This court was created 30 years ago and never heard a case. Trump wants to change that

This Court Was Created 30 Years Ago — Now It’s Finally Hearing Cases

Earthguardiansonline.com – A little-known federal 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 three decades, 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.

Why This Court Remained Silent for Decades

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 can 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.” 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 limited, with decisions reviewable only by a three-judge panel of the court itself rather than the broader federal judiciary. Meanwhile, the judge overseeing this month’s case has already signaled she was not fully persuaded by the government’s initial arguments, requiring additional information to be submitted this week. As the case unfolds, it will test whether this long-dormant court can fulfill its original purpose — or whether its secretive procedures will prove too controversial to survive judicial scrutiny.