Getty Images A federal court that Congress created in 1996, which nobody ever used, just heard its first case.
The Alien Terrorist Removal Court sat on the books for thirty years like a piece of legal furniture no one sat in or dusted beneath. But last week the Justice Department finally started testing out the cushions.
I have spent more than a decade as a designated expert witness, testifying in federal and state courts on such financial topics as fiduciary duty and investment management. I know a bit about how courts behave when a novel legal mechanism gets tested for the first time. Judges move carefully. Lawyers overreach. Everybody watches to see whether the process holds up once there are real facts and a real defendant.
That is exactly what is playing out right now in a courtroom most Americans have never heard of.
Congress created the Alien Terrorist Removal Court as part of the Antiterrorism and Effective Death Penalty Act of 1996, giving the Chief Justice of the United States authority to designate five federal district judges to review government applications seeking the removal of noncitizens tied to terrorism. The idea was simple enough: Sometimes the government has intelligence showing that a person poses a terrorism threat, but using that intelligence in an ordinary immigration hearing would expose sources and methods to the very terrorists we are trying to stop. The court was built as a pressure valve — a way to act on classified information and expel someone dangerous without broadcasting it to the world.
For three decades, that valve stayed shut. According to a 9/11 Commission staff report, the Justice Department had looked at roughly 100 potential cases by 2000 and rejected every one of them, concluding that ordinary immigration charges would get the job done without the hassle of an untested statute. That changed on July 15, when the government submitted the court’s first-ever application, seeking removal of an individual whose identity remains sealed, according to a court order posted on the tribunal’s own website.
Chief Judge Joan Ericksen held a hearing the next day. She pressed the government on the connection between the alleged conduct and the statute the Justice Department invoked and ordered prosecutors to come back with more facts and legal analysis. The deadline for that supplemental filing is this week.
This is not a rubber stamp — it is a federal judge doing what federal judges are supposed to do, making the government show its work before anyone loses the privilege of remaining in this country.
The law sets up a two-stage process, and its structure matters. First, a single judge reviews the application privately and decides whether there is probable cause. If that hurdle clears, the case moves to a public hearing, where the government must show it is more likely than not that the person meets the statutory definition of an alien terrorist. That preponderance standard sits below the beyond-a-reasonable-doubt bar we use in criminal court, but it is a real bar all the same.
What should give every serious observer pause is that ordinary federal rules of evidence do not apply here. In fact, the statute explicitly permits the government to use illegally obtained evidence. In every expert engagement where I have worked, the evidentiary standard is the whole ballgame. Change the rules of what counts as proof, and you can change the outcome before a single witness takes the stand.
This did not come out of nowhere. The administration has already leaned on a 1798 wartime statute, the Alien Enemies Act, to remove Venezuelan nationals accused of gang ties. During arguments in that case, Judge James Boasberg pointed out that Congress had already built a purpose-made forum for this kind of removal. Somebody at the Justice Department was apparently listening.
Supreme Court Justice Antonin Scalia spent a career reminding courts that the Constitution protects process, not just outcomes we happen to like. Jonathan Turley has made a similar point about the current wave of expedited removal efforts: Due process does not disappear because the target is unsympathetic.
I do not disagree with the goal here. A country that cannot remove people who pose a genuine terrorism risk has stopped taking its own security seriously. I have watched enough dysfunction in immigration enforcement to welcome a tool built for exactly this purpose.
But a tool this powerful, and this untested, deserves scrutiny at every step, not blind deference because the target sounds scary in a press release.
Judge Ericksen’s initial skepticism is a healthy sign, not an obstacle. A court that asks hard questions on day one is a court that will produce a record that survives appeal, and that is what will actually get dangerous people removed from the country and keep them out.
The alternative, a government that skates through on thin filings and sympathetic judges, would hand every immigration lawyer in the country a roadmap for challenging the next case. I would rather see this done right the first time than done fast and then undone on appeal eighteen months from now.
Watch for the supplemental filing that is due this week. Watch whether the government can actually connect its allegations to the statute Judge Ericksen questioned.
A 30-year-old sleeping statute just woke up. How carefully it is used in this first case will tell us whether it becomes a serious national security tool or a cautionary tale about reaching for an untested law to solve a political problem.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management.
Add as preferred source on Google TagsCopyright 2026 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
Comments: Link copiedMore Opinions - National Security News
See All
Opinions - National Security Winning before the battle ends by David Harris, opinion contributor 2 days ago Opinions - National Security / 2 days ago 
