The Alien Terrorist Removal Court held a hearing on July 30 in Washington, the first in its existence [1]. Congress created it in 1996, and it sat for thirty years without a case [1].
A dormant court is an unusual thing to switch on. The statute that built this one does not simply move an immigration proceeding to a different room; it changes what the government has to prove, who may see the proof, and who is permitted to argue about it.
The authority sits at 8 U.S.C. 1531 and the sections that follow. The court is not a standing bench with judges of its own. "The Chief Justice of the United States shall publicly designate 5 district court judges from 5 of the United States judicial circuits" to hear removal cases under the subchapter [2]. They serve five-year terms, staggered so the panel never turns over at once, and one is chief judge, setting the court's rules and assigning cases [2]. The statute also requires a standing panel of security-cleared attorneys willing to represent lawful permanent residents on classified matters [2].
Getting into the court is stage one. The Attorney General or the Deputy Attorney General must personally certify an application, filed under seal, containing "a statement of the facts and circumstances relied on by the Department of Justice to establish probable cause" [3]. The judge grants it on finding probable cause that the person "has been correctly identified and is an alien terrorist present in the United States," and that removal under the ordinary subchapter "would pose a risk to the national security of the United States" [3]. The second finding is easy to skim past. The government must show not only that a person is removable, but that the normal immigration system cannot be used on them. The judge may consider classified information ex parte and in camera in ruling [3].
Stage two is the removal hearing, and the government's burden there is a preponderance of the evidence [4]. A criminal prosecution on the same allegations would require proof beyond a reasonable doubt. Nobody here is charged with a crime; the outcome is removal rather than imprisonment, and the standard tracks the civil consequence rather than the criminal-sounding accusation.
The classified-evidence machinery is the reason the court exists at all. "The judge shall examine, ex parte and in camera, any evidence for which the Attorney General determines that public disclosure would pose a risk to the national security of the United States" [4]. For that evidence, "the Government shall submit to the removal court an unclassified summary of the specific evidence that does not pose that risk" [4]. The judge approves the summary only on finding "that it is sufficient to enable the alien to prepare a defense" [4], with fifteen days to rule and fifteen more for the government to fix a rejected one [4]. A summary that still fails ends the hearing, unless the judge finds the person's continued presence would cause "serious and irreparable harm" to national security or to individuals [4].
The respondent this week is a lawful permanent resident [1], which triggers the statute's one concession. She gets a security-cleared special attorney who acts "by reviewing in camera the classified information on behalf of the alien, and by challenging through an in camera proceeding the veracity of the evidence contained in the classified information" [4]. The same provision forecloses the obvious next step. That attorney "shall not disclose the information to the alien or to any other attorney representing the alien" [4], and one who does "shall be subject to a fine under title 18, imprisoned for not less than 10 years nor more than 25 years, or both" [4].
Read that as a working arrangement. A lawyer the respondent did not choose reads the evidence against her, contests it in a room she is not in, and commits a felony carrying a ten-year minimum if he tells her what it says. Her own counsel argues from a summary a judge has certified as adequate. She has a "reasonable opportunity to examine the evidence" and to cross-examine witnesses [4], as to everything but the classified core.
Appeals run to the D.C. Circuit on a 20-day clock, with questions of law reviewed de novo and findings of fact set aside only for clear error [5]. A permanent resident denied a written summary receives automatic appellate review, and there the court reviews questions of fact de novo too [5].
At the hearing, Senior U.S. District Judge Joan Ericksen, of the District of Minnesota, presided, and Hayden O'Byrne appeared for the government [1]. Ericksen acknowledged the court's infrastructure is unfinished and warned the proceedings might be "inelegant," with the website and electronic filing system still under construction [1]. A statutory court has no docket software because nothing has ever been docketed in it.
The government's allegation is severe. Acting Attorney General Todd Blanche called the respondent "the matriarch of an ISIS-sympathizing family aiding in a plot to launch a mass casualty attack on American voters on Election Day" [1]. The Justice Department alleges she supported the Islamic State and worked with her son-in-law to radicalize family members [1]. Much of the evidence is classified, and federal agents arrested her earlier in the week [1].
Her court-appointed defender, Matthew Farley, is not litigating the allegation first. "This entire scheme is in violation of due process and is unconstitutional," he said [1].
The constitutional question has never been decided, for the plainest possible reason: a statute nobody uses generates no case law. The authority sat available through every administration since 1996, including the years after the September 11 attacks, and no government invoked it until this one [1]. Whatever the D.C. Circuit eventually says about the special attorney, the sufficiency of a summary, or a preponderance burden resting on evidence the respondent cannot read, it will be saying it for the first time, about a mechanism Congress wrote thirty years ago and left idling in federal law.
