Justice Department activates untested court for 'alien terrorist' deportations

The chief judge of the five-member court, Joan Ericksen, said in a written response to the petition that a hearing was held on Thursday during which 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.

“The answers persuaded the Court that the Government could benefit from the opportunity for more thoughtful consideration,” wrote Ericksen, a federal judge in Minnesota.

She directed the Justice Department to provide more information by Wednesday.

The court's authorities emerged from the Antiterrorism and Effective Death Penalty Act of 1996, which permits the attorney general to file under seal applications for the deportation of a suspected “alien terrorist.” If an application is granted, the court must hold a public hearing at which the government has the burden to prove that the individual satisfies that definition. Applications must be approved by the attorney general or deputy attorney general.

Federal law says that an individual could qualify as an “alien terrorist” by, among other factors, having “engaged in a terrorist activity,” endorsing or espousing terrorist activities and by belonging to a political or social group that encourages terrorist activity.

The court has been dormant since its creation, having received — until last week — no applications and conducting no hearings, according to a summary posted on the Federal Judicial Center website. It is comprised of five judges selected by Chief Justice John Roberts.

The Trump administration has moved aggressively over the last year to carry out deportations, including invoking a 1798 wartime law, the Alien Enemies Act, to remove Venezuelan migrants who officials accuse of being part of a terrorist gang. During a hearing in that case last year, the Washington judge presiding over it, James Boasberg, indicated that the Alien Terrorist Removal Court would be the natural forum to consider a request for deportation on national security grounds.

“In fact, Congress has an answer for us, doesn’t it? Because they created the Alien Terrorist Removal Court,” he 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?”

The petition was first reported by Court Watch, an independent news site.