The Just Security Podcast

Uncharted Territory: The Alien Terrorist Removal Court Hears Its First Case

• Just Security • Season 1 • Episode 141

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Host Dani Schulkin is joined by Steve Vladeck and Jess Dawgert to discuss the first-ever case before the Alien Terrorist Removal Court. They explain what the court is, why it sat unused for thirty years, and what its first case means for due process and the immigration system.

Show Note (related articles and links): 

And for all of Just Security's coverage of immigration, see:

SPEAKER_01

The Justice Department has activated a never-before used court to try to deport a 47-year-old woman and lawful permanent resident living in Texas, who they say is a supporter of the Islamic State. The court is called the Alien Terrorist Removal Court, and Congress created it in 1996 to give the government a way to remove non-citizens they say are terrorists, particularly in cases where the government's evidence is classified and, in their view, too sensitive for the regular immigration system. But no administration has ever filed a case. That changed this past month, and late last week, this court held its first ever public hearing. I'm your host, Danny Shulkin, and I'm joined by two people who have thought deeply about this court. Steve Vladik, professor at Georgetown Law, who has been writing about this court for years, and Jess Doggard, uh founding partner at Ariella Lake Law and Consulting, who spent nearly two decades at the Justice Department on Immigration Matters, including as Associate Deputy Attorney General on the subject. Both have written about the court for just security. You can see those pieces in the links in our show notes. But first I want to just start with the basics and lay the groundwork. Steve, what is the Alien Terrorist Removal Court and why has it been a curiosity of yours in particular for so long?

SPEAKER_00

Sure. So the Alien Terrorist Removal Court, sometimes called the ATRC, because we love our initialisms, right? As you said, it was created by Congress in 1996 as part of the Anti-Terrorism and Effective Death Penalty Act or EDPA. And, you know, it was it's been a curiosity of mine, Danny, because I'm always interested in when Congress creates specialized courts, especially in the national security space. You know, the only other real example of this we have is the FISA court, the Foreign Intelligence Surveillance Court, which Congress created in 1978 and which the ATRC is at least somewhat modeled on, because it's a fascinating study in Congress trying to basically reach a structural compromise, in trying to provide meaningful judicial review on the one hand, while also trying to accommodate the government's real or at least stated interest in preserving and protecting national security and in particular class side information, on the other. And so, you know, the question is how can Congress do that? Can it do it well? Can it do it constitutionally? Um, it really is an interesting institutional design question, even before you get to the harder questions about individual rights. And so I guess, you know, as someone who started my career 22 years ago, writing at the intersection of national security law and the federal courts, the ATRC was an obvious example. Um, you know, we had lots of debates 20 years ago about so-called national security courts and whether we needed them to deal with the immigration and military detention and criminal prosecution issues that arose out of the war on terrorism. Well, the ATRC is a national security court and was specifically designed to be one. Um, and so I guess I've always been sort of fascinated by what lessons it has for us on the virtues and vices of such a you know sort of split the baby uh judicial adjudicative mechanism.

SPEAKER_01

It certainly has been a long time coming. Uh Jess, uh anything to add? And uh I know there's been there's just so much movement in the past few weeks after laying dormant for so long. Can you walk us through what exactly has happened over the past few weeks and even late last week?

SPEAKER_02

Yeah, sure. So we learned about the use of the ATRC a couple weeks ago when all of a sudden um it was activated basically overnight. And we um it was kind of leaked, and there was all of a sudden a website created. Uh, there was nothing before explaining the court. And so we knew that an application had been filed, right? So we that's all we knew was an application had been filed. We didn't know the identity of the person, we didn't understand why that person was being brought in the ATRC versus ordinary removal proceedings or criminal proceedings. Um, and so we were kind of on hold. Um, what we did know was that there was an order from the court, basically the day after the um application was filed, that said, I've received the application, I heard argument from the parties or from the government, and I'm not quite convinced that there's enough here. And so she sent the application back to DOJ, which is fairly remarkable, frankly, because if the DOJ was going to start this court, you would think they would have all their ducks in a row and really bring the best case they could to start. But the judge said, no, try again. Uh, bring some more evidence, information, something to me. And they did. They had about a week, they brought it. We all sat around waiting. And turns out uh the judge did issue an order granting the application. And so that order was granted um on the 27th of July. So last week. And what it said was um also pretty remarkable. It said, okay, the government met its burden, which is a pretty low burden, a probable cause standard. It met its burden to justify an application, can start this process. But it's a low burden and the ultimate burden in the case is gonna be a lot higher. So, government, you may have met this step, but just know that the next step is gonna be harder. And that's how I read the orders. It really signaled that the court was going to consider more information or need more information going forward.

