The Tribunal for the Deportation of Foreign Terrorists (ATRC) has remained inactive since its creation in 1996, with no website to track its proceedings. However, this month, it sprang into action with an unprecedented case brought by the Trump administration, seeking new deportation strategies.
For three decades, a rotating group of judges assigned to the tribunal stood ready to handle any case that came their way. Yet, until now, the federal government had never deemed a case worthy of bringing before this tribunal or testing the constitutionality of its controversial procedures.
The ATRC’s Controversial Procedures
The ATRC grants the government broad discretion to keep secret, even from the person being deported, the reasons for considering an immigrant a terrorist. It also limits many of the usual avenues migrants have to challenge their deportation.
By design, most of what happens in the tribunal remains confidential, so little is known about the historic case the Department of Justice presented there this month. What is public is an order from the ATRC judge overseeing the case, indicating she was not convinced by the government’s initial arguments and demanded additional information be presented this week.
The ATRC’s Legal and Constitutional Questions
Since its establishment by Congress through the Antiterrorism and Effective Death Penalty Act of 1996, doubts have persisted about the tribunal’s constitutional validity. This may explain why previous administrations avoided using it.
Legislators created these confidential procedures to protect state secrets that the Department of Justice deemed a national security risk if revealed in an open court. According to the law, alleged ‘foreign terrorists’—a legally defined term—receive limited information about the evidence gathered by the government to justify their rapid deportation.
These limitations have led to accusations that the tribunal violates the due process guarantees of the Fifth Amendment, which protects not only citizens but also legal immigrants and even those in the country without authorization.
“The ATRC was the last court one would have wanted to resort to,” said Andrew Arthur, who oversaw terrorism cases as a senior attorney for the former Immigration and Naturalization Service of the Department of Justice in the late 1990s and early 2000s.
During his tenure at that agency, which was eliminated with the creation of the Department of Homeland Security, the government determined that conventional immigration procedures offered sufficient protections for classified information in national security-related cases. Arthur also noted that using the ATRC would inevitably lead to legal challenges that would force the Supreme Court to rule on the matter.
It is unclear why this calculation changed, but the Trump administration has shown a greater willingness to take legal risks when pushing the boundaries of the law.
Arthur, now a researcher at the Center for Immigration Studies, an organization that advocates for stricter immigration laws, speculated that the case might involve “a person whom the government concludes did something very serious, but that something so serious cannot be said in an open court.”
“Or perhaps they want to establish the ATRC as an independent and slightly faster tribunal,” he added.
Unlike other highly publicized immigration measures by the Trump administration, the Department of Justice presented the new case discreetly, with documents under seal. The case was first reported by Court Watch.
“This Department of Justice will use all available tools to bring foreign terrorists to justice and deport them from the United States, including this tribunal established by Congress in 1996,” said a Department of Justice spokesperson in a statement sent to CNN.
Comparing the Trump administration’s use of this tribunal to the movie Jurassic Park, CNN legal analyst Steve Vladeck stated that “the velociraptors are testing the fences.”
“If they lose this case, it’s about one person whom they can presumably subject to the ordinary deportation process,” said Vladeck. “If they win, think about the precedent that is set.”
Several aspects of the tribunal make the process of deporting people theoretically faster and deprive them of many of the usual mechanisms to challenge their expulsion.
The law requires that proceedings be conducted “as rapidly as possible.” It also prohibits asylum applications and other arguments that people can use to avoid deportation under ordinary immigration law.
The appeals process is also faster. Any appeal must be filed with the Washington, D.C. Circuit Court of Appeals within 20 days of the decision. Appeals in ordinary immigration proceedings are much slower and go through several stages before reaching a federal appeals court.
However, legal experts argue that it is not a tool the government can use to deport a large number of immigrants. The five judges who make up the ATRC are part of the judiciary established in Article III of the Constitution, making them more independent than the immigration judges of the executive branch who normally preside over deportation proceedings.
