Trump has activated a secretive court for deporting ‘alien terrorists.’ Here’s what to know

By Tierney Sneed, CNN

(CNN) — A little-known court tasked with handling highly sensitive deportation cases against alleged alien terrorists has laid dormant since its 1996 creation, lacking even a website for tracking any proceedings before it.

But this month, the Alien Terrorist Removal Court sprung to life with a first-of-its-kind case filed by the Trump administration as it reaches for new deportation tactics.

For 30 years, a rotating set of judges assigned to the court have sat ready to hear any cases brought to it. Yet never before has the federal government thought it had a case that required the court – or was worth the risk of testing the constitutionality of its controversial procedures.

The court gives the government enormous latitude to keep secret – including from the person it is trying to deport – its reasons for believing an immigrant is a terrorist. And it closes off many of the avenues migrants typically have for contesting their removals.

Because, by design, most of what happens in the court is kept under wraps, little is known about the groundbreaking case the Justice Department filed in the court this month. But what is a public is an order from the ATRC judge who is overseeing it, indicating she was not persuaded by the government’s initial arguments and was requiring additional information to be submitted this week.

Here’s what to know about the secretive court and the new questions its use will raise.

The DOJ has avoided the court – until now

Since Congress set up the court in a sweeping bill called the Antiterrorism and Effective Death Penalty Act of 1996, questions have lingered about whether its procedures are constitutional, which could explain why previous administrations avoided even trying to bring a case before it.

Lawmakers set out the court’s secretive procedures as a way to protect state secrets that the Justice Department has determined would pose a national security risk if disclosed in open court.

Under the statute, the alleged “alien terrorists” – a term defined in law – are given very limited information about the evidence the government has gathered to justify their quick deportation. But those limits have brought accusations that the court violates the due process protections that the Fifth Amendment extends not just to citizens, but to lawful and even unlawful immigrants within US borders.

“The ATRC was the absolute last court of choice,” said Andrew Arthur, who oversaw terrorism cases as a top attorney at the Justice Department’s Immigration and Naturalization Service in the late 1990s and early 2000s.

During his time at the agency (which was shuttered with the creation of the Department of Homeland Security), the government determined that the conventional immigration proceedings provided sufficient protections for classified information in the national security-related cases it brought. In addition, Arthur noted that it was inevitable that once the ATRC was used, it would invite legal challenges that would force the Supreme Court to weigh in.

It’s not clear exactly why the calculus has changed, but the Trump administration has shown itself to be much more risk tolerant when it comes to pushing the legal envelope.

Arthur – now a fellow at the Center for Immigration Studies, which advocates for stricter immigration laws – speculated that the case could 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 cannot say in open court.”

“Alternatively, it’s because they want to establish the ATRC as a separate, slightly faster tribunal,” he said.

Unlike other flashy immigration moves by the administration, the Justice Department filed the new case quietly, with submissions under seal. It was first reported by Court Watch.

“This Department of Justice 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,” a DOJ spokesperson said in a statement to CNN.

Comparing the Trump administration’s turn to the court to the movie “Jurassic Park,” CNN legal analyst Steve Vladeck said that, “the velociraptors are testing the fences.”

“If they lose this case, it’s one person who, presumably, they can put in normal removal proceedings,” Vladeck said. “If they win, think of the precedent it creates.”

A fast-track process

Several aspects of the court make it, in theory, a faster process for deporting individuals and one where the individuals are deprived of many of the typical mechanisms for contesting their removals.

The law requires that the proceedings happen as “expeditiously as practicable.” It forecloses raising asylum claims and other arguments individuals can raise to head off deportations that are available to them under standard immigration law.

The appeal process is faster, too. Any appeal must be filed with the DC US Circuit Court of Appeals within 20 days of the ruling. Appeals of rulings in regular immigration proceedings are much slower and go through several other steps before reaching a federal appellate court.

