239. The Alien Terrorist Removal Court

The Trump administration has activated a super-secret 30-year-old legal process that had never previously been used. Here's what we know, and why we should (and shouldn't) be worried.

[Editor’s Note: An edited version of today’s post is cross-posted over at Just Security.]

Welcome back to “One First,” a newsletter that aims to make the U.S. Supreme Court more accessible to lawyers and non-lawyers alike. I’m grateful to all of you for your continued support, and I hope that you’ll consider sharing some of what we’re doing with your networks.

If you’re not already a subscriber, please consider becoming one—and upgrading to a paid subscription if and when your circumstances permit:

For as long as I’ve taught National Security Law, the Alien Terrorist Removal Court (“ATRC”), a specialized national security court that Congress created in 1996, has been a recurring curiosity of mine. The idea was to provide a judicial mechanism like the one provided by the Foreign Intelligence Surveillance Act (FISA), in which the government could simultaneously (1) obtain meaningful judicial review in a deportation case while (2) keeping the (classified) evidence secret. Indeed, in a 2014 book chapter, my now-colleague David Cole and I held out the ATRC procedure as a potentially useful illustration of the “cleared counsel” model of national security litigation—in which, instead of providing the subject of an enforcement proceeding with the classified information on which the proceeding depends, the government provides it to a lawyer for the subject (albeit in only a subset of cases before the ATRC). As the chapter reflects, the ATRC had remained an academic curiosity—because it had never actually been used. Until last week.

On Friday, Seamus Hughes (the truly indispensable editor of “Court Watch,” among many other things) broke the news that the Trump administration had filed the first-ever application before the ATRC, leading to the first order in that court’s 30-year history (and its hasty creation of a website). We don’t know much beyond what Seamus has already reported (and what’s now on the ATRC’s website). But as someone who has spent more time thinking about the ATRC than, I suspect, 99.99% of the population, now seems as good a time as any to introduce the court; to flag the constitutional questions its statutory structure raises; and to reflect on how alarming it is that the Trump administration has, after all this time, activated it.

Skipping to the punchline, much like the FISA Court, the ATRC reflects a series of imperfect compromises. And there are reasons to worry about some of the benefits that the ATRC process provides to the government. But—and this is the important part—it also has some protections baked into it that are not currently available (or, at least, not immediately available) to many non-citizens in the “regular” removal process, primarily the robust role of Article III district judges—as opposed to Justice Department immigration judges—in administering it. I have at least some concerns about why the Trump administration is dusting it off now. But there’s no universe in which the ATRC will allow the administration to pursue the kind of mass, summary deportations that it has thus far been unable to achieve through any other immigration authorities. If there’s something nefarious afoot, it’s meaningfully smaller than that.

More on all of this below. But first, the Supreme Court-specific news.

---

On the Docket

There was only a single full-Court ruling out of the Court last week—Tuesday’s denial, over no public dissents, of a stay of execution to Florida prisoner Dennis Sochor. The only other big news out of the Court last week was Tuesday appearances by Justices Kagan and Barrett at House and Senate budget hearings—the first public testimony by sitting justices since 2019, and their first appearance in the Senate since 2011. I’ve written before about the myriad reasons why this really ought to go back to the annual routine that it used to be; hopefully Tuesday’s hearings were a first step in that direction.

Finally, as I noted in last Thursday’s bonus issue, I’ve been a bit busy with Court-related work myself—and posted to SSRN a draft of my Foreword to the Harvard Law Review’s Supreme Court issue for the October 2025 Term, tentatively titled “The Court Against the Courts.” As I noted in Thursday’s post, I’d welcome your feedback!

---

The One First “Long Read”: Unpacking the ATRC

In 1996, as part of the Antiterrorism and Effective Death Penalty Act (and as quickly amended in the Illegal Immigration Reform and Immigrant Responsibility Act), Congress created the ATRC—a tribunal largely modeled on the FISA Court, and which was intended to be able to handle individual deportation hearings in cases involving highly sensitive national security information. Although the statutory procedures are quite complex, the Federal Judicial Center has a helpful summary:

The statute authorize[s] the Attorney General to draft an application for removal of a suspected alien terrorist [a term defined by statute], and to submit the application to the removal court under seal. A single judge may grant the application upon a finding that the alien in question has been identified correctly as an alien terrorist present in the United States and that removal under other available legal means would pose a risk to national security. Upon granting a removal application, the court must hold a public removal hearing at which the accused has the right to be represented by counsel and the government bears the burden of proving that the accused is an alien terrorist. To avoid the disclosure of classified information, the government must prepare an unclassified summary of such information which the judge must find to be sufficient for the alien to prepare a defense. If the government meets its burden of proof at the hearing, the court will order the alien removed from the United States.

