The Rabbit Hole: The Rip Van Winkle Court

Editor’s note: In Washington Irving's famous story, after a night of heavy drinking, Rip Van Winkle wakes up to discover he’s been asleep for two decades and the world that was before his long slumber has completely changed. Irving’s protagonist finds himself by the end of the story content with a life of mundaneness, unbothered by the constantly changing political landscape. Through movies and television shows, the story of Rip has been repeated in some form in pop culture since its 1819 publication. But very seldom is there a real-world example that parallels the fictional story. 

For this week’s The Rabbit Hole, we’ve teamed up with our colleagues at Lawfare to dive into the history, process, and frankly weird quirks of a federal court that has never been used in its 30-year history. The national security and immigration landscape has changed significantly since the Alien Terrorist Removal Court was first formed. After the terrorist attack on Sept. 11, America has created a counterterrorism apparatus and legal framework that would drastically alter how authorities approach threats posed by noncitizens. It’s with that as the backdrop that we think of the nation’s newest, but somehow old, court as it faces its first case. 

Awakened from its long sleep and trying to get its bearings in a country once again reconfiguring its national security apparatus. Though the Justice Department may gamble with the fact that the Alien Terrorist Removal Court could take a similar view as Van Winkle did at the end of his story, noting dispassionately that “the changes of states and empires made but little impression on him." And with that in mind, The Rabbit Hole explores what happens now that Rip Van Winkle’s courthouse is officially in session. - Seamus

Thirty years ago, an eager, twenty-something journalist named Benjamin Wittes walked into one of the United States’ newest and already most secretive courts. Created in April 1996 under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the Alien Terrorist Removal Court (ATRC), Wittes, who was one of a handful of journalists covering the new court at the time, wrote that it was secure and bureaucratic-looking enough to fit into a spy movie. 

It made for an unusual courtroom, with double doors that sealed into the wall at the touch of a button and a single conference table, instead of the usual dais, lectern, and tables for the prosecution and defense. Unlike most other federal courts, it didn’t even have its own building; it was located within the Department of Justice’s headquarters in Washington, D.C. The seals of various intelligence agencies hung in the hallway outside.

But for 30 years, the ominously named court lay dormant, never hearing a case. That was until this month, when a website for the court suddenly appeared with two single-page documents.

The first document was the title page of an application filed by the Department of Justice’s National Security Division to the court: a document so heavily classified that only the application’s title and filing date survived redactions. The second was a two-paragraph order issued by ATRC Chief Judge Joan Ericksen (whose full-time job is serving as a senior judge on the U.S. District Court for Minnesota), which asked the government to provide additional information to the court on its application. The third document, posted a week later on July 23, was the title page for the government’s supplemental materials in response to Ericksen’s request.

News of the court’s inaugural case, which Court Watch reported first, spread quickly. For some, the ATRC’s sudden awakening stirred fears that the court may be used to undermine civil liberties to help carry out the Trump administration’s aggressive immigration agenda. For others, the first case signaled a significant development in national security law—and that prosecutors believed a matter was critical enough to do what their predecessors had repeatedly opted against in invoking the ATRC’s authority for the first time. 

The filings listed on the court’s website became a black box, easy to project onto but impossible to discern due to their classified nature. In the time since it launched, the court’s website has been updated only three times: to update its description “as a special court” to “a specialized court,” to add the title page of the government’s supplemental materials, and to post frequently asked questions (FAQs) about the court titled “Message From the Chief Judge.”

To better understand the possible reasons why Justice Department officials decided to bring a case now, this article unpacks the ATRC’s history, how the court operates, its parallels to another secretive federal court, and why the court may have lain inactive for so long. The outcome of the ATRC’s first case will likely signal whether the Justice Department adds the court to its immigration and counterterrorism toolkits, or lets the court return to its slumber.

Chief Judge Ericksen, through a spokesperson with the U.S. District Court for the District of Columbia, declined a request to be interviewed about the process of standing up a dormant court. 

