The Trump administration has activated a secret 30-year-old court that's never been used. Here's what we know, and why we should (and shouldn't) be worried.
With the current "acting" AG, as a decider of defining a terrorist, I'm inclined to vote for nefarious reasons that this is the first usage of this oddball Court. Similar to the reasoning behind the "Wars" sold to the public after 9/11. Not to mention the absolute destructive years of Vietnam. 1942, that was the last year that the USA declared War. Yet, here we are. Is it a wonder why We Peasants have become so distrustful of "our" government!
Just a small comparatory remark from European (ad especially Czech) perspective.
1) Using classified evidence not available to the party, is standard part of judicial process. It is not very common, but in some areas (immigration law, non-proliferation in context of export licenses or security clearances) is using classified evidence quite common.
2) In that case, administrative agency issuing negative decision is not obliged to share a classified information to the party, but is is required to provide so called "essence of classified information" (for example statement that essence of the information is collaboration of a party with an organized crime or foreign power).
3) During judicial review of such decision, the judges review the information if it is suffient and trustworthy enough to support the decision. Judges are required to act to a certain extent as a "defense lawyer" as participants and their lawyers do not know the information. From my experience this process works rather well in balancing fair procces and neccesity to protect classified information.
The problem with the ATRC is that it doesn’t seem to give the defendant any means of contesting the claim that the information relied upon is properly classified. Thus the ATRC gives the government a means to hide its Constutional abuses in the investigation and arrest process at least in cases where it doesn’t kill the suspect. Any lawyer who has experience with matters of National Security is aware that the government will claim top secret on rolls of toilet paper if it can hide political embarrassment from the public. And the Incumbent Administration is particularly subject to a need to hide its abuses
Good point about the question of proper classification.
I recently re-watched "All the President's Men", a film about the Watergate scandal in the Nixon era. The level of government corruption was very reminiscent of what we see under Trump, the main difference being that in those days they still felt a need to hide their corruption.
Rosa Brooks wrote that when she worked at the Pentagon, there were managers who marked their routine emails TOP SECRET, because otherwise they weren't sure their employees would read them.
Not surprised. This is issue of classification is not unique to Republican Administrations . What makes this one different is the extent to which the FBI and ICE manage repeatedly to blatantly disregard Due Process and Civil Rights and find that their incompetent and lawless conduct needs o be hidden from public view.
“You can always go to the ATRC, which would be a first, but that’s what it’s there for, right?” Judge James Boasberg, former ATRC chief judge 2020 through 2025
Setting up a court case in which they can challenge the "independence" of this court where national security is involved?? This administration uses "national security" as an excuse for many actions it see as in its sole control.
"Shame" is a powerful tool for keeping people in line and acting professionally that especially impacts lawyers/judges. To be able to say, "I am a very serious person working in a very serious profession," you can't be writing silly things. The element of 'shame' is not quite missing but greatly diminished in the ATRC because of the unrevealed evidence and unrevealed briefs based on the unrevealed evidence.
So, my question is to what degree can 'shame' be added to the court's proceedings to minimize unserious pleadings, filings, and evidence? "Shame" is particularly important because Todd Blanche is unserious, downright silly, in his pursuit of being Attorney General, and he leads a very unserious (and getting into increasing trouble) Department of Justice.
I disagree. The FISA court is much more dangerous to civil liberty. Look at the abuses under President Obama. How many lives were ruined or had their privacy violated by that court's findings? Looking forward to your review of this.
I suspect that Justices Kagan and Barrett appeared solely because the Court wants something. The annual appearance provided more of an opportunity for a dialogue, where the American people could get something through their Article I representatives. I sense the Court feels it is above all that now.
Mr. Vladeck - I would send this question to the email link you provided if I could do it without linking my email and everything else I do with the "cloud". Your post about the ATRC is very interesting. One particular issue that tends to raise my blood pressure is, "Who decides what is National Security and what is not. It seems to me that we have an administration that is more than willing to slap that oh-my-god-scary-National-Security label on anything they simply do not wish to reveal. Also, the term "classified" certainly receives more than its share of use. Could you address this issue?
Sorry. "the judge shall order the alien removed and detained pending removal from the United States?" Are we doing the time warp again? I am afraid I do not follow.
In this context, the confrontation clause problems have always seemed insoluble to me.
Thank you, Steve for explaining something that we do need to know more about.
From the sound of your description, the Trump Administration “flood the zone” approach will likely overwhelm this court and/or give rise to rubber stamping and perfunctory reviews. Worse, Stephen Miller pressure campaigns inside administration will promote ethical attorney dilemmas that many current DOJ attorneys seem inexperienced to navigate. So, I would anticipate suspect practices and sloppiness to prevail. And, with little to no higher judicial review (appeal) rights, potentially few chances to correct errors or uncover fraud in the prosecutions. Once again, we could be left to only repeatedly ask of the current regime: “Have you no decency?”
