DOJ’s National Security Division (NSD) recently filed the first-ever application with the Alien Terrorist Removal Court (ATRC), a specialized Article III federal court that only hears claims brought by the government under sections 501 through 507 of the Immigration and Nationality Act (INA). That’s quite the feat given the ATRC has long been dormant, established by Congress in 1996 but never before used in the 30 years since – and it’s likely never been used for good reasons.
The Antiterrorism and Effective Death Penalty Act
The ATRC was established by section 401(a) of the Antiterrorism and Effective Death Penalty Act (AEDPA), the first of two major pieces of immigration legislation enacted in 1996.
As the conference report for that law explains:
The removal of alien terrorists from the United States, and the prevention of alien terrorists from entering the U.S. in the first place, present among the most intractable problems of immigration enforcement. The stakes in such cases are compelling: protecting the very lives and safety of U.S. residents, and preserving the national security.
While Congress passed AEDPA more than seven years before the September 11th terrorist attacks, the legislative branch wasn’t being prescient, as the United States had just narrowly dodged terrorist catastrophe in the then-near past.
In February 1993, alien terrorists made their first attempt to destroy the World Trade Center (WTC) in New York using a truck bomb, killing six and wounding more than 1,000 others, just over a month after Pakistani national Mir Aimal Kansi opened fire at the street entrance to the CIA in Langley, Va., killing two agency employees and wounding three others.
Thereafter, a separate (and massive) plot to bomb New York landmarks – including the United Nations building and the Lincoln and Holland Tunnels – and assassinate political leaders planned by 10 aliens and one naturalized U.S. citizen was narrowly foiled in June 1993.
The AEDPA conference report explained why it was so difficult under then-extent immigration laws to remove such aliens from the United States:
[A]lien terrorists, while deportable under . . . the INA, are able to exploit many of the substantive and procedural provisions available to all deportable aliens in order to delay their removal from the U.S. In addition, alien terrorists, including representatives and members of terrorist organizations, often are able to enter the U.S. under a legitimate guise, despite the fact that their entry is inimical to the national interests of the U.S. In several noteworthy cases, the Department of Justice has consumed years of time and hundreds of thousands (if not millions) of dollars seeking to secure the removal of such aliens from the U.S.
Adding credence to these points, as my colleague Steve Camarota explained in his excellent May 2002 study, “The Open Door”, many of the aliens involved in the three 1993 plots above were able to exploit our immigration laws, Kansi and first WTC attack mastermind Ramzi Yousef by filing asylum applications, Yousef’s accomplices Mahmud and Mohammed Abouhalima by filing (questionable) agricultural amnesty applications, and others by marrying U.S. citizens.
The Alien Terrorist Removal Procedures
Congress’s response in AEDPA was to add a new Title V, “Alien Terrorist Removal Procedures”, to the INA, and establish the ATRC.
No fewer than 20 federal district court judges have been named to the court since it was established in 1996, and at present five of them (as mandated in section 502(a) of the INA) are currently sitting on the ATRC, including current Chief Judge Joan N. Ericksen, a George W. Bush appointee whose day job is as a senior judge on the U.S. District Court for the District of Minnesota.
In addition to that gig and her role as the chief of the ATRC, Judge Ericksen also sits on the super-secret Foreign Intelligence Surveillance Court (FISC), so it’s safe to say she’s familiar with classified evidence and the sources and methods the U.S. government uses to obtain it.
Which is good, because as the AEDPA conference report explains, the whole point of the alien terrorist removal procedures is “to permit the use of classified information in appropriate cases to establish the deportability of an alien terrorist”.
As I have explained in the past, both section 240(b)(4) of the INA and the regulations authorize ICE attorneys in removal proceedings to submit classified information to an immigration judge for the court’s review and consideration ex parte (without the alien respondent or the respondent’s attorney reviewing it) and in camera (not in open court, but rather in the immigration judge’s chambers or a closed setting).