The Road to an Empty Court

The idea for a “specialized” court to handle immigration cases of suspected terrorists dates back to the waning days of the second Reagan administration. In 1987, agents with the Immigration and Naturalization Service (INS), which was later restructured into the agencies for the U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, and Customs and Border Protection, arrested a group of eight noncitizens living in Los Angeles, who came to be known as the L.A. Eight, for their alleged activity in support of the Popular Front for the Liberation of Palestine (PFLP). 

INS initiated removal proceedings against the eight, citing classified evidence that they had raised funds and distributed literature in support of the PFLP. The immigration judge presiding over the case, however, refused to consider evidence that was not made available to the L.A. Eight. The executive branch, in turn, responded that it could not publicly disclose its classified information. At an impasse, the immigration judge ordered the L.A. Eight to be released. 

In response to the botched effort to deport the eight, the Reagan administration proposed a specialized federal court that could hear classified evidence and weigh whether to deport noncitizens suspected of terrorism. But Congress did not immediately move to establish such a court until February 1995, when then-Senator Joe Biden introduced a bill with President Clinton’s support to create the Alien Terrorist Removal Court. The proposed design for the court—consisting of multiple federal district judges, with a chief judge, and all assigned by the chief justice of the Supreme Court—closely resembled the Foreign Intelligence Surveillance Court (FISC). Also known as the FISA court, the FISC had already existed as a federal court hearing classified matters since 1978. (The ATRC is believed to share the same courtroom as the FISC for nonpublic, classified hearings. The FISC’s courtroom moved to the federal courthouse in D.C. after Wittes’s 1996 visit.)

The bill gained momentum two months later, in April 1995, when domestic extremists Timothy McVeigh and Terry Nichols blew up a federal building in Oklahoma City, killing 168 people. More legislative proposals were drafted to counter the newfound extremist threat, which culminated in the AEDPA that Clinton signed into law roughly a year after the bombing.

Other subsequent events could have underscored both the need to protect state secrets closely during judicial proceedings and to prevent extremists from manipulating the immigration process. In 1997, when a witness testifying in the trial of Ramzi Yousef, the lead plotter behind the 1993 World Trade Center bombing, let slip in open court that the government had been monitoring a cell phone, the terrorist group immediately shut down the cell phone. That same year, two men were arrested in Brooklyn for a plot to bomb the New York City subway system, one of whom was out on bond pending immigration removal proceedings and had filed an asylum application.

The court’s potential importance was raised again in March 2025, when Chief Judge James Boasberg of the D.C. District Court, who served previously as the ATRC’s head judge, pressed Justice Department officials over having never filed a case to the court: “In fact, Congress has an answer for us, doesn’t it? Because they created the Alien Terrorist Removal Court.” The exchange took place during a contentious hearing over whether the Trump administration had improperly invoked the Alien Enemies Act to send hundreds of noncitizens to a maximum security prison in El Salvador. Boasberg continued, “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 Justice Department, however, never filed an application to the ATRC. From 1996 until this month, the chief justice consistently assigned five federal judges to serve on the court, but they never heard a case. All those years, the Justice Department and public largely overlooked the ATRC, except for the odd article in a national security law review every few years. 

Former U.S. District Judge Alfred Wolin, who was one of the first five judges assigned to the court, told NOTUS this month that he recalls a high-ranking court official explaining that the ATRC never received a case because “the FBI blocked any cases being sent to us.” 

“As far as I was concerned, it died,” Wolin said.

A Court Without Cases

Any reports of the death of the ATRC, however, were greatly exaggerated because on July 15, the Department of Justice’s National Security Division filed the first application to the ATRC. Thus began the first of a multi-step process that could lead to public hearings and the removal of a suspected terrorist.

Here’s how that process is supposed to work, according to the AEDPA. Per statutory requirements, the attorney general or deputy attorney general has to certify that the government’s application to the ATRC establishes probable cause that the defendant is an “alien terrorist” and that traditional immigration removal proceedings pose a national security risk. The next step, which is where the process appears to be now, is for a single ATRC judge to determine whether the application establishes probable cause for all three factors that the defendant is a) a noncitizen, b) a suspected terrorist, and c) an imminent national security risk. All of this takes place with just the government and the judge present; almost all records are filed under seal. The government can appeal an ATRC judge’s decision that an application lacks probable cause to the U.S. Court of Appeals for the District of Columbia Circuit.

