The Justice Department has just activated a deportation court that no president in 30 years could bring themselves to use.

"They can't engage at all. They can't even know what they're accused of having done."

— Eric Lee, president of the Consular Accountability Project, on the Alien Terrorist Removal Court

For three decades, a special federal court existed on paper but never in practice. The Alien Terrorist Removal Court was created in 1996 as part of the Antiterrorism and Effective Death Penalty Act, signed by President Bill Clinton. Its purpose was straightforward: give the government a way to deport noncitizens labeled as terrorists using evidence that could not be revealed to the public. The catch was that even the accused person's own lawyer might not see the full case. No president, no attorney general, no Congress felt comfortable enough with that trade-off to ever use it.

Then the Trump administration showed up with the keys.

On July 15, the Justice Department filed its first-ever application with the court. Three weeks later, on July 30, the Alien Terrorist Removal Court held its first public hearing in history at the E. Barrett Prettyman courthouse in Washington. The clerk's opening words had never been spoken before: "The United States Alien Terrorist Removal Court is now in session."

The target is Nazira Haji Zada, a 47-year-old Afghan woman and lawful permanent resident living in Fort Worth, Texas. She is not charged with any crime. Her son and son-in-law were both convicted of conspiring to carry out an ISIS-inspired attack on American voters on Election Day 2024. They pleaded guilty, received prison sentences, and will be deported after serving their time. But the Justice Department wants Zada gone too, and it does not want to prosecute her through the regular criminal justice system.

Instead, it is asking a single judge to decide her fate based largely on classified evidence she will never see. Under the court's rules, the standard of proof is "probable cause" rather than "beyond a reasonable doubt." The government need only convince one of five judges that Zada is an alien terrorist and that deporting her through normal channels would risk national security.

Translation: the Justice Department found a shortcut around the criminal justice system for a woman who has not been indicted for anything.

Zada's court-appointed lawyer, Matthew Farley, opened the hearing by calling the entire court unconstitutional. "This entire scheme is in violation of due process and is unconstitutional," he told the presiding judge, Joan Ericksen. He described the procedures as "woefully inadequate" and argued that Zada should be released immediately. Ericksen, a senior judge from Minnesota originally appointed by George W. Bush, denied the request but allowed the defense to renew it later in the case.

Farley's core argument was simple. If the government had real evidence that Zada participated in a terrorist plot, it would have charged her criminally alongside her son and son-in-law. The fact that it is using a civil deportation proceeding instead suggests the evidence cannot survive criminal scrutiny.

"This is a runaround for bringing a criminal case," Farley said. "A runaround to attempt to lower the standard of proof."

The judge herself sounded uncertain about what she was presiding over. She acknowledged the court was operating without a clear blueprint and warned that "there may be moments that are inelegant." She admitted that court officials were still building a website and working on an electronic filing system for a tribunal that never had to handle a case in 30 years.

"We probably read the same law review articles," Ericksen told Farley. "There aren't that many."

The law review articles are telling. Aram Gavoor, an associate dean at George Washington University's law school, co-authored a 2019 paper explaining why the Alien Terrorist Removal Court stayed dormant. His conclusion was blunt: it is a "veritable zombie court." He noted that the government faces 20 to 30 times more hurdles in getting a case through this court than it would in a regular immigration proceeding. It requires probable cause before an Article III judge, public hearings, and an appealable record. It is harder for the government, not easier.

Steve Vladeck, a constitutional law professor at Georgetown, called it "an academic curiosity" and expressed "at least some concerns about why the Trump administration is dusting it off now." He acknowledged that the court's guardrails are narrower than many critics expected: it is "scalpel, not a bazooka" for mass deportations. But he pointed to the telling fact that the government never used it in three decades. "The fact that the government had never previously used this process in the 30 years it's been on the books speaks to the discomfort that just about everyone who's ever looked carefully at the statute has come away with."

During the original legislative debates, then-Senator Joe Biden from Delaware warned that deporting people based on secret evidence was "about as un-American as it gets."

The judges sitting on the court are the same five district court judges who serve on the Foreign Intelligence Surveillance Court, which historically approves over 90 percent of government surveillance requests. Four were appointed by George W. Bush. One was appointed by Trump. All five were selected by Chief Justice John Roberts.

Eric Lee, an immigration attorney who served as lead counsel on the Supreme Court case Department of State v. Muñoz, described the court as "a Rubicon that has not been crossed in this country ever." He argued that the court's structure allows the government to violate core liberty interests protected by the Fifth and First Amendments. "They apply whether you're a citizen or not," he said. "None of the first 10 amendments reference the rights of citizens. They refer to the rights of the people."

Former FBI counterterrorism agent Frank Figliuzzi put it more colorfully on a podcast with legal expert Asha Rangappa. The administration, he said, plays "pretty fast and loose with who is considered a terrorist." When Rangappa identified Stephen Miller as the likely architect behind the court's activation, she called it "a Stephen Miller special."

Figliuzzi described the "darkest possibility" as the court being used against a "left-wing accused terrorist, maybe from overseas." But he also noted that the mechanism is flexible enough to reach anyone the administration decides to label. "It's also possible that it is some rando that was rounded up at Home Depot."

Judge Ericksen was not entirely passive. In her initial order, she pushed back against the government's first application, saying it had questions about "the nexus that the government alleges between the actions of the respondent and the specific sections and subsections it invokes." She ordered the Justice Department to provide "more thoughtful consideration" and additional factual or legal analysis by July 22.

During the hearing, when prosecutors suggested that some classified evidence would not be shared with Zada's lawyers, Ericksen pushed back. "I'll be looking for some pretty strong reasons why the information can't be turned over to counsel," she said.

These moments matter. They show that the court is not entirely a rubber stamp. But they also reveal how untested the framework is. There is no body of precedent, no established procedure, and no clear answer to the fundamental question: how do you ensure due process when the evidence is secret and the accused cannot confront what they are charged with?

Zada was led into the courtroom by deputy marshals, wearing a beige patterned hijab. She communicated through interpreters, answering the judge's questions with head nods. She interjected at the start of the hearing, speaking in a language that was not translated, before remaining silent for the remaining 40 minutes.

The broader context is a deportation system already operating under severe strain. Immigration judges across the country are drowning in rescheduled hearings, with roughly 4,440 people ordered removed in New York City alone in June after missing hearings rescheduled with only days' notice. ICE officers killed two men in separate traffic stops in July, days apart, prompting a brief pause that Trump reversed within hours. And the administration has repeatedly tried to prosecute noncitizens for First Amendment protected activity, only to be embarrassed when judges dismiss the charges.

The Alien Terrorist Removal Court offers an escape hatch. By moving proceedings into a civil framework with classified evidence and a lower standard of proof, the government sidesteps the public scrutiny and procedural protections that have caused so many problems in its regular deportation efforts.

The question is not whether this court can theoretically work. The question is whether any democratic society should let a single judge, working with secret evidence, decide whether a person gets expelled from the country without ever knowing the full case against them. The fact that three American presidents thought it was too dangerous to try says something.

No president for 30 years could bring themselves to cross that line. The current one walked right through it on a Tuesday, with a one-page application and a courtroom that was still building its website.