Dem
47
GOP
53
One of the challenges in bringing criminal cases against foreign nationals that involve classified information has always been how to present the evidence needed for a conviction without revealing the information. So, Congress wrote laws like the Classified Information Procedures Act, which set up uniform procedures for federal courts to manage the admission of classified information in federal criminal proceedings. Also the Foreign Intelligence Surveillance Act (FISA) created the FISA court, which reviews applications for foreign surveillance warrants that often involves classified documents.
Along those lines, in 1996, Congress created the Alien Terrorist Removal Court (ATRC), a specialized national security court designed to provide meaningful judicial review in deportation cases without revealing classified evidence that may be relevant to the case. But no administration has ever used the ATRC, until now.
The reason that the Trump administration has suddenly activated this court for the first time is not clear. The application was filed under seal and all we have is a preliminary order from the judge assigned to the case, U.S. District Judge Joan Erickson, one of five who were designated by Chief Justice John Roberts to handle these cases.
Steve Vladeck has done extensive research on the ATRC and has written a helpful
primer
on the issues with a court that is largely run in secret. But the good news, such as it is, is that the proceedings in
the ATRC are run by Article III judges, not immigration judges controlled by Stephen Miller Trump's executive
branch. So, there are more procedural protections for individuals than in immigration court. And, as Vladeck points out,
the court can't be used for mass deportations, so there's no inherent advantage here over other tribunals.
And in fact, in the first order on the only application so far to this court, Judge Erickson doesn't seem to be buying what the administration is selling. We don't know who the defendant is or what the allegations are, but the judge, in her order, stated that she "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." In other words, the facts don't match up to the laws the government claims have been broken. Hmmm, where have we seen this movie before? The court concludes with this gem: "The answers persuaded the Court that the Government could benefit from an opportunity for more thoughtful consideration." That's judge-speak for "stop wasting my time with this nonsense, you clod, and don't come back until you have an actual case." She gave the government until July 22 to muster up the necessary evidence.
So, why use this court now? It could be that the White House thought that the ATRC would be more compliant and less rigid in its application of the law than regular district courts. Perhaps that is because Roberts has stacked the court with only judges appointed by George W. Bush and Donald Trump. But, as we've seen before, most judges (admittedly, with a few glaring exceptions) are independent, regardless of who appointed them, and take their jobs seriously to apply the law without prejudice. So it is here. Erickson, a Bush appointee, may yet give Trump what he wants, but so far, it seems the government lawyers are doing the same shoddy and shady work that has earned them similar rebukes in the regular federal courts.
If the application is granted, the court must hold a public removal hearing where the government must prove beyond a reasonable doubt that the accused is an alien terrorist. Any classified information must be summarized in an unclassified document with enough specificity for the accused to mount a meaningful defense. Finally, if removal is ordered, the non-citizen has the right to appeal. So, these procedures are much more involved, complicated and time-consuming than other deportation proceedings. But there is also the lure, no doubt by Trump officials, of being able to present evidence in secret without having to share it with the defense. There are legitimate constitutional due process concerns with this court and the statute that created it, which is probably why no one has used it until now.
There is, of course, the possibility, however remote, that the defendant does pose some kind of threat to national security and should be removed. If that were the case, however, one would think that they could get it right the first time and not incur the court's scorn. But with this group, competence is a (rare) luxury. Depending on how the court rules on the application, we should know more details soon. (L)