If the ATRC judge agrees that the government met its burden for probable cause, a warrant is issued for the noncitizen’s detention. If the defendant is a lawful permanent resident, the noncitizen is entitled to a release hearing before an ATRC judge pending the removal hearing. The defendant is advised of a general account of the charges against them and notified of the time and place of the removal hearing. He or she is also entitled to a free lawyer who is a member of the Criminal Justice Act and who has security clearance.  

Then things get tricky. If the government seeks to introduce classified materials into evidence against the defendant, which the defendant will not be able to examine, the government must submit an unclassified summary of the classified evidence for the defendant’s review. The government turns over both the classified evidence and the unclassified summary to the judge, who determines whether the summary is “sufficient to enable the alien to prepare a defense.” If the judge deems the summary adequate, the evidence can be used against the defendant in a removal hearing. 

If the judge finds the summary inadequate, the removal hearing doesn’t go ahead. However, the government doesn’t have to produce a summary in cases in which the government establishes that both the noncitizen’s continued presence and the disclosure of the unclassified summary “would likely cause serious and irreparable harm to the national security or death or serious bodily injury to any person.” In these “irreparable harm” cases, the government can move forward to introduce the classified evidence, without ever disclosing its nature to the defendant, in the removal hearing.

At the ATRC removal hearing, the defendant has most of the rights of a traditional criminal defendant, including the right to be present, subpoena power, to present their own evidence, and cross-examine the government’s witnesses. If the noncitizen is a lawful permanent resident, the ATRC judge must appoint a defense attorney—at the government’s expense if necessary—who possesses a security clearance and can review some of the classified materials. The punishment for a “specially appointed attorney” with a security clearance who reveals the classified information to the defendant is a steep 10-year mandatory minimum prison sentence (or a fine). Noncitizens who are not lawful permanent residents are not entitled to the same “specially appointed” defense attorney but may hire one or get a pro bono attorney.

For this piece, we spoke with half a dozen legal experts and attorneys, reviewed far too many academic journals and law briefs, and almost convinced a judge on the court to talk to us about process. In any other news site, this story would be behind a paywall to reflect the time and resources required to produce it. But it’s not today because we’re bad at business but love reporting. Support our independent journalism, upgrade to a paid subscription or drop a one-time tip.

The noncitizen and their defense attorney can challenge evidence through the nonclassified summary (although it’s not clear how such a challenge would play out in practice). The defendant and their attorney, however, cannot attempt to suppress evidence for being illegally obtained, as with Fourth Amendment challenges in traditional criminal proceedings. The Federal Rules of Evidence also do not apply. 

Despite the cloak-and-dagger nature of the proceedings so far, the removal hearing is open to the public at the E. Barrett Prettyman United States Courthouse in Washington, D.C. The statute provides for it to be scheduled “as expeditiously as practicable.” The hearing begins with the government’s case against the defendant. After that, the noncitizen can put up their own evidence. The government then should have an opportunity for rebuttal to close out the removal hearing. The government has to meet a “preponderance of the evidence” standard that the noncitizen is “an alien terrorist” for the noncitizen to be deported, lower than a traditional criminal court’s evidentiary standard for guilt—proof beyond a reasonable doubt. 

After the hearing, the ATRC judge should issue a written order explaining the court’s ruling. Both sides can appeal the ruling to the D.C. Circuit. An appeal is automatic if the noncitizen was not provided a summary of the classified evidence. The direct appeal to the D.C. Circuit is an expedited review process compared to appeals in traditional immigration courts, which go through the Board of Immigration Appeals before ending up in a regional federal court of appeals. Removal is paused until the appellate process is completed.

But almost all of this, of course, has never happened before.

“Secret” Courts

A week after the ATRC received its first case, on July 23, Chief Judge Ericksen published a brief message with a list of FAQs in an attempt to respond to the increasing number of media inquiries to the court. One question asked, “Is it a secret court?”

