The court has existed for 30 years. There have been no cases because prosecution or ordinary immigration proceedings have been preferred.
A new immigration enforcement controversy is simmering as the Trump administration continues to push the boundaries of its authority in unprecedented ways.
The Justice Department has made the first application to the Alien Terrorist Removal Court (ATRC) in that tribunal’s 30-year history. The alien the government is trying to remove from the United States has not been identified. The chief judge of the court has held a hearing at which she heard legal arguments (no evidentiary hearing has been held to this point) and was apparently unimpressed by the DOJ’s presentation.
Let’s back up. As I’ve related over the years (most extensively in a memoir, Willful Blindness), my terrorist prosecution of the Blind Sheikh (Omar Abdel Rahman) and his jihadist cell in the New York metropolitan area, culminating in a lengthy 1995 trial, exposed significant weaknesses in federal counterterrorism law. (The trial centered on the 1993 World Trade Center bombing and a subsequent, thankfully foiled plot to bomb New York City landmarks.) While the post-9/11 PATRIOT Act gets most of historians’ attention, the most consequential legislation in this regard was the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). There were many vital counterterrorism improvements – e.g., criminal laws criminalizing terrorism conspiracies and material support to foreign terrorist organization, immigration laws facilitating the removal and exclusion of aliens connected to terrorist activities, etc.
There were also some innovations that were sufficiently dicey, constitutionally speaking, that they never really got out of the starting blocks. Among these is the ATRC (codified at Sections 1531 et seq., of Title 8 U.S. Code – the immigration laws).
In principle, the concept of special procedures for alien terrorist removal makes sense. There are sometimes foreign terrorists present in the United States who gravely imperil national security; yet, we may only be aware of why they are threatening because of top-secret intelligence that is too sensitive to expose in court (e.g., a highly placed informant in a terrorist organization who, if exposed as a witness at a public trial, would no longer be able to report vital intelligence to our government – and he and his family could be killed). Unlike American citizens, aliens do not have the full array of constitutional rights (they may have more or less protection depending on their immigration status).
Hence, the ATRC was created to give the government a vehicle to remove such an alien from the U.S. – rather than prosecute him in court or deport him under ordinary removal processes. It provides for the DOJ to seek removal ex parte (without the alien’s presence) by applying to a specialized court (the ATRC), and the application can include classified information. If the judge concludes that the government has shown probable cause that the alien is a terrorist, an order of removal is to be issued. If an order is issued and the government seeks to execute it, the alien may appeal to the D.C. Circuit; and the DOJ may appeal to the same circuit court should the ATRC decline to issue a removal order upon request.
The concept may work in theory (there are obvious constitutional due process questions, especially about the secret evidence provisions), but it has never worked in practice. That’s mainly because, to issue a removal order, the government has to show, and the judge has to find, that proceeding by means other than the ATRC would pose an undue risk to national security. In general, if the government has strong enough evidence that an alien is a terrorist, it prosecutes – it’s far better for national security to incarcerate a terrorist for decades than to deport him to a place where he is at liberty to continue plotting against the United States. On the other hand, if the government lacks sufficient evidence to prosecute criminally, the regular immigration laws have strong provisions for removing and excluding suspected terrorists; those provisions have been successfully used without triggering the constitutional battles that would ensue over ATRC proceedings. Hence, the ATRC has never been used, until now.
Nevertheless, the court has existed since 1996. There is no physical courthouse where the ATRC meets, but consistent with Section 1532, the sitting Chief Justice of the Supreme Court (the late William Rehnquist between 1996 and 2005, and John Roberts ever since) has continually appointed five federal district judges to the tribunal, drawn from districts in different circuits, for renewable five-year terms.
The current chief judge of the ATRC is Judge Joan N. Ericksen, an appointee of President George W. Bush to the district court in Minnesota (she’s now in senior status there), whom Chief Justice Roberts also assigned to the Foreign Intelligence Surveillance Court – which is to say, she’s steeped in counterterrorism and intelligence law even though there have been no ATRC cases.
Judge Ericksen held a hearing on July 16 regarding the government’s application to remove the unidentified alien on the basis of terrorist activity. In a brief order, she reports that she heard only attorney argument, not testimony. She elaborates that she has pressed “questions about the nexus that the government alleges between the actions of the respondent [i.e., the alien] and the specific sections and subsections [of the alien terrorist removal provisions] it invokes with respect to those actions.” Diplomatically, the judge adds that the prosecutors’ “answers persuaded the Court that the Government could benefit from the opportunity for more thoughtful consideration[,]” which includes addressing the need to “satisfy its statutory obligations.” This suggests that the DOJ’s presentation, to this point, comes up short on (a) proof that the alien is a terrorist, and (b) an explanation of why other legal means – e.g., prosecution or ordinary removal proceedings – would not fulfill the government’s needs consistent with reasonable national security concerns.
Judge Ericksen gave the government until July 22 (next Tuesday) to file a supplementary submission. The order suggests that a request for addition time would be granted if requested.
Given the scant public record, it’s impossible to say with confidence why the Trump administration decided this was a good ATRC test case, and what Judge Ericksen’s precise concerns are. I have detailed a few times, in connection with President Trump’s use of lethal force against suspected drug traffickers in the Caribbean, that the administration has sought to designate foreign organizations as terrorist organizations even though drug trafficking does not qualify as terrorist activity under federal law. But there’s no telling if the problem (or a problem) is an extravagant construction of what constitutes terrorism.
We’ll have to wait for further developments, including any ruling on whatever supplemental information the DOJ submits (the submission will not be public).