Just glancing at this quickly, I suspect the Trump administration is salivating over the definition of “alien terrorist” in 8 U.S.C. § 1182(a)(3)(F): “Any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the United States is inadmissible.” Sounds very nebulous and based entirely on the “determination” of the Secretary of State (Marco Rubio) and the Attorney General (Todd Blanche).
[I edited this comment to fix some typos and to provide a more direct quote from the Trump administration about Mahmoud Khalil.]
Will the public know which individuals the government is using the ATRC to try to deport, or will that also be secret?
Does Congress have any oversight over the ATRC?
Is all the evidence the government presents to the ATRC kept secret, or only the classified portions? If the former, it would be a handy way for the Trump administration to hide its activities.
I expect the Trump administration to use the ATRC to try to deport prominent non-citizens such as Mahmoud Khalil who criticize the Israeli government. The Trump administration initially claimed that Khalil "led activities aligned to Hamas, a designated terrorist organization" (1), but in court, they privately said that "DHS has not identified any alternative grounds of removability that would be applicable to Chung and Khalil, including the ground of removability for aliens who have provided material support to a foreign terrorist organization or terrorist activity." (2)
The Trump administration routinely lies about what happened in ICE shootings of citizens and immigrants, so we should expect them to lie to the ATRC.
Khalil didn't just criticize the government--he has SUED them. I am betting this is him. Interesting that the statute specifically names the PLO but not Hamas.
I just noticed this as well in 8 U.S. Code § 1534 (e)(1)(B): "an alien subject to removal under this subchapter shall not be entitled to suppress evidence that the alien alleges was unlawfully obtained."
So the government is apparently also allowed to use unlawfully obtained evidence.
I wonder it that includes evidence obtained by torture.
What worries me about the 4th Amendment is that it says "The rights of THE PEOPLE." The Extremes included migrants under the 5th (due process) because it says "no person." IE not "no citizen." But are "the people" another way of saying "legitimate people of the US, IE citizens ?? To a NORMAL person, "the people" is just he plural of "a person." But these are not normal Extremes.
And if the 4th is out for the undocumented, bye bye requirement of a warrant. Even to enter a private home. Of course, if the home belongs to a landlord, it is a violation of THEIR rights. Can THEY complain about use of evidence illegally obtained? Standing based on loss of rental income. There are laws about hiring the undocumented, but as far as know, not about renting to them.
One argument I've been waiting for trump and his phalanx of under his thumb executive branch types. The FIRST Amendment. Who is prohibited? Congress (and via the 14th, state legislatures.) Nary a word about presidents. Can he by executive order declare this is a Christian Nation? Or that any protestors about ICE (under his control & all executively cozy) have no "right to petition for redress of grievances" because, you guessed it, he's Commander in Chief with apparently the final say about what "national security" means.
Regarding Mahmoud Khalil's lawsuit, ICE official Peter Hatch testified in court that he formed a specialized task force "to respond to abrupt orders that he rush analysis on thousands of people whose names and identities had been published by Canary Mission" and Betar (1). But Hatch said his office "had no formal relationship with Canary Mission", so it will be hard for Mr. Khalil to prove a conspiracy, though it's clear that the administration and those groups were aligned in the purpose of silencing criticism of Israel.
Can't wait to see how the "right' likes all this abuse of power when AOC is Queen. My guess is they will head to 'no queens day' with incredible speed.
My first thought, as several of the commenters noted, is the Court of the Star Chamber. This has all the hallmarks of a court subject to the whims of a lawless ruler not a democratically elected President. Secret information that is not available to the accused seems to create a legal nightmare similar to that of Joseph K. How does one defend himself or herself against charges that they don’t even know but to which their lawyers may be privy. This is a nightmare right out of Kalfka.
I am betting the "alien" involved here is Mahmoud Khalil, since he just sued the government over conspiracy. Luckily he has a green card (I think they revoked it, but whether they could is in fact an issue). It could be Gabriel Hurtado-Cariaco, the guy falsely accused of a choke hold (per videos) because DHS seems to be drilling down on "Tren de Aragua" Would they DARE charge Abrego Garcia??
If the target here IS a high profile immigrant, (or even if not) is there anything that keeps HIM from announcing that he's the one? (Possibly she, but I doubt it).
Oh dear … ATRC, Star Chamber 2.0.
With the current "acting" AG, as a decider of defining a terrorist, I'm inclined to vote for nefarious reasons that this is the first usage of this oddball Court. Similar to the reasoning behind the "Wars" sold to the public after 9/11. Not to mention the absolute destructive years of Vietnam. 1942, that was the last year that the USA declared War. Yet, here we are. Is it a wonder why We Peasants have become so distrustful of "our" government!