Ericksen responded that it was not, citing the public nature of the court’s “existence, makeup, and procedures” (which begets the question of whether there are courts whose existence, makeup, and procedures are not publicly known). But the ATRC closely models another court whose process is shrouded in secrecy despite its existence and procedures being very much in the public eye: the FISA court.

The FISA court was established in 1978 to hear classified applications for government surveillance. The chief justice selects its 11 judges to serve seven-year terms. The ATRC followed so closely after the FISA court that Congress intended for the five ATRC judges to come from the same pool of FISA judges. Currently, all five judges on the ATRC have served on the FISA court for at least two years, although the statute doesn’t formally require such overlap.

For years, civil libertarians have been critical of the FISA court for its secret proceedings and perceived lack of pushback against the government. Its classified hearings and the applications submitted to the FISA court rarely become public. From 1978 until 1996, the FISA court approved all of the government’s 8,827 requests for surveillance. Its appellate court, the FISA Court of Review, never convened. 

In June, Congress failed to reauthorize FISA’s section 702, the statutory authority the government uses to bring many of its applications to the FISA court, in part, because of tensions over how rigorously the FISA court reviews government applications. Section 702’s critics argue that the FISA court lacks transparency and meaningful oversight from Congress or lawyers outside of government. Its proponents, on the other hand, point to the court’s reforms and the FISA judges’ past willingness to publicly criticize the government for cutting corners on FISA procedures. The FISA court has begun to reject some applications.

Supporters of the ATRC similarly highlight the FISA court’s expertise handling classified government applications to assert that the same judges, sitting in their position on the ATRC, will preside fairly over the process. But while the surveillance applications to the FISA court are kept under lock and key, what it reveals has to be disclosed later to the criminal defendants who face charges related to the surveillance. Classified materials submitted to an ATRC judge may never see the light of day.

So, Why Not Before?

Two decades ago, the 9/11 Commission’s staff report found that the Department of Justice had reviewed at least 100 cases for a possible application to the ATRC. Yet no applications were filed of the 100, or for the likely dozen cases to come during the Global War on Terror. The report attributed the inaction to “internal Justice Department deliberations” that appeared to be “overwhelmed” and “stalled” because of the ATRC’s “procedural complexities.”

Some of the court’s proponents, such as Aram Gavoor and Timothy Belsan, have argued the Justice Department and FBI may have been reluctant to introduce classified information without the confidence that the case would be a precedent-setting slam dunk. They point to the ATRC’s requirements to be able to introduce classified evidence without a summary for the defendant as being a high bar: The government has to prove that both the noncitizen’s presence and the disclosure of the summary would each “likely cause serious and irreparable harm to the national security or death or serious bodily harm to any person.” That standard of “serious and irreparable harm,” however, doesn’t appear in any terrorism provisions in the U.S. Code, or in any relevant court decision.

The summary itself, according to Gavoor and Belsan, also poses challenges for the government. A former high-ranking Department of Justice official reportedly told the pair for their 2020 law review article

The Department of Justice did not respond to a Court Watch request for comment in time for publication but told CNN that “This Department of Justice will use every tool available to bring alien terrorists to justice and remove them from the United States, including this court established by Congress in 1996.”

Meanwhile, the ATRC’s critics have argued the court is unconstitutional under the Fifth Amendment and cited evidence of “secret courts” being more inaccurate than courts in which the prosecution and defense have equal access to information. As John Niles writes in a 2008 law review article, noncitizens have a sliding scale of constitutional rights based on their lawful status and time spent in the United States, with lawful permanent residents entitled to greater legal protections. Niles, however, argues noncitizens besides lawful permanent residents often have just as many ties to the community and liberties at stake as legal status holders, and contends Congress should extend the same special-attorney safeguard to them to avoid a constitutional challenge.

But the Department of Justice had another fundamental reason not to seek removal from the ATRC: its foremost duty to enforce the law. If federal prosecutors suspected a noncitizen of terrorism offenses, their first inclination is not likely to remove the citizen, but to prosecute and detain them in a federal prison, where officials can guarantee the threat is contained and that the noncitizen won’t try to re-enter the country. And under anti-terrorism laws expanded in the wake of the Sept. 11 attacks, including the USA PATRIOT Act, the scope of terror-related conduct was expanded. 

