It is called the “Alien Terrorist Removal Court”, established in 1996 and dormant…until now.
Trump administration activates never-before-used ‘alien terrorist’ deportation court - POLITICO
“The Trump administration has activated a secretive and never-before-used legal process to quickly deport foreign nationals deemed to be “alien terrorists” or their immediate family members.
The Justice Department submitted the first-ever application to the Alien Terrorist Removal Court — which has lain dormant since it was established by law in 1996 — with little notice earlier this week. The details of the July 15 application are sealed and an accompanying cover sheet indicates that the substance is classified.”
WT everlovin’ F?
On the one hand, looks pretty damn unnerving.
On the other, looks like they’re not just immediately doing what Trump wants.
Apparently the law establishing the court provides for
the use of secret evidence against deportation targets which they can never examine.
So that’s nice.
On the other hand, the court is made up of Article III judges who are not beholden to the administration, so they could make independent rulings including disregarding such evidence.
But on the gripping hand, since the Chief Justice handpicked the members of the court, there may well be a certain amount of deference to the administration’s wishes - and if they rule in a way that the administration doesn’t like, it will go up the ladder to the Supreme Court, where niceties like “due process” may not be applied to people deemed aliens.
Established in 1996 by whom? Clinton?
In 1996 it would have been the Gingrich congress. But Clinton must have signed off on it. Or at least allowed it to become law. Curious. If it had been in 2002, it would have been a reaction to 9/11. But 1996?
Probably a reaction to the first World Trade Center bombing:
Of course, this new court was never needed to deal with those terrorists - all were convicted and sentenced via the normal course of justice in U.S. district court. I’d imagine this was an attempt at creating a wedge issue to make Democrats look soft on terrorism in the runup to the 1996 Presidential election.
The statute is found at 8 U.S.C. §§ 1531-37. It was crafted by the Clinton administration in response to the World Trade Center bombings and passed in the wake of the Oklahoma City bombings as part of a broader response to terrorism.
The hearings are open to the public and the accused is appointed an attorney. The potentially problematic part concerns the procedure for admitting secret evidence. 8 U.S.C. § 1534 (e). The accused cannot ask the court to toss evidence because it was obtained unlawfully. The accused cannot view secret evidence that the government intends to use against him; although there are some safeguards. An unclassified summary will be provided if sufficient for the accused to conduct his defense, otherwise the case is dismissed unless: the court agrees that the evidence is too dangerous to reveal even an unclassified summary and that the accused is an alien who is too dangerous to stay in the U.S. If the accused is a lawful permanent resident the court appoints a special attorney whose only job is to review and fight the secret evidence (without telling the accused what it’s all about).
Even with those safeguards, it is still pretty Kafkaesque in the worst case.
Then-Senator Joe Biden put this in lay terms in 1995:
Finally, the Republican substitute contains two very controversial provisions from the administration’s proposal that I believe are troubling. The first is that it includes a provision that I must acknowledge the President’s included, a provision to create new deportation procedures for aliens in the United States who are alleged to be terrorists.
In the administration’s bill, the Government could, in some circumstances, use secret information, not disclosed to the defendant, not disclosed to the defendant’s lawyers, in order to make a case.
We have never had such a procedure in history, to the best of my knowledge, in America, where someone can bring a charge against an individual, go into a Federal court, have the prosecutor meet alone with the judge and say: “Judge, these are all the horrible things that the defendant did. We’re not going to tell the defendant what evidence there is that he did these horrible things. We’re not going to let the defendant know what that evidence is. We’re not going to let the defendant’s lawyer know what it is. We’re not going to let the defendant’s lawyer answer these questions. You and me judge”-me, the prosecutor; you, the judge-“let’s deport him in a secret hearing, using secret evidence. Let’s walk out of this courtroom, out of your chambers, walk out and say, ‘OK, Smedlap, you’re deported. We find you’re a terrorist. You’re out of here.’” And Smedlap looks and says, “Hey, tell me who said I was a terrorist. How do you know that?” We say, “Oh, no, we can’t tell you. 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.
Now what we will hear is–and I think the President is dead wrong on this-but what we will hear is, "Well, look, these folks are not American citizens. They are not entitled to the same privileges as American citizens in a courtroom.‘’
Well, that is technically true. But, my lord, I do not want to be part of anything that establishes that kind of Star Chamber proceeding. Technically, they may be right; philosophically, it is dead wrong.
But it is interesting, my Republican friends do not include taggants [chemical markers put in certain materials to help law enforcement track down bomb-makers]. They do not include additional wiretaps. But they include this. I mean, who, as my little daughter used to say, “Go fish.” How can you figure that one out? I cannot, anyway.
Our judicial system generally requires that a defendant be given evidence that is to be used against him so that he can prepare a defense. Unseen, unheard evidence simply cannot be defended against and it creates the possibility of erroneous decisions.
Senator Strom Thurmond briefly spoke in support of the provision establishing the court:
Also, I am pleased that this legislation contains the much needed language on alien terrorist removal. These provisions create a new “terrorism court” made up of sitting district court judges appointed by the Chief Justice of the Supreme Court. This specialty court would have the authority to hear deportation cases involving alien terrorists and would ensure, through the use of a limited ex parte procedure, that the United States can expeditiously deport alien terrorists without disclosing national security secrets to them and their criminal associates.
141 Cong. Rec. 14531-33 (May 25, 1995). https://www.govinfo.gov/content/pkg/GPO-CRECB-1995-pt10/pdf/GPO-CRECB-1995-pt10-6.pdf#page=119 (warning: large PDF)
~Max
And may we notice that decades later Biden felt no need to undo it (nor did Obama FWIW). Yet another example of never give up an expanded power, never risk “looking soft”.
Which Congress do you think they could have gotten to do so?
CNN gives a little more detail on this court, and the danger it poses if used. Trump has activated a secretive court for deporting ‘alien terrorists.’ Here’s what to know | CNN Politics
It says that there have been judges assigned this whole time, though no cases. What I’d like to know is whether these judges were paid specifically for this, or just on call.
All of the judges appointed to this special court already work as federal district court judges. The Antiterrorism and Effective Death Penalty Act does not provide extra compensation. See who has served here:
https://www.fjc.gov/history/courts/alien-terrorist-removal-court-judges
See their compensation here (district judges column):
https://www.uscourts.gov/about-federal-courts/about-federal-judges/judicial-compensation
~Max