The Trump administration in July initiated deportation proceedings in the Alien Terrorist Removal Court for the first time since it was created 30 years ago. The move has raised questions about the court’s origins and procedures, as well as what administration officials may be trying to accomplish by using this exceptional mechanism.

What is the Alien Terrorist Removal Court?

The Alien Terrorist Removal Court is a specialized U.S. court for deporting immigrants suspected of engaging in terrorist activities. Congress established the court in 1996 through a law that advanced sweeping and controversial criminal justice and counterterrorism reforms in the wake of the Oklahoma City bombing. It was created to address concerns that standard deportation procedures might provide insufficient protection for classified evidence regarding terrorist activities. Soon after, Congress modified the Alien Terrorist Removal Court’s procedures to further limit immigrants’ access to the government’s evidence against them for terrorism-related deportations.

The push to use classified evidence in terrorism-related deportation proceedings arose out of the Reagan administration’s failed attempt to detain and deport the “L.A. Eight,” a group of immigrant-activists allegedly involved with the Popular Front for the Liberation of Palestine. The Reagan administration never charged the L.A. Eight with any crime, but it tried to deport them based on classified evidence that supposedly connected their pro-Palestinian fundraising and distribution of literature to an international terrorist conspiracy. The immigration judges of the era, however, refused to detain and deport the group based on secret evidence that the immigrants had no opportunity to review and rebut. In response, administration officials sent Congress proposed legislation permitting the use of classified evidence in terrorism-related deportations, which after years of debate and bipartisan amendment was enacted to establish the Alien Terrorist Removal Court.

For 30 years, no administration used the Alien Terrorist Removal Court. Administrations instead charged suspected terrorists in criminal court or pursued deportations through administrative immigration courts housed within the Department of Justice.

How does the Alien Terrorist Removal Court work?

Many of the details are being hashed out as the first case makes its way through the court, but the law establishes the basic contours. The court is staffed with five federal trial court judges selected by the chief justice of the U.S. Supreme Court from five different judicial circuits. The current Alien Terrorist Removal Court judges were appointed by Republican presidents. All five also serve on the Foreign Intelligence Surveillance Court, a separate specialty court that considers the government’s applications to secretly gather foreign intelligence. (The Brennan Center has previously critiqued that tribunal for its track record of extreme deference to the government.)

There are two steps to the Alien Terrorist Removal Court process. First, the government must submit an application showing it has probable cause to believe that an immigrant is an “alien terrorist” as that term is defined in the immigration law and that regular immigration deportation procedures would pose a risk to national security. If that application is granted, the government moves to the second step: a removal hearing at which the government must meet a higher evidentiary standard for proving that the immigrant is an “alien terrorist.” The immigrant has an opportunity to rebut the government’s arguments at the hearing.

As grave as these allegations may seem, the legal definition of an “alien terrorist” who has engaged in “terrorist activity” is broad and flexible. Under the law, terrorist activity includes not only serious offenses, such as using chemical weapons to threaten public safety, but also providing, whether voluntarily or under duress, housing or transportation to what the law defines as a “terrorist organization.” Statutorily, the term terrorist organization includes even “a group of two or more individuals, whether organized or not,” who have hijacked a vehicle or used a firearm to cause substantial damage to property — a threshold virtually any criminal gang would meet. As the courts have acknowledged, these terms encompass “more conduct than our society, and perhaps even Congress, has come to associate with traditional acts of terrorism.” Moreover, an alien terrorist under the law need not have been involved in terrorist activity themselves; they can be the spouse or child of someone involved in terrorist activity.

The Alien Terrorist Removal Court has several other notable and concerning features. It permits the government to take immigrants into custody as soon as the government files an application for the court’s review. Only green card holders may challenge their detention during the period before the court issues its ruling. Separately, Alien Terrorist Removal Court judges cannot consider an immigrant’s eligibility for asylum or certain other defenses to deportation, although a claim for protection under the Convention Against Torture is not barred. Once ordered removed, immigrants can select the country of removal, but if the government overrules that selection on foreign policy grounds or the country will not accept the immigrant, the immigrant can be removed to “any country willing to receive such an alien.”

How do the Alien Terrorist Removal Court procedures differ from those for criminal prosecutions for terrorist activity?

The procedures for obtaining a removal order through the Alien Terrorist Removal Court are substantially less rigorous and less protective than those applicable to criminal prosecutions for terrorist activity. To secure a removal order in the Alien Terrorist Removal Court, the government need only prove “by the preponderance of the evidence” — in other words, that it is more likely than not — that an immigrant has engaged in terrorist activities. By contrast, to secure a conviction for providing material support to a terrorist organization in a federal court, the government must prove the elements of the crime “beyond a reasonable doubt.”

Not only does the Alien Terrorist Removal Court require less evidence, but it also permits the use of lower quality evidence that could be excluded in a criminal case. The court explicitly allows the government to use “the fruits of electronic surveillance and unconsented physical searches” without the same opportunity to object that is afforded to criminal defendants. Furthermore, the Federal Rules of Evidence do not apply in the court, opening the door to the use of hearsay evidence that would not be admissible in federal civil cases, let alone criminal cases.

