Trump turns to 'zombie' court after Boasberg pointed to it in deportation fight
The Trump administration is moving to deport an unnamed illegal immigrant suspected of terrorism through the long-dormant Alien Terrorist Removal Court (ATRC), which has never heard a single case.
The Justice Department filed its first-ever application for a removal order with the court on July 15, marking the first attempt in the court's nearly 30-year history to invoke a little-known law allowing the government to deport noncitizens suspected of terrorism through a specialized judicial process that relies on sealed classified evidence. If successful, the administration could revive what legal scholars have called a "zombie" court as a powerful new tool for removing suspected terrorists.
"This Department of Justice will use every tool available to bring alien terrorists to justice and remove them from the United States, including by use of this court established by Congress in 1996," a Justice Department spokesperson said in a statement to Fox News Digital.
The move also comes months after Chief U.S. District Judge James Boasberg in Washington, D.C., pointed to the long-dormant Alien Terrorist Removal Court as an alternative for handling terrorism-related deportation cases while questioning the Trump administration's use of the Alien Enemies Act.
"In fact, Congress has an answer for us, doesn't it? Because they created the Alien Terrorist Removal Court," Boasberg said during a March hearing. "So if there's a national security concern with having these hearings, whether via habeas or otherwise, you can always go to the ATRC, which would be a first, but that's what it's there for, right?"
Boasberg made the comments while presiding over litigation challenging the administration's use of the Alien Enemies Act to deport alleged members of the Venezuelan gang Tren de Aragua. He temporarily blocked the administration from using the wartime law for those removals while the courts determine whether Trump's use of the statute is lawful. Boasberg also ordered deportation flights already in the air to return, setting off a high-profile legal battle between the administration and the judiciary.
Hans von Spakovsky, a senior legal fellow at Advancing American Freedom, told Fox News Digital that it was about time the Justice Department took advantage of this special court.
"I think it is a sign of negligence, frankly, of prior presidents that they did not use this special court, this special procedure that was specifically set up by Congress, so that they could quickly get aliens — aliens who were either terrorists or supported terrorist activities — out of the U.S." von Spakovsky said.
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The one-page sealed application contained virtually no information, leaving out the person's identity, the alleged conduct, and the specific section of the anti-terrorism law the Justice Department cited.
After hearing arguments from Justice Department officials, ATRC Chief Judge Joan N. Erickson, appointed by President George W. Bush, requested additional information before proceedings could continue.
"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," Erickson wrote.
"The answers persuaded the Court that the Government could benefit from the opportunity for more thoughtful consideration," Erickson continued.
Erickson gave the Justice Department until Wednesday to respond with additional documentation.
Congress created the ATRC through the Antiterrorism and Effective Death Penalty Act, signed into law by President Bill Clinton in 1996.
"From now on we can quickly expel foreigners who dare to come to America and support terrorist activities," Clinton said at the bill's signing.
The court is made up of five federal district judges who serve five-year terms. It handles terrorism-related deportation cases where the government says its evidence cannot be made public because it would threaten national security. In those cases, the government provides the respondent with an unclassified summary instead of the classified evidence itself.
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At the time of the law's passage, then Sen. Joe Biden, D-Del., blasted the law.
"You and me, Judge — me, the prosecutor; you, the judge — let's deport him in a secret hearing, using secret evidence," Biden said. "We know you did it, and we can't tell you how we know. Now I think that is about as un-American as it gets."
According to the 9/11 Commission staff report, DOJ attorneys considered 50 cases by 1998 and another 50 over the next two years, but every one was rejected. Some terrorism-related cases moved forward through the regular immigration court system instead.
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The Justice Department's case before the ATRC comes as the Trump administration has repeatedly faced resistance from federal judges, who have blocked, delayed or narrowed key parts of its immigration enforcement agenda.
Von Spakovsky said the Justice Department's use of the ATRC could not only streamline terrorism-related deportation cases but also reduce interference from what he described as "rogue" liberal judges.
"I think this court is a much stronger tool the Justice Department can use, and it's going to make it much tougher for what I consider to be rogue judges to interfere with, and hopefully prevent, the removal of immigrants," von Spakovsky said.