Just a small comparatory remark from European (ad especially Czech) perspective.
1) Using classified evidence not available to the party, is standard part of judicial process. It is not very common, but in some areas (immigration law, non-proliferation in context of export licenses or security clearances) is using classified evidence quite common.
2) In that case, administrative agency issuing negative decision is not obliged to share a classified information to the party, but is is required to provide so called "essence of classified information" (for example statement that essence of the information is collaboration of a party with an organized crime or foreign power).
3) During judicial review of such decision, the judges review the information if it is suffient and trustworthy enough to support the decision. Judges are required to act to a certain extent as a "defense lawyer" as participants and their lawyers do not know the information. From my experience this process works rather well in balancing fair procces and neccesity to protect classified information.
The problem with the ATRC is that it doesn’t seem to give the defendant any means of contesting the claim that the information relied upon is properly classified. Thus the ATRC gives the government a means to hide its Constutional abuses in the investigation and arrest process at least in cases where it doesn’t kill the suspect. Any lawyer who has experience with matters of National Security is aware that the government will claim top secret on rolls of toilet paper if it can hide political embarrassment from the public. And the Incumbent Administration is particularly subject to a need to hide its abuses
Good point about the question of proper classification.
I recently re-watched "All the President's Men", a film about the Watergate scandal in the Nixon era. The level of government corruption was very reminiscent of what we see under Trump, the main difference being that in those days they still felt a need to hide their corruption.
Rosa Brooks wrote that when she worked at the Pentagon, there were managers who marked their routine emails TOP SECRET, because otherwise they weren't sure their employees would read them.
Not surprised. This is issue of classification is not unique to Republican Administrations . What makes this one different is the extent to which the FBI and ICE manage repeatedly to blatantly disregard Due Process and Civil Rights and find that their incompetent and lawless conduct needs o be hidden from public view.
“You can always go to the ATRC, which would be a first, but that’s what it’s there for, right?” Judge James Boasberg, former ATRC chief judge 2020 through 2025
Setting up a court case in which they can challenge the "independence" of this court where national security is involved?? This administration uses "national security" as an excuse for many actions it see as in its sole control.
"Shame" is a powerful tool for keeping people in line and acting professionally that especially impacts lawyers/judges. To be able to say, "I am a very serious person working in a very serious profession," you can't be writing silly things. The element of 'shame' is not quite missing but greatly diminished in the ATRC because of the unrevealed evidence and unrevealed briefs based on the unrevealed evidence.
So, my question is to what degree can 'shame' be added to the court's proceedings to minimize unserious pleadings, filings, and evidence? "Shame" is particularly important because Todd Blanche is unserious, downright silly, in his pursuit of being Attorney General, and he leads a very unserious (and getting into increasing trouble) Department of Justice.
I disagree. The FISA court is much more dangerous to civil liberty. Look at the abuses under President Obama. How many lives were ruined or had their privacy violated by that court's findings? Looking forward to your review of this.
I suspect that Justices Kagan and Barrett appeared solely because the Court wants something. The annual appearance provided more of an opportunity for a dialogue, where the American people could get something through their Article I representatives. I sense the Court feels it is above all that now.
Mr. Vladeck - I would send this question to the email link you provided if I could do it without linking my email and everything else I do with the "cloud". Your post about the ATRC is very interesting. One particular issue that tends to raise my blood pressure is, "Who decides what is National Security and what is not. It seems to me that we have an administration that is more than willing to slap that oh-my-god-scary-National-Security label on anything they simply do not wish to reveal. Also, the term "classified" certainly receives more than its share of use. Could you address this issue?
Sorry. "the judge shall order the alien removed and detained pending removal from the United States?" Are we doing the time warp again? I am afraid I do not follow.
In this context, the confrontation clause problems have always seemed insoluble to me.
Thank you, Steve for explaining something that we do need to know more about.
From the sound of your description, the Trump Administration “flood the zone” approach will likely overwhelm this court and/or give rise to rubber stamping and perfunctory reviews. Worse, Stephen Miller pressure campaigns inside administration will promote ethical attorney dilemmas that many current DOJ attorneys seem inexperienced to navigate. So, I would anticipate suspect practices and sloppiness to prevail. And, with little to no higher judicial review (appeal) rights, potentially few chances to correct errors or uncover fraud in the prosecutions. Once again, we could be left to only repeatedly ask of the current regime: “Have you no decency?”
Just glancing at this quickly, I suspect the Trump administration is salivating over the definition of “alien terrorist” in 8 U.S.C. § 1182(a)(3)(F): “Any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the United States is inadmissible.” Sounds very nebulous and based entirely on the “determination” of the Secretary of State (Marco Rubio) and the Attorney General (Todd Blanche).