But on the flip side, it is not a tool that the administration will be able to use to deport sweeping numbers of immigrants, legal experts say. The five judges who sit on the ATRC come from the Article III judicial branch, making them more independent arbiters than the execute branch immigration judges that typically preside over deportation proceedings.

With an alleged alien terrorist given little to work with to challenge the DOJ’s arguments, the law essentially “transfers the responsibility for that to the judge,” said Vladeck, a Georgetown Law professor who has previously written about the court. “The whole process was always intended for the judges to be extra skeptical, but I think the events of the last 18 months will make it even more likely that the judges will be.”

Given how the court operates, “it doesn’t really make sense for the administration to try to use this court for mass deportation,” said J. Wells Dixon, a senior staff attorney Center for Constitutional Rights who has litigated cases concerning immigration and national security.

Constitutional questions about the procedures

Establishing that this fast-track process is constitutional will take some time, observers expect. Even as the court remained unused in the decades after its creation, legal experts have long debated whether it offers immigrants adequate notice of the proceeding and the opportunity to respond.

“We’re really going to say they can be deported based on evidence they never see?” Vladeck said.

Once the government has determined using the normal deportation procedures would pose a national security risk, it can file an application with the court, entitling it to present the bulk of its case in camera and ex parte – meaning that only the judge sees the full slate of evidence and that information is withheld from the targeted individual.

“Throughout the ATRC’s statutory framework, Congress’s purpose for the court is evident: to provide a forum through which the U.S. attorney general may deport resident aliens who likely are terrorists without requiring the attorney general to sacrifice any state secrets in doing so,” a 2011 Duke law review note by John Dorsett Niles said.

Once the initial application is approved by the judge, the law requires a public hearing and lays out procedures for the alleged alien to have legal representation – but there are secrecy provisions that constrain the defense their attorneys can mount.

Legal permanent residents have the most rights under the court’s procedures. While they’re not entitled to review the government’s evidence itself, the law requires the appointment of a special attorney who could access that classified evidence and contest it on the immigrant’s behalf. But the special attorney cannot share the details of the evidence with their client, a hurdle to the defense they can provide.

Those with weaker ties to the US – unlawfully-present immigrants or documented immigrants with temporary status – can be provided highly generalized summaries of the evidence the government is presenting. However, the government doesn’t always have to provide even that generalized summary.

In addition to the due process questions the procedures raise, there are also elements of the law creating the court that are in tension with the Fourth Amendment’s prohibitions on unlawful searches, Dixon said.

The statute, for instance, says the alleged terrorist cannot seek the suppression of evidence against them that was obtained illegally by the government.

“When Congress creates new courts that are intended to deprive people of the benefits of regular Article III courts the only predicted, guaranteed outcome is years of additional litigation,” Dixon said.

Early skepticism of the Trump case

The Trump filed its application in July, according to the Federal Judicial Center’s webpage explaining the court. Besides the cover sheet of the DOJ’s application, the only public filing in the case is a July 16 order from Judge Joan Ericksen, who has been Chief Judge of the ATRC since 2025 and is presiding over the new case. It says there was a hearing before her that day.

Judges serve on the court in staggered 5-year terms and are assigned to it by Chief Justice John Roberts. The law requires that they each come from different circuits – meaning the regions each federal appeals court covers. Roberts did not respond to an inquiry submitted by CNN to the Supreme Court about other criteria he considers in the assignments.

Ericksen is a senior judge on the US District Court of Minnesota, which was ground zero for judicial tensions with the executive branch during the immigration enforcement surge in Minneapolis early this year.

The ATRC will sit in the federal courthouse building in Washington, DC, which hosts the federal district and appeals courts in DC, as well as the Foreign Intelligence Surveillance Court, but court officials could not provide details about the July 16 hearing.

Ericksen’s order hints that there were holes in the government’s case, vaguely referencing questions she had about how the individual’s alleged actions were connected to the laws the government was invoking.

She gave the administration until Wednesday to file additional information, noting that she believed “the government could benefit from the opportunity for more thoughtful consideration.”

As of Thursday morning, that filing was not on public website.

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