Hello! Today I want to take a look at an obscure tribunal with an ominous name — the Alien Terrorist Removal Court.
Established by Congress in 1996 in the wake of the Oklahoma City bombings, it was dormant for the next 30 years and never heard a case. A law review article once called it a “veritable zombie court.”
It suddenly sprang to life this month, at the Trump administration’s behest.
There are good reasons that no earlier president had sought to use the court to deport accused terrorists, and they cut in opposite directions. One is that the court’s procedures, which allow the use of secret evidence that the defendant cannot see, are at odds with ordinary conceptions of due process.
Filing a case in the specialized court, then, gives the government great power but probably entails signing up for constitutional challenges akin to those over the military tribunals created after the Sept. 11 attacks, which gave rise to years of litigation.
On the other hand, some of the court’s other features offer defendants protections not available in ordinary deportation proceedings, making it an unattractive forum for the government in most cases.
The court is overseen, for instance, by federal judges with life tenure rather than the immigration judges who generally handle deportation proceedings and answer to the attorney general. And the defendant is entitled to a lawyer paid for by the government.
I spoke briefly and in general terms on Tuesday with Joan Ericksen, the chief judge of the newly awakened court. She said she is committed to trying to make the court as public as possible even though it was created to deal with classified information.
She has approached the court’s first case methodically. The government’s initial filing, in a case involving an Afghan woman living in Texas, did not satisfy her, and she asked for more information.
After it arrived, she granted the application for a hearing even as she stressed that it was just the beginning of a “multiphase process.”
She wrote that she was balancing two interests. Quoting from Supreme Court decisions, she said that combating terrorism is “an urgent objective of the highest order” but not one that warrants “abdication of the judicial role.”
Judge Ericksen also serves on the Federal District Court in Minnesota. She was appointed to her day job by President George W. Bush in 2002. Chief Justice John Roberts then first assigned her to the specialized court in 2023 as one of its five members. He elevated her to chief judge last year.
The court’s first case involves Nazira Haji Zada, a lawful permanent resident of the United States whom Todd Blanche, the acting attorney general, accused of being “the matriarch of an ISIS-sympathizing family aiding in a plot to launch a mass casualty attack on American voters on Election Day.”
Judge Ericksen held a status hearing this morning, which my colleagues Alan Feuer and Adam Sella covered. Ms. Zada’s newly assigned lawyers criticized what they said was the government’s lack of transparency and asked the judge to order that they be briefed on the classified evidence.
Seamus Hughes, who is a contributor to The New York Times and was the first to report on the government’s initial sealed filing for Court Watch, was in the courtroom. He said the two sides’ lawyers and the judge thumbed through statutes to try to nail down basic questions about how the court will operate.
“They’re clearly building the court as they go,” he said.
The court’s website, which went live shortly after the Trump administration sought the court’s intervention this month, has a slightly homemade vibe but is also a notable attempt at transparency in the circumstances, including redacted but informative filings and a message from Judge Ericksen in which she answered anticipated questions.
For instance: “Is it a secret court?”
Her response: “No,” explaining that classified information submitted to the court could not be disclosed but that the “existence, makeup and procedures of the court are public.”
She told me the court was a work in progress, one that must be flexible and ready to adapt.
In a statement, John Eisenberg, a Justice Department official, explained why the administration had activated the little-known court. “The government should not have to choose between allowing a dangerous alien to remain in the United States and disclosing sensitive classified information in a traditional removal proceeding,” he said.
When President Bill Clinton signed the law creating the court, he said it was one of “tough new tools to stop terrorists before they strike.”
Still, the court is a weird hybrid of trade-offs. Some would seem to make it easier for the government to conduct deportations, but some make it harder.
The law allows the government to submit classified evidence and to keep it secret from the person it seeks to deport, though that person is generally entitled to see an unclassified summary with enough detail to present a defense.
The proceedings are not subject to the federal rules of evidence, and information obtained unlawfully may be admitted. On the other hand, they are supervised throughout by independent federal judges. The losing side can appeal to the U.S. Court of Appeals for the District of Columbia Circuit.