[I edited this comment to fix some typos and to provide a more direct quote from the Trump administration about Mahmoud Khalil.]
Will the public know which individuals the government is using the ATRC to try to deport, or will that also be secret?
Does Congress have any oversight over the ATRC?
Is all the evidence the government presents to the ATRC kept secret, or only the classified portions? If the former, it would be a handy way for the Trump administration to hide its activities.
I expect the Trump administration to use the ATRC to try to deport prominent non-citizens such as Mahmoud Khalil who criticize the Israeli government. The Trump administration initially claimed that Khalil "led activities aligned to Hamas, a designated terrorist organization" (1), but in court, they privately said that "DHS has not identified any alternative grounds of removability that would be applicable to Chung and Khalil, including the ground of removability for aliens who have provided material support to a foreign terrorist organization or terrorist activity." (2)
The Trump administration routinely lies about what happened in ICE shootings of citizens and immigrants, so we should expect them to lie to the ATRC.
[1] https://www.newsweek.com/trump-admin-admits-green-card-holder-mahmoud-khalils-actions-were-lawful-2058630
[2] https://storage.courtlistener.com/recap/gov.uscourts.mad.282460/gov.uscourts.mad.282460.315.18.pdf
[3] https://www.nytimes.com/2026/01/22/us/politics/trump-rubio-student-speech.html
Khalil didn't just criticize the government--he has SUED them. I am betting this is him. Interesting that the statute specifically names the PLO but not Hamas.
I was thinking the same thing. This is special treatment for Mahmoud Khalil.
I just noticed this as well in 8 U.S. Code § 1534 (e)(1)(B): "an alien subject to removal under this subchapter shall not be entitled to suppress evidence that the alien alleges was unlawfully obtained."
So the government is apparently also allowed to use unlawfully obtained evidence.
I wonder it that includes evidence obtained by torture.
What worries me about the 4th Amendment is that it says "The rights of THE PEOPLE." The Extremes included migrants under the 5th (due process) because it says "no person." IE not "no citizen." But are "the people" another way of saying "legitimate people of the US, IE citizens ?? To a NORMAL person, "the people" is just he plural of "a person." But these are not normal Extremes.
And if the 4th is out for the undocumented, bye bye requirement of a warrant. Even to enter a private home. Of course, if the home belongs to a landlord, it is a violation of THEIR rights. Can THEY complain about use of evidence illegally obtained? Standing based on loss of rental income. There are laws about hiring the undocumented, but as far as know, not about renting to them.
One argument I've been waiting for trump and his phalanx of under his thumb executive branch types. The FIRST Amendment. Who is prohibited? Congress (and via the 14th, state legislatures.) Nary a word about presidents. Can he by executive order declare this is a Christian Nation? Or that any protestors about ICE (under his control & all executively cozy) have no "right to petition for redress of grievances" because, you guessed it, he's Commander in Chief with apparently the final say about what "national security" means.
Regarding Mahmoud Khalil's lawsuit, ICE official Peter Hatch testified in court that he formed a specialized task force "to respond to abrupt orders that he rush analysis on thousands of people whose names and identities had been published by Canary Mission" and Betar (1). But Hatch said his office "had no formal relationship with Canary Mission", so it will be hard for Mr. Khalil to prove a conspiracy, though it's clear that the administration and those groups were aligned in the purpose of silencing criticism of Israel.
[1] https://www.nytimes.com/2025/07/09/us/politics/ice-canary-mission-student-deportations.html
haven’t looked at it, but I don’t think “formal relationship” is a requirement for conspirators.
I hope it's not. I'm not a lawyer, so I'm not familiar with the details.
Can't wait to see how the "right' likes all this abuse of power when AOC is Queen. My guess is they will head to 'no queens day' with incredible speed.
My first thought, as several of the commenters noted, is the Court of the Star Chamber. This has all the hallmarks of a court subject to the whims of a lawless ruler not a democratically elected President. Secret information that is not available to the accused seems to create a legal nightmare similar to that of Joseph K. How does one defend himself or herself against charges that they don’t even know but to which their lawyers may be privy. This is a nightmare right out of Kalfka.
I am betting the "alien" involved here is Mahmoud Khalil, since he just sued the government over conspiracy. Luckily he has a green card (I think they revoked it, but whether they could is in fact an issue). It could be Gabriel Hurtado-Cariaco, the guy falsely accused of a choke hold (per videos) because DHS seems to be drilling down on "Tren de Aragua" Would they DARE charge Abrego Garcia??
If the target here IS a high profile immigrant, (or even if not) is there anything that keeps HIM from announcing that he's the one? (Possibly she, but I doubt it).
Yes, but without "liking" it.