The Administration Has Revived an Ancient Method for Deporting People, and It’s Partially Bill Clinton’s Fault

3 min readRemember back when triangulation was all the rage? When Bill Clinton was a political genius for hijacking Republican policies and gussying them up with some quiet populist bells and whistles? When we ended up with punitive welfare reform and a few dozen new death penalty crimes? Och, thim was the days.Anyway, the latter was part of the Antiterrorism and Effective Death Penalty Act, passed in the wake of the Oklahoma City bombing, and the worst attack on civil liberties prior to September 11, 2001. Another provision of that ghastly law allowed the chief justice of the Supreme Court to appoint five district court justices to a new, special court with a specific mandate. From Mother Jones:Last week, the Trump administration filed the first-of-its-kind application with a 30-year-old removal court seeking to deport an immigrant as a suspected “alien terrorist.” The twist is that the court has been dormant for that entire time.Congress created the special Alien Terrorist Removal Court (ATRC) in 1996 as part of the Antiterrorism and Effective Death Penalty Act. “From now on we can quickly expel foreigners who dare to come to America and support terrorist activities,” President Bill Clinton said when signing the bill into law. The statute authorized the Chief Justice of the United States to assign five district court judges to review removal applications brought by the attorney general against alleged non-citizen “terrorists” in complex cases involving sensitive national security information.Somehow, common sense has prevailed and these courts, while fully staffed, have never done a damned thing. However, nobody got around to noticing the essential worthlessness of the system, so it remained there in the law just waiting for us to elect (twice!) an authoritarian administration led by a delusional crazy person.Scoreboard!On July 15, the Justice Department filed a single-page application with the special court. Details about the case are sealed. But a judge’s order on the matter states that, following a hearing, 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 fact that the Justice Department has initiated an ATRC proceeding is quite serious,” said Aram Gavoor, the associate dean for academic affairs at George Washington University’s law school who wrote a 2019 paper about the removal court’s inactivity. “It is 20 to 30 times harder to succeed in a court like this, especially the first time, than to bring perhaps the exact same case in administrative removal proceedings before an immigration judge.” In that article, Gavoor and his co-author explained that the ATRC isn’t supposed to be a “high-volume court used for run-of-the-mill removal cases. Instead, it should be used only when the attorney general “determines that resorting to conventional removal proceedings would jeopardize national security.” With the passage of subsequent legislation that further limited the scope of potential cases to reach the ATRC, it has been relegated to a “veritable zombie court.”One of my particular annoyances about American law are these archaic loose ends that lay around in the statute books like land mines until some politician finds a grubby use for them. These include the Alien Enemies Act, Espionage Act, the Insurrection Act, and now, this little gift from the long ago. Secret courts are anathema to free government, and the ghosts of civic panics past are no excuse.