Trump Administration Activates Never-before-used ‘alien Terrorist’ Deportation Court

The Trump administration has activated a secretive and never-before-used legal process to quickly deport foreign nationals deemed to be “alien terrorists” or their immediate family members.

The Justice Department submitted the first-ever application to the Alien Terrorist Removal Court — which has lain dormant since it was established by law in 1996 — with little notice earlier this week. The details of the July 15 application are sealed and an accompanying cover sheet indicates that the substance is classified.

The chief judge of the court, U.S. District Judge Joan Ericksen, held a sealed hearing on the matter Thursday and subsequently issued an order asking the government to make a more “thoughtful” application.

“The government could benefit from the opportunity for more thoughtful consideration,” the Minnesota-based George W. Bush appointee wrote in her one-page order. She noted that she had lingering questions about the actions taken by the Justice Department target and how they connect to the laws providing for the removal of “alien terrorists.” An updated response is due Wednesday.

The activation of the court is another indication of the Trump administration seeking to maximize its deportation authority in unprecedented ways. Though the court has never been used, its existence became an obstacle for the administration last year, when the administration sought to abruptly deport more than 100 Venezuelan nationals by labeling them members of Tren de Aragua, a transnational gang that Trump deemed a terrorist organization.

At the time, U.S. District Judge James Boasberg noted that the existence of the court seemed to suggest the administration could not simply deport people it labeled terrorists without the involvement of any court.

“In fact, Congress has an answer for us, doesn't it? Because they created the Alien Terrorist Removal Court,” he said. “You can always go to the ATRC, which would be a first, but that's what it's there for, right?”

Trump administration attorney Drew Ensign responded that just because the administration could use the court doesn’t mean Trump was prohibited from using a different power — the Alien Enemies Act — to deport people without court proceedings.

Under the law establishing the court, applications to remove an “alien terrorist” must be approved by the attorney general or deputy attorney general — in this case, acting Attorney General Todd Blanche — and backed by a statement of facts describing the reason for the designation and certifying that the person’s presence is a threat to national security.

The law includes a lengthy description of “terrorist activities” that would qualify a person for designation as an “alien terrorist,” including membership in a designated terrorist organization or a person who “endorses or espouses terrorist activity.” The criteria also includes the spouse or child of someone deemed an “alien terrorist.” And there’s a separate catch-all provision permitting the secretary of State to label someone an “alien terrorist” who “intends while in the United States to engage … in activities that could endanger the welfare, safety, or security of the United States.”

If a judge approves the Justice Department’s application, the target is then afforded a public hearing to challenge the determination. And any appeal of the ruling would go to the D.C. Circuit Court of Appeals.

Many legal scholars have speculated that the anti-terrorism court has never been used because of questions about whether its procedures allowing for the use of secret evidence that deportation targets would never see provide enough due process to conform with the Constitution.

Despite its disuse, the court has five judges picked from across the country by Supreme Court Chief Justice John Roberts, a similar setup to the Foreign Intelligence Surveillance Court, which oversees applications to monitor suspected agents of foreign countries.

The judges currently on the court include Ericksen, the court’s chief; Timothy DeGiusti, a George W. Bush appointee from Oklahoma; Karin Immergut, a Trump appointee from Oregon; Kenneth Karas, a George W. Bush appointee from New York; and Sara Lioi, a George W. Bush appointee from Ohio.

The new application was first discovered Saturday by Seamus Hughes, a journalist and researcher who runs CourtWatch.