
The Alien Terrorist Removal Court, created under the Antiterrorism and Effective Death Penalty Act of 1996, was designed to allow the government to deport noncitizens suspected of terrorism without revealing classified intelligence in open immigration hearings. For 30 years, no administration used it. Last week, the Justice Department changed that.
Chief Judge Joan Ericksen of the U.S. District Court in Minnesota presided over the initial hearing on July 15, after the government filed a sealed application seeking removal of an unnamed individual. According to a court order posted on the tribunal's website, Ericksen pressed prosecutors on the link between the alleged conduct and the statute invoked, and directed them to submit additional facts and legal analysis. That supplemental filing is due this week.
The law sets up a two-stage process. First, a single judge reviews the application privately to determine probable cause. If that threshold is met, a public hearing follows, where the government must prove by a preponderance of the evidence that the individual meets the definition of an alien terrorist. That standard is lower than the criminal burden of beyond a reasonable doubt, but it still imposes a real evidentiary requirement.
What gives legal observers pause is that the statute explicitly allows the use of illegally obtained evidence, overriding normal federal rules of evidence. As one expert witness with decades of courtroom experience noted, changing the rules of what counts as proof can alter the outcome before any witness testifies.
This case arrives amid broader administration efforts to expedite removals. The White House has already invoked the Alien Enemies Act of 1798 to deport Venezuelan nationals accused of gang ties. In arguments over that case, Judge James Boasberg noted that Congress had already created a specialized forum for such removals—apparently prompting the Justice Department to test it.
Chief Judge Ericksen's initial skepticism is a healthy sign, according to legal analysts. A court that asks hard questions early is more likely to produce a record that withstands appeal, which is ultimately what will make removals stick. The alternative—thin filings and rubber-stamp approvals—would hand immigration lawyers a roadmap for challenges that could unravel the process later.
The outcome of this first case will determine whether the Alien Terrorist Removal Court becomes a serious national security tool or a cautionary tale about reaching for an untested law to solve a political problem. For now, all eyes are on the supplemental filing due this week, and whether the government can connect its allegations to the statute Judge Ericksen questioned.
