Be Wary, Not Alarmed, By This Federal Court

For 30 years, the Alien Terrorist Removal Court existed only on paper. Its first-ever case could test whether its own procedures are constitutional.

The argument: The ATRC represents a valiant congressional effort to balance the constitutional demands of due process and the need to keep classified evidence secret. The court is not free from constitutional concerns, but fears about it are almost certainly overblown.

WHY IT MATTERS

Despite being created in 1996, the Alien Terrorist Removal Court conducted no judicial business until July 15, 2026. In fact, it was not until after that date that the ATRC even had a website. The ATRC’s sole jurisdiction is to determine whether a non-citizen is an “alien terrorist” on the basis of classified evidence that is never released to the party or to the public. The court’s complex procedures, however, strain to compensate for the obvious due process problems that arise when a party lacks full access to, and cannot fully respond to, evidence presented to the court.

The ATRC’s procedures also include safeguards unavailable in most comparable proceedings. Although it handles immigration matters, the court is staffed by Article III federal judges with lifetime tenure, rather than administrative immigration judges appointed under Article I. That distinction matters. Article III judges enjoy greater independence from political pressure and broader judicial authority, including stronger powers to compel the government to produce evidence and comply with court orders. These structural protections help ensure a fairer process for those appearing before the court.

Most individuals appearing before the ATRC are entitled, at government expense, to a security-cleared attorney who may review the classified evidence on their behalf. Before a formal hearing, the parties must agree on an unclassified summary of the evidence that the judge finds sufficiently fair to allow the individual to respond meaningfully. In addition, the ATRC’s final removal orders may be appealed directly to the U.S. Court of Appeals for the D.C. Circuit, and the government’s authority to detain individuals before or after the proceedings is not materially different from that in other immigration cases.

Pro-immigration activists are always concerned about government tools that might be used to facilitate mass deportations by glossing over individuals’ due process rights. But the unique nature of the ATRC’s jurisdiction makes it a tribunal that could never be used to facilitate these types of orders. While there is no precedent establishing how the ATRC will interpret the statutes governing its own procedures l, the statutes themselves limit the court to highly individualized cases. And like most litigation before Article III judges, each case could drag out for years.

The ATRC’s one case involves an Afghan woman who previously pledged loyalty to ISIS and who, the government alleges, was involved with her son and son-in-law in planning a terrorist attack. If true,this type of activity is a clear and intolerable threat to national security. The options available for attaining some sort of reasonable outcome in this type of case seem to be limited. The best course is to allow this case to play out, test the court’s jurisdiction and procedures in “real life” rather than in theory, and consider reforms later. There are no egregiously unconstitutional or fundamentally unfair aspects of how this court is designed to function, so there is no reason to doubt that its first litigant will receive fair treatment.

THE BOTTOM LINE

The American judicial system is designed to be open, fair, and oriented toward justice. Although the ATRC’s handling of classified evidence raises legitimate due process questions, its narrow jurisdiction and procedural safeguards reflect a serious congressional effort to balance national security with fundamental fairness.