The court’s chief judge, U.S. District Judge Joan Ericksen, a George W. Bush appointee, held a closed hearing on the matter on Thursday before ordering the Justice Department to submit a revised application.
“The government could benefit from the opportunity for more thoughtful consideration,” Ericksen wrote in a one-page order. She stated she had lingering questions about the conduct attributed to the Justice Department’s target and how it fits within the statutory criteria for removing an “alien terrorist.” The government has until Wednesday to file an updated application.
Congress established the Alien Terrorist Removal Court as part of the Antiterrorism and Effective Death Penalty Act of 1996. The law authorizes the chief justice of the United States to appoint five U.S. The chief justice may appoint judges who also serve on the Foreign Intelligence Surveillance Court. District judges, each from a different federal judicial circuit, to review government applications seeking the removal of noncitizens alleged of terrorism-related activities.
Under the statute, an application must be authorized by the attorney general or deputy attorney general, in this case, Acting Attorney General Todd Blanche, and must include a sworn statement of facts explaining why the individual qualifies as an “alien terrorist” and why their presence in the United States threatens national security.
The law defines “terrorist activity” broadly. It covers members of designated foreign terrorist organizations, individuals who commit, plan, endorse, or espouse terrorist activity, and, in some circumstances, the spouses and children of those designated as alien terrorists. It also includes a broader provision allowing the the secretary of state to designate as an alien terrorist a noncitizen who intends to engage in activities that could endanger the welfare, safety, or security of the United States.
Although the court has existed for nearly three decades, it has never been used.
Its existence drew attention last year during litigation over the Trump administration’s effort to deport more than 100 Venezuelan nationals it alleged were members of the transnational gang Tren de Aragua, which the administration designated as a foreign terrorist organization.
During a hearing in that case, U.S. District Judge James Boasberg suggested Congress had already created a judicial process for removing alleged alien terrorists.
“In fact, Congress has an answer for us, doesn’t it? Because they created the Alien Terrorist Removal Court,” Boasberg said.
The Department of Justice has submitted its first-ever application to the Alien Terrorist Removal Court, a never-before-used court established three decades ago.
The application, filed July 15, was submitted with little public notice. Its contents remain sealed, and an accompanying cover sheet indicates the filing contains classified information.