Justice Department officials likely saw a conviction for material support to a foreign terrorist organization as much more preferable than navigating a new court and its procedural pains, especially as Congress twice expanded the geographic scope of the material support statutes after Sept. 11. Meanwhile, traditional immigration courts still existed for noncitizens accused of lesser conduct or for cases that did not entail classified materials.

Why Now?

So, why did the Department of Justice decide to give the court life for the first time after 30 years?

First, the culture inside the Justice Department has shifted. There is more of an emphasis on ridding the United States of perceived terrorist threats rather than expending significant tax dollars to prosecute and keep them detained on U.S. soil. The Trump administration has also demonstrated its eagerness to argue novel strategies and to push legal boundaries as part of its immigration agenda. And the administration regularly touts its efforts to deport “Anti-American radicals.” These conditions likely encouraged National Security Division officials to believe they could take a chance on initiating ATRC proceedings without facing much institutional blowback if the case failed.

But the Department of Justice and Acting Attorney General Todd Blanche, who had to sign off on the application, may also feel confident that it possesses the factual predicates to bring such a case. Without knowing more, there are several reasonable guesses about the underlying facts of the case. The defendant is likely to be a lawful permanent resident because of subsequent legislation under the USA PATRIOT Act and the Illegal Immigration Reform and Immigration Responsibility Act, which made it easier for the government to remove noncitizens who do not have lawful status for suspected criminal activity.

The classified information at issue may be derived through FISA-authorized surveillance or from a foreign intelligence service. The government wouldn’t want to burn a successful tool to monitor suspected terrorist activity unless it absolutely had to; the FBI itself might resist participating if it believed the matter could risk thwarting its investigation. Similarly, a foreign government would likely oppose revealing its own intelligence source, or having its officials testify in a U.S. court about its intelligence methods. The ATRC process allows the government to freely introduce FISA and foreign intelligence without notifying the defendant of its nature, unlike traditional criminal courts.

Gavoor, who previously served as senior counsel for national security in the Department of Justice’s Civil Division and now teaches at George Washington University Law School, told Court Watch, “My first gut instinct is that it wouldn’t make very much sense for the Justice Department to invest a major allocation of resources for litigation that is so novel unless there was good cause. The court didn’t even have a website before it was filed.” 

Gavoor continued, “That would lead me to conclude, because there is a FISA-similar reason, that the target of the case is in national security parlance a very bad guy, not just a bad guy.”

Judge Ericksen’s order requesting additional information from the government, and the Department of Justice following through in supplementing its application, appear to indicate that both are giving the ATRC’s first case the scrutiny it deserves. One curveball, however, could be if the Trump administration seeks to use the court as part of its strategy to crack down on left-wing activity, which some U.S. intelligence officials dispute the need for and allied countries have resisted embracing.

Answers about the case’s contents and its likelihood for success may be on the horizon. Gavoor told Court Watch, “This is a fast-track court. We’re going to know more within weeks or months, and certainly the entire matter will be entirely adjudicated at all of the appellate stages, presumably within a year.” 

Judge Ericksen will rule imminently on the Department of Justice’s first application to the ATRC. If she rejects the application, the Justice Department will have to decide whether to appeal to the D.C. Circuit. If, on the other hand, the application is accepted, the court will have its first public hearing in its history.

The ATRC was always an afterthought. When Congress debated the AEDPA, which established the court in 1996, Wittes reflected that legislators and the press “largely ignored” the court. “The Bluebook,” the standard citation manual for the legal field, didn’t even have a citation for the court. (A law student, Luke Frisco, recently suggested one following the news of the court’s revival: ATRC.) 

“Secret courts require great faith that the Justice Department—and future Justice Departments—will act with integrity,” Wittes wrote in 1996. “In the absence of more openness, nobody outside the national-security establishment will know how much freedom the secret court structures really cost,” he continued.

Now surfacing for the first time, the ATRC will have to determine for itself if it will become a major new instrument for national security cases or return to its long slumber. 

-30-