That only applies, however, when ICE presents classified evidence to show an applicant for admission is inadmissible under section 212(a) of the INA or in opposition to an alien’s application for discretionary relief from removal (like asylum) – not to prove an admitted alien is deportable under section 237(a) of the INA, including as a terrorist or based on terrorist activities.
The ATRC Rules, in Brief
An ATRC case begins, pursuant to section 503(a) of the INA, when DOJ files an application with the court that identifies the alien and states “the facts and circumstances relied on by” DOJ “to establish probable cause that: (1) the alien is an alien terrorist; (2) the alien is physically present in the United States; and (3) with respect to such alien, removal under” normal immigration procedures “would pose a risk to the national security of the United States”.
That application must be filed ex parte, in camera, and under seal with the district court, and the judge to whom it is assigned may consider (again, ex parte and in camera) the information included in the application, “other information, including classified information, presented under oath or affirmation”, and “testimony received in any hearing on the application, of which a verbatim record shall be kept”.
The judge will approve that application if the court finds there is probable cause to conclude the subject “has been correctly identified and is an alien terrorist present in the United States” and that regular removal proceedings before an immigration judge under section 240 of the INA “would pose a risk to the national security of the United States”.
At that point, ATRC removal proceedings under section 504 of the INA will commence, which by statute must be “conducted. . . as expeditiously as practicable” with the question being whether the alien “should be removed from the United States on the grounds that the alien is an alien terrorist”.
The ATRC removal hearing is public, and the alien must be provided with the hearing date and time as well as “the nature of the charges”, which must include “a general account of the basis for the charges”.
The alien has a right to be represented by counsel, and unlike in regular removal proceedings pursuant to section 292 of the INA, the alien must be assigned a free lawyer by the court if the alien cannot pay for one.
While the alien must have “a reasonable opportunity to introduce evidence” and “a reasonable opportunity to examine the evidence against” him or her and to cross-examine any witness”, the alien is not entitled to review classified evidence, or to move to “to suppress evidence that the alien alleges was unlawfully obtained”.
The government must submit “an unclassified summary of” the classified evidence to the court if the government concludes it can do so without endangering national security or the security of the source, and the court will “approve the summary if the judge finds that it is sufficient to enable the alien to prepare a defense”.
If the court rejects the summary, the government has 15 days to correct any defects that the judge identifies and submit a revised unclassified summary.
And if the court rejects that summary as well, the judge must terminate the proceedings unless the court concludes that “the continued presence of the alien in the United States would likely cause serious and irreparable harm to the national security or death or serious bodily injury to any person” and that “the provision of the summary would likely cause serious and irreparable harm to the national security or death or serious bodily injury to any person”.
In that latter case, and if the alien is a lawful permanent resident (“LPR”, i.e., a “green card holder”), the judge must assign “a special attorney to assist the alien . . . by reviewing in camera the classified information on behalf of the alien”, and “by challenging through an in camera proceeding the veracity of the evidence contained in the classified information”.
That special attorney, however, is not allowed to disclose the classified information to the alien or any other attorney (or to anybody else, for that matter), and if counsel breaks that rule, the lawyer is subject to a fine and/or imprisonment “for not less than 10 years nor more than 25 years”.
Those special attorneys know those rules, because under section 502(e) of the INA, they are drawn from a “panel” of lawyers designated by the ATRC with security clearances who have agreed to represent LPRs in such proceedings.
The government bears the burden of proving “by a preponderance of the evidence” that the alien is removable under section 237(a)(4) of the INA “because the alien is an alien terrorist”, and if the government meets its burden, “the judge shall order the alien removed and detained pending removal from the United States”.
Aliens found removable in ATRC proceedings aren’t eligible for asylum, “statutory withholding” under section 241(b)(3) of the INA, cancellation of removal under section 240A of the INA, the privilege of voluntary departure, or registry under section 249 of the INA, but by regulation remains eligible for “deferral of removal” under the Convention Against Torture (CAT) issued by the DHS secretary after consultation with the secretary of State.
