The Justice Department is now attempting to use a decades-old, secretive federal immigration court that has never been used in a test case that could allow it to expedite the deportation of suspected "alien terrorists."
The Alien Terrorist Removal Court was created by Congress in 1996 and signed into law by President Bill Clinton. It was set up to deport noncitizens who could not be removed by the traditional legal process because the information about their cases was classified and could not be made public for national security reasons.
The targets of noncitizen terrorist removal proceedings — including legal permanent residents — are not permitted to review the classified evidence against them, and unlike criminal proceedings, they are barred from legally challenging how the evidence was collected by the government.
Only the attorney general may approve "alien terrorist" removal applications by law, and one of five federal judges appointed to the Alien Terrorist Removal Court by the chief justice of the Supreme Court must decide whether to approve or deny the request. If the judge denies an application, the government can appeal to the Court of Appeals for the D.C. Circuit.
The Justice Department must show probable cause that the defendant is a noncitizen who meets the legal definition of an "alien terrorist" and poses a national security threat. Such filings are made largely under seal and are reviewed only by the judge and the government.
The defendant can hire an attorney, and if the person is a green card holder, the government can appoint an attorney with a security clearance.
But it's been a "zombie" court — it has existed solely on paper. That changed on July 15 when the Justice Department filed its first application seeking removal of an "alien terrorist."
The application, which was first reported by the independent news organization Court Watch, is almost entirely classified, and was filed before an official court website even existed.
The filing came on the same day Acting Attorney General Todd Blanche appeared before the Senate Judiciary Committee for his confirmation hearing to serve as attorney general.
The application was not made public until several days later when a new website for the court first went live, so lawmakers were unable to question him publicly about the Justice Department's decision to use the Alien Terrorist Removal Court.
A federal judge assigned to the court has since asked the department for more information to support its removal request, but the details of the case remain a mystery. If the government's application is approved, however, the court will be required to hold a public removal hearing.
"It's a precedent that no president has wanted to set," said Eric Lee, an immigration attorney with the law firm Lee & Godshall-Bennett.
"If the executive branch can detain someone with full constitutional rights who's in the United States, based on secret evidence and arguments that they're not allowed to hear, and evidence that might have been acquired through completely illegal means, those are Rubicons that have not been crossed in this country's history," he said.
The Justice Department declined to provide details about the case, noting it was entirely sealed, but a spokesperson said the department "will use every tool available to bring alien terrorists to justice and remove them from the United States, including this court established by Congress in 1996."
The decision to pursue a new and untested legal pathway for removal proceedings marks the latest move in a series of actions to carry out President Trump's anti-immigration policies.
The administration has formally designated known drug cartels and criminal gangs as foreign terrorist organizations, a label that can make it easier for the government to seek expedited removal proceedings.
Last year, the Justice Department tried a different approach to expediting removals for suspected terrorists, invoking the Alien Enemies Act of 1798 to try to deport suspected members of the Venezuelan criminal group known as Tren de Aragua.
It ran into some pushback when Chief Judge James Boasberg of the U.S. District Court for the District of Columbia opined that the best forum for addressing removal cases involving sensitive national security matters was the Alien Terrorist Removal Court.
The court has never been utilized by the government, but its structure is similar to one that is heavily used: the Foreign Intelligence Surveillance Court. This is the court that reviews applications for surveillance warrants and other national security investigative actions.
All five of the judges appointed to the Alien Terrorist Removal Court are also serving on the Foreign Intelligence Surveillance Court.
Although the evidentiary standards are significantly lower in comparison with the criminal justice system, some legal experts say that the judicial scrutiny that the Justice Department's applications would receive may help counterbalance some of those concerns.
"This is an Article III court created by statute for a special purpose. It is the highest standard of due process balancing," said Aram Gavoor, a former national security attorney at the Civil Division who previously published an article on the history of the Alien Terrorist Removal Court.
He said that concern about the lack of publicly available evidence regarding noncitizens targeted by the government "is counterbalanced by a cohort of the most serious judges we have on the bench."
"They are not going to cut corners at all," Gavoor said.
Some of that judicial counterbalancing is already beginning to show in the pending case.
Joan Ericksen, the chief judge for the Alien Terrorist Removal Court who is based in federal court in Minnesota, already responded to the Justice Department's removal application. She said she needs more information.
After a sealed July 16 hearing, she wrote that the court "had questions about the nexus that the government alleges between the actions of the respondent and the specific sections and subsections it invokes with respect to those actions." Ericksen asked the Justice Department to supplement the record.
It was not immediately apparent why the Justice Department has chosen to try to use the Alien Terrorist Removal Court for the first time now.
But efforts to find a test case in the past have failed, said Jeff Breinholt, a former Justice Department attorney who served as the counterterrorism deputy chief.
After the Alien Terrorist Removal Court was created by Congress during the Clinton administration, Breinholt served on a task force that helped look for a test case that the Justice Department could try filing with the court.
He said he ran into challenges. The FBI, for example, wanted its targets of criminal investigation to be prosecuted, not just deported.
"We traveled around the country, and consistently got shut out by the FBI. They didn't want to share their files. They didn't want to give up one of their targets to be removed," he recalled.
He also ran into concerns from senior DOJ officials who did not feel comfortable having then-Attorney General Janet Reno certify that the removal proceedings could not be brought through the conventional immigration courts.
At one point, he located a case in Florida and spent three months writing a memo to get it considered. But it went nowhere, and the defendant was eventually convicted.
"I felt after I wrote that memo and it got sort of tied up in the bureaucracy that there was no way this court would ever get off the ground," he said.
He added that even if the Justice Department is successful with its test case and obtains permission from the court to deport the person, there is still a chance that the person's home country could refuse to accept them.
"We've labeled them effectively as a terrorist, either through the immigration proceedings or the criminal proceedings," he said. "No country wants to take terrorists."
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