As for the judges, the ATRC is composed of five already-serving Article III district judges “assigned” by the Chief Justice to also serve on that court, the only criterion for which is that they come from five different circuits. (For more on the Chief Justice’s assignment powers, see the trivia, below). Under the 1996 statute, the Chief Justice may assign to the ATRC judges who are also serving on the FISA Court, but he doesn’t have to (all five of the current ATRC judges are also FISA judges, but that hasn’t always been true). The Attorney General can appeal a judge’s denial of an application under the statute, and either the Attorney General or the non-citizen at issue may appeal the decision of the judge after a removal hearing. Unlike the FISA process (where there’s also a specialized appeals court—the FISA Court of Review), the 1996 statute gives the ordinary D.C. Circuit exclusive appellate jurisdiction over the ATRC.

I started with the judges and the appeals process because this is probably the most important point about the ATRC: The compromise it reflects is one in which the government’s benefits involve the protection of classified information and the burden of proof (about which more shortly), but in which the costs sound almost entirely in who is reviewing these cases. (There are also some more pro-government rules respecting detention of the subject of the hearing both beforehand and afterwards, but the daylight between those rules and the rules in “ordinary” cases has shrunk quite a bit since 1996.) Unlike immigration judges housed within the Justice Department’s Executive Office of Immigration Review (who are less and less independent by the day), the ATRC is staffed not just by Article III district judges, but (especially today) by those with experience handling the only comparable kind of litigation—classified applications and other proceedings brought under FISA.

The ATRC’s Chief Judge, Judge Joan Ericksen (a senior judge on the District of Minnesota), made this abundantly clear in the order she publicly issued on Thursday. Here’s the relevant text:

On July 15, 2026, the United States filed an Application to the United States Alien Terrorist Removal Court pursuant to 8 U.S.C. § 1531 et seq. to remove the respondent in the above-captioned matter from the United States. On July 16, 2026, the Court held a hearing as contemplated by § 1533(c)(1), at which the Court heard attorney argument but no sworn testimony was taken. During the hearing the United States offered to supplement the record with information, and 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. The answers persuaded the Court that the Government could benefit from the opportunity for more thoughtful consideration.

In other words, the ATRC is not going to be a rubber stamp.

That said, it’s also worth highlighting the constitutional concerns militating in the other direction, most of which were flagged (and carefully analyzed) in an excellent 2008 student note in the Duke Law Journal by John Dorsett Niles. The biggest ones involve the evidence. If the cost to the government of the ATRC process is an Article III judge and a D.C. Circuit appeal, the benefit is the ability to rely entirely on evidence that will remain classified—and be presented in most cases only to the judge and only in camera.

If the judge, after considering the evidence on the record as a whole, finds that the Government has met its burden [i.e., that a preponderance of the evidence shows the non-citizen to be an “alien terrorist,” as that term is defined by statute¹], the judge shall order the alien removed and detained pending removal from the United States. If the alien was released pending the removal hearing, the judge shall order the Attorney General to take the alien into custody.

In other words, the statute authorizes the government to remove someone from the country based on evidence they never see and don’t meaningfully have an opportunity to contest. As Niles’s note points out, this raises quite severe due process questions—especially for those non-citizens whose due process rights most closely approximate those of citizens, i.e., lawful, permanent residents (LPRs, or “Green Card” holders).

Mindful of those concerns, Congress provided a special procedure for cases in which the subject of the proceeding is an LPR. Under 8 U.S.C. § 1534(e)(3)(F), the court in such a case must appoint a “special attorney to assist the alien,” “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.” In other words, an LPR is entitled to have a lawyer challenge the evidence being used against them, even if the lawyer can’t actually consult with the subject of the proceeding. This approach is obviously not perfect, but it reflects at least a genuine attempt on Congress’s part to balance the government’s interest against that of the non-citizen.

At the other end of the spectrum, for better or worse (my own view skews toward the latter), non-citizens with far weaker claims to comparable due process protections (including those who have never had lawful immigration status) can be removed from the country under this provision without ever being told why; other than the government, only the judge assigned to the case (and the D.C. Circuit) would ever know the reasons. And in the middle, perhaps the hardest cases are those in which the subject is a non-citizen with substantial lawful connections to the United States, just not LPR status. Those individuals would have the strongest argument, in my view, that the statute fails to accord them the constitutionally required process—because they don’t get the benefit of the “special attorney” even though they have substantial due process rights.