Pursuant to section 505(c) of the INA, either party may file an appeal of the judge’s decision with the U.S. Circuit Court for the District of Columbia (D.C. Circuit), but in the case of a green card holder denied a summary of the classified evidence and assigned a special attorney, D.C. Circuit review is automatic unless the LPR waives it, with the special attorney (and no other lawyer) representing the alien on the classified evidence issues.
The D.C. Circuit must issue an opinion within 60 days (preferably less) and either party may then file a petition for a writ of certiorari with the Supreme Court, though the alien will not receive a stay pending SCOTUS review unless the circuit court or a justice issues a stay.
Why It’s Never Been Used
There are additional provisions having to do with custody and release of the alien, both during the ATRC proceedings and after the issuance of a removal order, but there’s a lot of legal ground to be plowed before any cases ever get to that point.
Because the ATRC has never been used before, the legality of the statutory provisions has never been tested, and as former Assistant U.S. Attorney Andy McCarthy (who prosecuted the “Blind Sheikh”, Omar Abdel Rahman, mastermind of the New York landmarks plot) recently explained, Title V of the INA is “sufficiently dicey, constitutionally speaking” that the government has heretofore used other options to deport alien terrorists.
McCarthy argues, and I concur, that the requirement in Title V that the ATRC judge find that regular, section 240 removal proceedings “would pose an undue risk to national security” is the biggest impediment to proceeding under section 504 of the INA.
As he explains:
In general, if the government has strong enough evidence that an alien is a terrorist, it prosecutes – it’s far better for national security to incarcerate a terrorist for decades than to deport him to a place where he is at liberty to continue plotting against the United States. On the other hand, if the government lacks sufficient evidence to prosecute criminally, the regular immigration laws have strong provisions for removing and excluding suspected terrorist. . ..
As a trial attorney for the then-immigration and Naturalization Service (INS), associate general counsel at the agency, and acting chief of the INS National Security Law division, I regularly handled alien terrorist cases, and there was never an instance in which some “plain vanilla” removal charge couldn’t be lodged against any of them in lieu of terrorist charges.
At that point, the agency could, under the aforementioned rules in section 240 of the INA governing the presentation of classified evidence ex parte and in camera, present national security information to the immigration judge without having to reveal it to the alien (who instead usually received an unclassified summary).
That’s not to say that we were always successful, because presenting classified evidence in immigration court requires sign-off from the attorney general and the agency that compiled it, and immigration judges were loath to consider it, but that option negated any consideration of using the ATRC procedures.
The other major issue is that, unlike immigration judges, Article III district court judges who are assigned to the ATRC usually have little to no experience in immigration law and will be forced to learn it on the fly under a statutorily mandated expedited timeline.
That’s not to say that Judge Ericksen or any other ATRC judge isn’t likely a better attorney than I’ll ever be, it’s simply that immigration terrorism law is extremely arcane and – with the exception of Title V and a few other minor questions – Congress in section 242 of the INA largely cut the district courts off from reviewing immigration questions entirely.
The Golden Unicorn?
All of that said, aside from Judge Ericksen, the NSD prosecutors, and the investigators who compiled the evidence in this case, no one knows anything about this particular alien and his (or her) alleged terrorist ties and activities.
This alien may be the “golden unicorn” who has publicly turned square corners since being admitted to the United States and thus is not deportable on any except terrorism grounds (proof of which would require the presentation of highly sensitive evidence) but who has privately engaged in activities that imperil the national security and the homeland.
If DOJ thinks Alien Terrorist Removal Court procedures under Title V of the INA are a way to quickly remove known or suspected terrorists, it should think again. A court that has never, in its 30 years of existence, heard a case is terra incognita – and a no judge or lawyer wants to be the first traveler in an unknown land.