The Department of Justice filed an application on July 15 to activate the Alien Terrorist Removal Court—a little-used judicial body created in 1996 but never actually employed—to authorize deportation proceedings against an unnamed foreign national suspected of terrorist ties. The move marks the first attempt to leverage a court that critics have called a “zombie” due to its decades of inactivity.
At a preliminary hearing the following day, Chief Judge Joan Ericksen raised concerns about whether the alleged conduct matched the statutory grounds cited in the application. She gave the government until July 22 to file supplemental materials, which it did.
The court was established under the Antiterrorism and Effective Death Penalty Act, with a conference report noting that alien terrorists “are able to exploit many of the substantive and procedural provisions available to all deportable aliens in order to delay their removal.” The special court allows the government to use classified evidence without full disclosure to the defendant, a key advantage over standard immigration proceedings.
According to the 9/11 Commission’s 2004 Terrorist Travel report, the court had been bypassed because subsequent immigration laws already permitted classified evidence in traditional deportation hearings, rendering the specialized body unnecessary. But the Trump administration has now revived interest in the dormant mechanism.
Immigration law expert Andrew R. Arthur, who handled alien terrorist cases as a government trial attorney, noted that ICE attorneys can currently submit classified information to immigration judges for ex parte review in closed settings. The administration issued formal guidelines on this practice last September. Chief U.S. District Judge James Boasberg in Washington, D.C., recently suggested using the Alien Terrorist Removal Court when questioning the administration’s reliance on the Alien Enemies Act, noting Congress had specifically designed this court for terrorism-based removals.
Hans von Spakovsky, a senior fellow at Advancing American Freedom, called prior administrations’ failure to use the court “a sign of negligence,” arguing it was established precisely to expedite the removal of alien terrorists.
The court operates under unique rules: the attorney general or deputy must certify probable cause that the subject is an alien terrorist and that ordinary immigration proceedings would endanger national security. The government must provide an unclassified summary of classified evidence sufficient for the alien to prepare a defense. A panel of five U.S. district judges, designated by the chief justice, hears the case. Unlike standard immigration proceedings, the government must only prove removability by a preponderance of the evidence, not clear and convincing evidence. Detention is mandatory pending appeal and removal.
Aliens in these proceedings have no access to ancillary relief—no asylum, withholding, cancellation, voluntary departure, or adjustment. Either party can appeal to the D.C. Circuit, which must rule within 60 days. While Congress included safeguards, the alien generally cannot see the classified evidence or its source, relying solely on the unclassified summary.
Critics argue the court should be reserved for cases involving top-secret information that cannot be adequately protected in standard removal hearings. The unauthorized release of such material could have severe consequences, making the specialized court a potentially powerful—and controversial—tool in the administration’s immigration enforcement arsenal.
