Think Immigration: Trump Moves to Weaponize Decades-Old “Alien Terrorist Removal Court”

On July 15, the Trump Administration filed the first ever application to remove a non-citizen through the Alien Terrorist Removal Court (ATRC), and the court’s first order was issued on July 16. In its 30-year history, the tribunal established by Congress in 1996 has never been used. Its use today should be concerning to all as there are significant implications for the core liberty interests and first amendment rights of implicated non-citizens.

The statute allows for a non-citizen to be targeted by the administration and removed through an opaque process that may include secret evidence. The Attorney General first files an application that is reviewed by one of the Article III ATRC judges appointed by the Chief Justice of the Supreme Court. If approved, special evidentiary rules apply. The government may rely on secret evidence and the non-citizen “shall not be entitled to suppress evidence that the alien alleges was unlawfully obtained” and instead provide an unclassified summary of the secret evidence, which is not required if the court agrees that is not possible to provide a summary without implicating national security concerns.

Here, the protocol diverges based on the non-citizen’s status. If the target is a Lawful Permanent Resident, the LPR and their counsel still do not get to access the evidence or challenge it. Instead, the Court designates a “special attorney” with a security clearance to review the evidence and gives the special attorney an opportunity to challenge “the veracity of the evidence” in camera (in private). If the target is undocumented or present lawfully on a visa, then they do not receive a special attorney and are not allowed to review either the evidence or a summary of it. Following the receipt of evidence, the government makes its case, and arguments related to secret evidence can take place ex parte and in camera. No non-citizen subject to ATRC proceedings can apply for asylum, withholding, cancellation, adjustment of status or voluntary departure. The government need only prove its allegation by a preponderance of evidence, as opposed to the clear and convincing standard that normally applies in removal proceedings. The non-citizen can only appeal to the D.C. Circuit.

Of course, federal regulations allow secret evidence to be used in adjudicating asylum applications and adjustment applications. Perhaps most notoriously, under the “doctrine of consular non-reviewability,” non-citizens located outside the country can be denied visas based on a mere citation to a section of the INA, leaving their U.S. citizen family and associates’ very little ability to challenge.

But there are several reasons why we should not underestimate the danger posed by the ATRC “going live” after 30 years of dormancy.

First, as bad as it is that secret evidence can be used in denying visas and deciding some applications for relief from removal, ATRC is constitutionally distinct. As to visa denials, non-citizens located extraterritoriality are in a different constitutional position than those in the United States. As to asylum and adjustment applications, these are discretionary benefits. But the ATRC process authorizes the Attorney General to deprive individuals who are unquestionably protected by the constitution of their core liberty interests—freedom from custody and in remaining in the country. The executive branch can do so based solely on secret evidence the non-citizen and their lawyer are not allowed to see, through testimony by witnesses they are not allowed to confront, after arguments they are not allowed to hear, regardless of whether any of the evidence was acquired legally or through unconstitutional searches and seizures. We do not know the status of the individual who is the subject of this first ATRC application. But under the statute, these rules apply even to non-citizens who have developed substantial connections to the country through family, work and community ties, and who are on (or near) constitutional equal footing with citizens.

Second, there is a special First Amendment problem posed by the ATRC. The terrorism-related grounds for removal include a ground barring individuals from “endorsing or espousing” terrorist activity. No federal court has opined on this specific provision’s constitutionally, but the Trump Administration recently invoked it to revoke pro-Palestinian photojournalist Yaakub Vijandre’s DACA and to detain him for nine months and counting, based on protected speech on social media. Mr. Vijandre was placed in regular 240 removal proceedings, but the next test case victim may not be so lucky.

Third, and relatedly, the Trump Administration’s definition of terrorism now includes most opposition to his Administration. The Trump Administration called Alex Pretti a “domestic terrorist” for protesting the state murder of Renee Nicole Good. It is hyping up enforcement of National Security Policy Memo-7, which purports to illegalize speech it deems “anti-American” and “anti-fascist.” The fact that Todd Blanche, Trump and Stephen Miller have chosen to invoke the ATRC for the first time now is cause for serious concern.

In a July 20 article in Just Security, Stephen Vladeck refers to the ATRC provisions as an “imperfect compromise” and says that Judge Ericksen’s July 16 order requesting the government shows “the ATRC is not going to be a rubber stamp.” We will soon learn whether Mr. Vladeck is right about this particular case, but the Administration’s broad definition of terrorism and loose commitment to the First Amendment give little reason to think that the first ATRC invocation in 30 years will not ultimately lead in a very dangerous direction.