For classified information, the Alien Terrorist Removal Court in some instances affords green card holders a court-appointed special attorney who may review and contest the evidence on the immigrant’s behalf, without disclosing the evidence to the immigrant. Otherwise, the court generally requires the government to provide an unclassified summary for the immigrant to contest — but the law does not set baseline standards for these summaries, and a summary can be withheld entirely if a judge concludes that providing it would likely cause “serious and irreparable harm to the national security.” Although criminal proceedings permit the government to summarize classified evidence instead of sharing sensitive materials with a defendant, any summary must be “evenhanded” and “provide the defendant with substantially the same ability” to mount a defense. A summary cannot be withheld altogether if the government would like to use classified evidence in a criminal case.

Compounding all this, the government in the Alien Terrorist Removal Court need only carry its lower burden of proof, with lower quality evidence, in the eyes of a single judge at a single hearing. Immigrants in alien terrorist court proceedings, unlike criminal defendants, do not have the benefit of a full trial before a jury.

The court’s procedures do, however, secure several important rights that run parallel to those in criminal proceedings: the right to counsel, including counsel provided at the government’s expense; the ability to introduce evidence and examine or cross-examine witnesses on their behalf; and the right to appeal any removal order. But these rights do little to offset the significant advantage that the government has when alleging terrorist activity in the Alien Terrorist Removal Court instead of bringing a terrorism prosecution in criminal court.

How are the Alien Terrorist Removal Court procedures different from standard immigration removal proceedings?

Some aspects of removal proceedings in administrative immigration courts are more protective of immigrants’ rights than the Alien Terrorist Removal Court, while other aspects make it easier for the government to secure a removal order. Perhaps the most important distinction between the two systems is that the government must meet a higher evidentiary standard in immigration court than in the Alien Terrorist Removal Court. In standard immigration proceedings, someone admitted to the United States can only be removed with “clear and convincing evidence,” or enough evidence to show that the government’s position is “highly probable.”

On the other hand, immigration courts are part of the executive branch, and their limited independence has been stripped away by the current administration, including by mass firings of immigration judges. In contrast, Alien Terrorist Removal Court judges are part of the judicial branch and serve lifetime appointments meant to guarantee independent judicial decision making.

Today, the government’s ability to use classified evidence in the Alien Terrorist Removal Court is less of a defining feature — and less of a unique imposition on immigrants’ rights — as compared to other courts. Under current immigration court rules, immigration judges can also rely on classified evidence, notwithstanding immigrants’ statutory right to examine the government’s evidence against them. Under that law, national security information cannot be seen by some immigrants, but permanent residents or other lawfully admitted immigrants challenging their deportation are not precluded from seeing national security evidence. Even so, the modern immigration court procedures do not even require the government to disclose or summarize the classified evidence for immigrants. These procedures have not been widely tested, however, and some courts have held that secret evidence cannot be used to justify immigration detentions.

Additional aspects of the Alien Terrorist Removal Court and administrative removal courts are the same. Both apply the immigration law’s definition of terrorist activities, and the Federal Rules of Evidence do not apply in either proceeding. And although any immigrant can in theory challenge their detention in immigration court, in practice immigration judges are extremely deferential to government assertions of national security risk.

How does the Alien Terrorist Removal Court square with the Trump administration’s other deportation efforts?

The administration’s novel use of the court is one of several measures it has tried to speed up deportations at the cost of immigrants’ due process rights. Shortly after taking office, President Trump invoked the Alien Enemies Act of 1798 — a wartime law used to intern 31,000 noncitizens of Japanese, German, and Italian descent during World War II — in an attempt to summarily deport Venezuelan immigrants who it alleged were members of a criminal gang. The administration also broke from decades of practice in adopting a novel interpretation of immigration law that would allow it to channel tens of thousands of immigrants into expedited removal processes.

Why is the administration using the Alien Terrorist Removal Court now?

With only one case in the court, it is too early to be sure how extensively the administration intends to use it, but some of the administration’s high-profile deportation efforts have run into headwinds. The Supreme Court halted the administration’s deportations under the Alien Enemies Act and ruled that immigrants are entitled to challenge the administration’s peacetime invocation of the law, as well as its accusations of gang membership. The administration’s unprecedented use of expedited removal has swamped federal courts with habeas corpus petitions, most resulting in losses for the government. The controversial procedure is likely headed to the Supreme Court. The administration has also ramped up deportations to countries to which immigrants have no ties, including those with spotty human rights records, using an expedited process that eliminates the right to appear before a judge. A federal court blocked the move, although an appeals court later allowed the practice to continue during litigation.

Although the Alien Terrorist Removal Court’s procedural protections make it an unlikely vehicle for mass deportations, it offers features the administration has repeatedly sought: quick proceedings, broad use of detention, and easy removal to countries of the administration’s choosing. It also has a considerably lower standard of proof than either criminal or administrative removal proceedings, has clear restrictions on disclosing classified evidence, and is currently staffed with judges who have shown significant deference to the government in the Foreign Intelligence Surveillance Court context. If the government has relatively little evidence, the evidence is weak, or it was obtained unlawfully, proceeding in the Alien Terrorist Removal Court may be an attractive option.

Further, the novelty of the court may itself be a draw. If the administration can secure a deportation through it and establish favorable precedents for the court’s use, it may treat the court as the next frontier in its controversial push to reclassify drug cartels as terrorist organizations and target immigrants based on thin evidence that they, their spouses, or their children are gang members.