In light of all of this, it is hard to imagine that the specialized court will play a major part in the administration’s commitment to mass deportation.
“It’s a scalpel, not a bazooka,” Stephen Vladeck, a law professor at Georgetown, wrote of the court after news of the government’s filing emerged last week.
Other Things Worth Knowing About
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President Trump asked the Supreme Court on Tuesday to hear his challenge to an $83.3 million jury award against him for defaming the writer E. Jean Carroll after she accused him of a decades-old sexual assault in a Manhattan department store. The court will probably not answer until at least sometime in the fall.
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But it seems he did not follow through on his promise to ask the justices to reconsider their rejection of his executive order seeking to limit birthright citizenship. The deadline passed on Monday.
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Several former Federal Communications Commission officials, including chairmen appointed by Presidents Ronald Reagan, George H.W. Bush and Barack Obama, urged the agency to “lift the pall of state censorship it has cast over American broadcasting.” The plea came in a filing supporting ABC, which has been a target of Brendan Carr, the F.C.C.’s current chairman.
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David Cole, in an essay on the recently concluded Supreme Court term in The New York Review of Books, gave the court a mixed review. He said the court’s rulings rejecting some of Trump’s programs were important, difficult and “should not be discounted.” But, he added, “the bad news is that the court is also more willing than ever to thrust aside prior decisions that get in the way of its desired outcomes.”
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Trump asked the Supreme Court to lift a lower court’s order blocking his executive order seeking to curtail voting by mail.
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Justice Ketanji Brown Jackson went on Michelle Obama’s podcast.
Mailbag
The Power of Precedent
What does it typically take for the Supreme Court to override its own precedent? — Helen Taylor
The justices say they look at several factors in deciding whether to overrule a precedent, and they have ruminated on what those factors are and how to apply them. There was an extended discussion of the question, for instance, in the controlling opinion in Planned Parenthood v. Casey, the 1992 decision that reaffirmed the core of Roe v. Wade, the 1973 decision that established a constitutional right to abortion.
The justices who joined that opinion said they had considered several questions before concluding that the heart of the Roe precedent should not be discarded.
Among them: Has the challenged precedent proved unworkable as a practical matter? Have people come to rely on it? Have the facts the decision was based on changed? Would overruling the decision harm the Supreme Court’s legitimacy?
At his confirmation hearings, Justice Brett Kavanaugh called that discussion in Casey “precedent on precedent.”
The court overruled both Roe and Casey in 2022. Justice Samuel Alito’s majority opinion in that case, Dobbs v. Jackson Women’s Health Organization, reformulated the factors in Casey. He wrote that the decision’s discussion of precedent had veered off course in taking account of the public opinion.
Instead, he emphasized another criterion, saying that Roe and Casey had been “egregiously wrong.”
The dissenting justices said that standard “could equally spell the end of any precedent with which a bare majority of the present court disagrees.”
I’d love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at [email protected].
Closing Argument
The Supreme Court’s Poll Numbers Plunge
The Supreme Court’s approval ratings have plummeted to a new low, according to a new poll from Gallup. Just 33 percent of Americans approved of the court’s work, a six-point drop from last year. When Gallup first started asking the question in 2000, the court’s approval rating was 62 percent.
Almost all the recent drop was attributable to Republican dissatisfaction with the court’s rulings, said Jeffrey Jones, a Gallup senior editor.
The new poll was conducted in early July, just after the conclusion of the court’s most recent term. It featured big wins for the conservative legal movement on executive power, voting rights and campaign finance. But it also dealt Trump some losses, notably on birthright citizenship and tariffs.
Those rulings appeared to have relatively little impact on attitudes among Democrats, Jones said. Just 12 percent of them approved of the court’s work.
“Democrats are so low that they can’t get much lower,” he said. “We did see a two-point drop but it’s not meaningful.”
By contrast, the court’s approval rating among Republicans dropped to 58 percent from a near-record high of 79 percent last year. Trump’s attacks on the court in the wake of his losses doubtless contributed to the change.
“Republicans,” Jones said, “are driving this one.”
Please send me your comments on secret evidence, sticking to precedent, poll numbers or anything else at [email protected]. See you next week. — Adam
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