The Justice Department’s decision last week to activate a terrorist deportation court for the first time in its 30-year existence has surprised the judges who once sat on this dormant tribunal — and long wondered what hearings would even look like.
The Alien Terrorist Removal Court is a little-known and untested venue for the government to deal with terrorism suspects in the U.S. with something other than regular criminal charges. For suspects abroad, the U.S. has used spies, drones and commandos to hunt down those accused of terrorism — to either kill them or drag them back to face charges in the U.S.
Why deport a terrorist? It’s a question that still confounds Alfred Wolin, 93, a retired federal judge who served on the ATRC for eight years and is the only jurist still alive of the five who were initially assigned to the special court in 1996.
“I don’t really know what the assignment was going to be in its totality,” he told NOTUS from his home in New Jersey. “And I’m not even sure to whom we would report.”
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Wolin never met with his fellow ATRC judges. Plans to convene and discuss how the court would operate were scrapped. And he distinctly remembers being told by a high-ranking court official that the special tribunal never got any cases because “the FBI blocked any cases being sent to us.”
“I have no idea why,” Wolin said. “As far as I was concerned, it died.”
Last week, the DOJ revived it, filing its first application to the court — a process shrouded in mystery that doesn’t even include the name of the person it seeks to deport or why. Prosecutors with its National Security Division presented the case directly to Judge Joan Ericksen, a U.S. District judge in Minnesota who also serves as the ATRC’s chief judge.
The only public part of the July 15 application is a cover page that makes reference to the classified nature of the case, first reported by Court Watch. Prosecutors presented their arguments to Ericksen behind closed doors on July 16, and she responded with a follow-up order demanding more information.
“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,” she wrote.
The judge gave prosecutors until this Wednesday to include additional “factual or legal analysis to satisfy its statutory obligations” in its application, but the court website didn’t show any additional public filings on Thursday morning.
Congress created the court with 1996’s Antiterrorism and Effective Death Penalty Act, a Republican-led pushback on the Clinton administration that limited death row appeals and made it easier to deport immigrants convicted of crimes. Then-Rep. Chuck Schumer (D-New York) called it a “better-than-nothing anti-terrorism bill” that he would “sadly and reluctantly” support. President Bill Clinton signed it into law.
Then-Sen. Bob Smith, a New Hampshire Republican, tucked the provision for a new, secret deportation court into the bill. Smith said it would be modeled after the Foreign Intelligence Surveillance Act court, which considers security agency requests for surveillance warrants against foreigners inside the United States.
Warning of a growing threat of terrorism, Smith envisioned a legal process that would allow prosecutors to withhold classified evidence from an immigrant accused of terrorism.
He also noted the bill was passed “in memory of the one-year anniversary of the Oklahoma City bombings,” despite the FBI calling it “the deadliest act of homegrown terrorism in U.S. history.” The bombing was planned and perpetrated by Timothy McVeigh, a U.S. Army veteran who joined the Ku Klux Klan and counted the racist book “The Turner Diaries” among his favorite literature.
“Far too often, deporting dangerous terrorists is complicated and difficult for our law enforcement officials. The bill we passed tonight would alleviate some of the problems with this process,” Smith said in a press release at the time.
Smith is now a member of the Trump’s administration’s Homeland Security Advisory Council. He did not respond to a request for comment.
During congressional debate over the bill, then-Sen. Joe Biden criticized what he called “a secret hearing, using secret evidence.” He envisioned a defendant saying, “Hey, tell me who said I was a terrorist. How do you know that?” only to have the government respond, “Oh, no, we can’t tell you. We know you did it, and we can’t tell you how we know.”
Part of the new law was immediately used in the summer of 1996 to crack down on immigrants, with the Supreme Court ordering the 9th U.S. Circuit Court of Appeals to reconsider its postponement of an Egyptian man’s deportation over selling $100 worth of hashish.
But the Clinton DOJ refused to file a terrorist deportation case in the special court, prompting then-Sen. Orrin Hatch to write to Vice President Al Gore later that year to complain that not “a single terrorist alien [has] been deported pursuant to the terrorist alien removal provisions.” The letter cited the Centennial Olympic Park bombing in Atlanta that summer, which investigators later found was carried out not by an immigrant but by U.S. citizen Eric Rudolph, an anti-abortion zealot.