As Niles notes, the seriousness of these constitutional concerns is almost certainly a big part of why, across 30 years, the government had never previously utilized this procedure. And we have no way to know what it is that prompted the Trump administration to change course now. But it seems worth flagging three things that we do know—which ought to bear on both how big a story this is and how alarmed we should be by it.

First, on its face, the statute contemplates a robust and meaningful role for the district judge—in lieu of the subject and their attorney in most cases. And Thursday’s order by Chief Judge Ericksen is a promising sign that she, at least, takes that role seriously. Courts could do a lot, in this context, to mitigate the constitutional concerns by ensuring not only that the government is held to the statutory requirements in every particular, but that its evidence that the subject really is an “alien terrorist” is robust and substantial.

Second, because of the meaningful (if secret) judicial review the statute contemplates, there is no universe in which the ATRC could become a vehicle for mass, summary deportations along the lines of what the Trump administration has already attempted—including through the Alien Enemies Act of 1798. The ATRC is exactly what the executive branch-dominant process before immigration judges and the Board of Immigration Appeals is not—it’s insulated from political pressure. However the ATRC’s judges come out in individual cases, the substance and timing of the review the statute contemplates would be deeply antithetical to any attempt to use its procedures in a large number of cases at any one time. It’s a scalpel, not a bazooka.

Third, and militating in the other direction, the fact that the government had never previously used this process in the 30 years it’s been on the books speaks to the discomfort that just about everyone who’s ever looked carefully at the statute has come away with. Democratic legal systems abhor secret evidence—not just because of the grave fairness concerns it can create but because of the corrosive effects of having these kinds of decisions made out of the public eye, no matter how faithful to the relevant legal criteria they may be. The FISA process may affect a heck of a lot more people, but no one is being removed from the country based solely on a secret decision made by a FISA judge based upon secret and uncontested evidence.

Even in a world in which the five ATRC judges are doing their level best to put the government through its paces, and to look out for the interests of the non-citizen whose liberty is at issue, it is more than a little difficult to have faith in such a process—no matter what we think of the administration that’s invoking it. All the more reason, in my view, for abolition of the ATRC—or, at the very least, substantial reform—to be added to the laundry list of lower court-directed measures that will be sorely needed the next time we have a Congress that cares. Until then, here’s another envelope-pushing move by the Trump administration to which we’ll have to pay close attention, and another example of Article III district judges serving as the principal and most meaningful check to hold the executive branch accountable.

---

SCOTUS Trivia: The Chief Justice’s Assignment Power

One of the Chief Justice’s more interesting statutory authorities is the power to “assign” (a verb that has intentionally different legal implications from “appoint”) already serving Article III judges (and justices) to temporary service on other courts. The ATRC is one of four distinct courts (or panels) staffed entirely by Chief Justice assignments; the FISA Court, the FISA Court of Review, and the Judicial Panel on Multidistrict Litigation are the other three. But the Chief Justice also has the (oft-used) authority to assign active and senior district and circuit judges (and retired justices) to temporary service on other courts. (This practice is generally referred to as “sitting by designation.”)²

Chief Justice Roberts’s approach to these assignments has come under some fire in the past, including in a July 2013 New York Times study by Charlie Savage that raised questions about whether Roberts’s assignments to the FISA Court had skewed toward judges appointed by Republican presidents to a meaningfully greater degree than the assignments made by his predecessors. I’ll just say that, for all of the criticisms directed toward the Chief Justice these days, the current compositions of these courts reflect a pretty impressive cross-section of highly regarded judges appointed by presidents of both parties. There are plenty of problems with the ATRC (and the FISA Court, while I’m at it). But in my view, the identity—and quality—of the judges is pretty far down the list.

---

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to email me. And if you liked it, please help spread the word!

If you’re not already a paid subscriber and are interested in receiving regular bonus content (or, at the very least, in supporting the work that goes into this newsletter), please consider becoming one:

This week’s bonus issue will drop on Thursday. As ever, I hope you are all staying safe out there.

1. The relevant definition of “alien terrorist” comes from 8 U.S.C. § 1182(a)(3)(B) and (F).

2. The Chief Judge of each circuit also has the power to assign district and circuit judges within that circuit to sit by designation within the same.