Given that an alleged foreign terrorist has very few elements to challenge the Department of Justice’s arguments, the law essentially “shifts that responsibility to the judge,” explained Vladeck, a Georgetown Law professor who has previously written about the tribunal. “The entire process was always intended for judges to be especially skeptical, but I think the events of the last 18 months will make them even more likely to be.”
Considering the tribunal’s functioning, “it really doesn’t make much sense for the government to try to use it for mass deportations,” said J. Wells Dixon, a senior attorney at the Center for Constitutional Rights, who has litigated cases related to immigration and national security.
Observers predict that establishing the constitutionality of this expedited process will take time. Even while the tribunal remained unused for decades after its creation, legal experts debated for years whether it provides immigrants with adequate notice of the process and a real opportunity to respond.
“Are we really going to say that they can be deported based on evidence they never get to see?” said Vladeck.
Once the government determines that resorting to ordinary deportation procedures would pose a national security risk, it can file a petition with the tribunal, entitling it to present most of its case in camera and ex parte; that is, only the judge has access to the full set of evidence, and that information remains hidden from the person subject to the process.
“Throughout the entire legal framework of the ATRC, it is evident the purpose of Congress in creating this tribunal: to provide a forum through which the United States Attorney General can deport resident aliens who are likely terrorists without being forced to reveal state secrets,” notes an article published in 2011 in the Duke Law Journal, written by John Dorsett Niles.
Once the judge approves the initial request, the law requires a public hearing and establishes procedures for the alleged foreign terrorist to have legal representation, although there are confidentiality provisions that limit the defense their lawyers can provide.
Legal permanent residents have the most rights within the tribunal’s procedures. Although they are not entitled to directly review the government’s evidence, the law requires the appointment of a special attorney who can access that classified information and challenge it on behalf of the immigrant. However, that special attorney cannot share the details of the evidence with their client, posing an obstacle to the defense they can offer.
Those with weaker ties to the United States—such as immigrants in the country without authorization or documented immigrants with temporary status—may receive very general summaries of the evidence presented by the government. However, the government is not even obligated in all cases to provide that general summary.
In addition to the due process concerns raised by these procedures, there are aspects of the law that created the tribunal that conflict with the Fourth Amendment’s prohibitions against unreasonable searches and seizures, said Dixon.
The law, for example, states that the alleged terrorist cannot request the exclusion of evidence obtained illegally by the government.
“When Congress creates new courts intended to deprive people of the guarantees offered by the ordinary Article III courts, the only predictable and guaranteed result is years of additional litigation,” Dixon affirmed.
The Trump administration filed its petition in July, according to the Federal Judicial Center’s page explaining the tribunal’s functioning. In addition to the cover of the Department of Justice’s petition, the only public document in the case is an order issued on July 16 by Judge Joan Ericksen, who has been the chief judge of the ATRC since 2026 and presides over the new case. The order indicates that a hearing was held before her that day.
The judges serve on the tribunal for staggered five-year terms and are appointed by Supreme Court Chief Justice John Roberts. The law requires that each come from a different circuit, that is, from the regions covered by each federal appeals court. Roberts did not respond to a query sent by CNN to the Supreme Court about what other criteria he considers for making those appointments.
Ericksen is a senior judge of the United States District Court for Minnesota, a state that became the epicenter of tensions between the judicial and executive branches during the increase in immigration control operations in Minneapolis earlier this year.
The ATRC will convene in the federal courthouse in Washington, where the District Court and the District of Columbia Circuit Court of Appeals, as well as the Foreign Intelligence Surveillance Court, operate, but judicial officials could not provide details about the July 16 hearing.
Judge Ericksen’s order suggests there were gaps in the government’s case, vaguely referring to her doubts about how the person’s alleged actions were related to the laws the government invoked.
The judge gave the government until Wednesday to present additional information and indicated that she believed “the government might benefit from the opportunity to give more considered attention.”
As of Thursday morning, that document did not appear on the tribunal’s public website.