Wolin, the retired judge, recalled how he got put on the new tribunal. It all started at the Greenbrier resort in West Virginia, where federal judges had gathered to mingle. Chief Justice William Rehnquist needed a tennis partner and asked Wolin to play with him against U.S. Judge H. Lee Sarokin of the 3rd Circuit Court of Appeals and a second appellate judge in Pennsylvania.
“Rehnquist was not what I would call an accomplished tennis player,” Wolin remembered with a chuckle. “I think he was relying on me.”
A week or so after the game, the chief justice leaned on him again. A Supreme Court administrative assistant called Wolin, then a trial judge in New Jersey, to inform him that the chief justice wanted to appoint him to something called the Alien Terrorist Removal Court.
“It sounded like something I would be interested in doing, but we never received a case,” said Wolin, who still keeps a 2002 letter signed by Rehnquist in a plaque hanging on a wall in his basement.
Liam O’Grady, another retired federal judge who served on the special court from 2021 to 2023, said he never held any meetings with fellow judges on this assignment either. He said the current case’s true nature is anyone’s guess.
O’Grady acknowledged that it would make little sense for the U.S. government not to imprison a person deemed a true danger to the American public — unless, that is, some spy agency has concluded that convicting the person would require exposing sensitive information or espionage tactics in open court.
However, the U.S. justice system already has an established process for handling this kind of volatile evidence: the Classified Information Procedures Act of 1980, which allows defense lawyers with security clearances to build their cases while keeping their clients largely in the dark. This process has been used in cases against government employees accused of selling military secrets, foreign secret agents and even President Donald Trump when he was charged with retaining classified documents at Mar-a-Lago.
So why go this route for the first time in 30 years? O’Grady reasoned the DOJ might head to the Alien Terrorist Removal Court if the evidence is so sensitive that the government isn’t even willing to share it with a vetted defense lawyer — or expose vague summaries of it in open court. The ATRC permits the government to present evidence directly to a judge without the typical due process that allows a defendant to understand the nature of the charges against them.
According to a 2015 legal paper written by Jonathan H. Yu, then an adviser to DOJ immigration lawyers, lawful permanent residents accused in this special court get an extra layer of protection via a panel of vetted attorneys who may review the evidence in the judge’s chambers to “challenge the veracity of that classified information.”
A 2008 legal paper written by a Duke University law student noted that the court’s procedure “does not implicate the Sixth Amendment right to confront one’s accuser because ATRC proceedings are immigration rather than criminal proceedings” and the accused are non-citizens.
A provision in the law says the accused person doesn’t even have the right to challenge evidence that was illegally obtained.
American law professors David Cole and Stephen Vladeck decried these exceptions to widely accepted civil rights in an essay included in a 2014 legal compendium, “Reasoning Rights: Comparative Judicial Engagement.”
“The right to confront the evidence used to deprive a person of his liberty is essential to fundamental (and indeed, constitutional) notions of fairness,” Cole and Vladeck wrote.
They noted that Canada’s supreme court in 2007 rejected that government’s attempt to deport several men accused of Islamist extremism while relying on a secretive court and hidden evidence. (One of the men is an imam named Adil Charkaoui who would give a speech in 2023 calling for Allah to “kill the enemies of the people of Gaza,” which led to an investigation by the Royal Canadian Mounted Police but no criminal charges.)
The Canadian supreme court decision led the country to adopt a system in which defendants are still kept in the dark but third-party “cleared counsel” can see secret evidence and make legal challenges on their behalf.
That experience could serve as a warning as the United States begins to employ its secret deportation court for the first time.
O’Grady, who was a federal district judge in Virginia, suspects that the DOJ never filed a terrorist deportation case until now because “it’s out of sight, out of mind, and it’s never been used because no one knew how to use it.”
But he said he recognizes concerns over the Trump administration’s attempt to expand the definition of “terrorism” with two executive orders that aim to designate anti-fascists as a “domestic terrorist organization” and direct law enforcement to combat those who hold views considered to display “anti-Americanism,” “anti-capitalism” and “extremism on migration, race, and gender.”
“It’s not an idle thought. This administration has looked for many different ways to aggressively respond to what it believes are big immigration problems, and they believe they have a mandate from the public to be aggressive,” O’Grady said. “So, are they curious as to whether this is another tool they can use? That may be part of the inspiration, but again, who knows. We’re going to have to see what shakes out.”
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