The Trump administration filed a case last week with a federal court that has sat empty since Congress created it thirty years ago. The Alien Terrorist Removal Court, established in 1996 to handle deportations that would otherwise require exposing classified intelligence, received its first application on July 15. The chief judge held a hearing the next day and told the Justice Department to come back with more.

Who the government wants to deport, what he or she is alleged to have done, and which provision of the law the department invoked are all unknown. The application is sealed, and its cover sheet indicates the contents are classified. The only public trace is a one-page docket entry and a brief order.

What Happened in Court

Chief Judge Joan Ericksen, a George W. Bush appointee who sits in Minnesota, convened a sealed hearing on July 16. She heard attorney argument and took no sworn testimony.

Her order afterward was short and pointed. She wrote that the court had "questions about the nexus that the government alleges between the actions of the respondent and the specific sections and subsections it invokes with respect to those actions," and that the government's answers "persuaded the Court that the Government could benefit from the opportunity for more thoughtful consideration."

Ericksen directed the department to supplement its application with any further factual or legal analysis needed to satisfy its statutory obligations, setting a deadline of July 22.

The filing landed on the same day acting Attorney General Todd Blanche, Trump's nominee for the permanent post, testified before the Senate Judiciary Committee. Under the statute, applications must be certified by the attorney general or deputy attorney general, which in this case means Blanche. The Justice Department did not respond to requests for comment, and the White House referred questions to the department.

The case was first spotted by Seamus Hughes, who runs the independent site CourtWatch.

How the Court Works

The court was created by the Antiterrorism and Effective Death Penalty Act of 1996. Its five judges are district judges from different circuits, appointed by the chief justice to staggered, renewable five-year terms, a structure modeled loosely on the Foreign Intelligence Surveillance Court. Alongside Ericksen, the current members are Timothy DeGiusti of Oklahoma, Kenneth Karas of New York, Sara Lioi of Ohio, and Karin Immergut of Oregon, four Bush appointees and one Trump appointee.

The process runs in two stages. First, the government files under seal, ex parte and in camera, meaning the person targeted receives no notice and no opportunity to respond. A single judge decides whether there is probable cause to believe three things: that the person is an alien terrorist, that he or she is physically present in the United States, and that removal through ordinary immigration proceedings would pose a risk to national security.

If the judge grants the application, the statute requires an expeditious public removal hearing where the person is entitled to counsel and the government must prove its case. Classified evidence still is not disclosed; instead the government must produce an unclassified summary, and the judge decides whether it gives the person enough to mount a defense. Appeals from either side go to the D.C. Circuit.

The statutory definition of "alien terrorist" is broad. It reaches those who have engaged in terrorist activity, those who endorse or espouse it, members and representatives of designated organizations, people who received military-type training from them, and in some circumstances the spouse or child of someone designated. A separate provision lets the secretary of state designate a noncitizen who intends to engage in activities that could endanger the welfare, safety, or security of the United States. Ordinary federal evidence rules do not apply, and the law does not require exclusion of illegally obtained evidence.

Why It Sat Idle for Thirty Years

The court's disuse has been remarked on almost since its creation, and the explanations fall into two categories.

One is that prosecutors have not needed it. A 9/11 Commission staff report found the department considered roughly 100 possible cases by 2000 and rejected every one, concluding that ordinary immigration charges were sufficient. The passage of the PATRIOT Act in 2001 further reduced any perceived need.

The other is legal risk. Scholars have argued for decades that the procedures may not satisfy Fifth Amendment due process, particularly the use of secret evidence a person can never see. One early law review article criticized the provision allowing illegally obtained evidence. Stephanie Cooper Blum later described the dilemma as a case of "use it and lose it."

That concern was not confined to critics. A 1998 Senate majority staff report issued under Republican Senator Jon Kyl, while calling the department's failure to use the court "disappointing," acknowledged that the government had reason to be cautious, warning that "the wrong case" could mean "the constitutional nullification of the ATRC." A footnote identified the likely challenge: that the statute fails on its face to protect due process, especially in its classified information provisions.

Signs of the court's dormancy remain visible. Its website posts filings under a "Court Rules and Procedures" heading that links only to the statute, and is maintained by the U.S. District Court for the District of Columbia. The Federal Judicial Center's description still states that the court has never received an application and conducted no proceedings.

Where It Fits in the Deportation Push

The filing is the latest step in an administration effort to expand removal authority, and the court's existence has already figured in that fight. Last year, when the government invoked the 1798 Alien Enemies Act to deport more than 100 Venezuelan nationals it accused of belonging to Tren de Aragua, Judge James Boasberg pointed to this very forum.

"In fact, Congress has an answer for us, doesn't it? Because they created the Alien Terrorist Removal Court," Boasberg said. "So if there's a national security concern with having these hearings, you can always go to the ATRC, which would be a first, but that's what it's there for, right?" Administration attorney Drew Ensign replied that the availability of the court did not bar the president from using other powers. The Supreme Court subsequently ruled that people targeted under the Alien Enemies Act must receive notice and a chance to challenge removal.

Whatever the outcome, the mechanism is not built for volume. Every case requires senior Justice Department certification, judicial review of a probable cause application, and a full public hearing. A ruling for the government would establish a route to deport people linked to terrorism while keeping most of the evidence secret. A ruling against it would demonstrate, after three decades of speculation, that the statute demands more than the department is prepared to put on the record. The supplemental filing is due Wednesday.