SPEAKER_00

And it might, I mean, Danny, it might be it might be useful to take a second just to talk about the judges, because I think that's gonna be a big part of the story. So, you know, Jess mentioned the judge, it's Chief Judge Joan Erickson, um, who, you know, was um still is a senior district judge in the District of Minnesota, but who also, like all of the other four judges on the ATRC right now, has some experience on the FISA court. Um, and like the FISA court, the way the court is staffed is these judges are assigned, not appointed, by Chief Justice Roberts, um, who basically looks at the pool of existing Article III federal district judges and looks for folks who have national security experience. Um, there's a requirement in the statute that the five ATRC judges have to be from five different circuits. And so, you know, Judge Erickson's from the Eighth Circuit from Minnesota. And, you know, I think Jess is exactly right that I think we already have seen lots of suggestions, even in the cryptic orders we've gotten from Chief Judge Erickson to date, um, that she is skeptical of the government's use of this process and that she intends to be a fairly robust and rigorous check on that process. And I think that's an important sort of piece of context, right? That it's a court and that the part of what the compromise is from the government's perspective is subjecting itself to immediate review by an Article III judge like Chief Judge Erickson, right, as opposed to an immigration judge who's within the executive branch.

SPEAKER_01

Yeah, I want to get to this point about why the government is using it. But first, uh, Steve, can you talk a little bit more about what Jess said about this burden of proof? Uh, because the statute, as you noted, allows the government to remove someone based off of evidence that person may truly never see. Uh so what is this burden and what does the government actually have to prove?

SPEAKER_00

So, you know, I think Jess already alluded to this, but just to crystallize it, there are really two steps to the ATRC process. The first is, as Jess mentioned, the application. And that's basically the government saying, hey, ATRC, we would like you to be the court that resolves this case. Um, and that's the low burden. That's the probable cause burden, where basically all the government have to show is probable cause to believe that the statutory predicates are satisfied. That is to say, that the individual in question is defined by the statute as a quote, alien terrorist, unquote. Now, um, Jess knows Title VIII far better than I do, but you know, if you peel away all the layers and run down all the citations, there are a lot of different things that can qualify someone as an alien terrorist. And so, you know, that doesn't prove anything about the subject of this proceeding. It's just a sort of basic threshold to get in the courthouse door. Um, once that happens, then the ATRC holds a removal hearing. Um, and the removal hearing is where things get really interesting. And the burden of proof in the removal hearing is, as Jess said, higher. It's a preponderance of the evidence, which, you know, the sort of the one L version of which is 51% of the evidence. Um, that is, you know, certainly a higher burden than probable cause. It is a meaningfully lower burden than the clear and convincing evidence standard that is used in lots of other immigration proceedings. Um, and so, you know, I mentioned that one of the sort of compromises on the government side is letting an Article III district judge be the one who does all of this. One of the real benefits to the government is that its ultimate burden of proof preponderance is not nothing, but it is lower than in a standard removal hearing. And then we get to the sort of the messier questions of and the evidence, you know, how how the government can use evidence and what they do and don't have to share with the subject andor their lawyer.

SPEAKER_01

I know you both have concerns about the use of this court. Can you talk a little bit more, maybe just starting with you, about some of the due process problems or even constitutional issues? And then Steve, I'll have you add in.

SPEAKER_02

Yeah. It it gets a little messy once you get into what the court is going to look like and how these proceedings are gonna go for a bunch of reasons. One is the statute lays out uh the statute setting forth like that created the court, lays out a bunch of ways that protects the classified information that might be used in these proceedings, such that the non-citizen or the respondent in these cases doesn't get access to the classified information themselves. There's a potential that their attorney might get access to it. There's a potential that they are as a special attorney assigned to get access to the classified information, but it's very restricted as to whatever classified information is presented as to who gets to see that, which is really kind of the basis of these cases. Because if there wasn't classified information to use, it's presumed that they wouldn't use this court. Um, one of the benefits is that they get to use the classified information against someone who's a lawful permanent resident and not have that person see the evidence. Um, so the benefit of it is that they get to use this classified information, but it's very restricted. So you can imagine putting together your case and your defense, but not actually knowing the evidence that you're going up against. And that's really scary. Um, and kind of contrary to all of our principles of due process in this country. So that is a humongous red flag and concern that I think everyone has. I do think that there is some um silver lining bright spot here. There was an initial hearing last week on the case where the government brought in the respondent and um presented her to the court. And it was kind of an initial status hearing to kind of figure out what steps were next. And at the beginning of that hearing, Judge Erickson asked the government to explain to the respondent why she was there in very plain terms that she could understand. Now, she doesn't speak English. Um, from all we can tell, from the few pleadings that have been posted online, she's not literate. And so she was the government was required to explain to her exactly why she was there and really kind of give her an overview, um, which did provide a little bit of reassurance that the judge understands that there needs to be some level of due process and knowledge.

SPEAKER_01

Steve, uh, I know you've noted some due process and constitution constitutional issues. Can you walk us through those?

SPEAKER_00

Yeah, I mean, I I think you know, Jess already touched on on the big one, which is, you know, can you be removed from this country by dint of a judicial proceeding based on evidence you never saw? Um and, you know, I think there are a lot of folks who think that the answer to that question will always be no, um, in which case you have something of an intractable due process problem. The statute, at least in the case of lawful permanent residents, including the subject of the first hearing that we're that we're talking about, um, has a bit of an extra procedure where there's something called a special attorney who is required to be assigned. Um, I mean, the statute's very sort of careful to not say to represent the subject, because that creates attorney-client obligations that a special attorney might not be able to carry out, um, but really to sort of serve as the sort of special advocate testing the government's evidence. Um, right, the the subject still receives an unclassified summary of the evidence, but now you have a lawyer who sees the classified stuff too. And so I think there are sort of two levels of questions here. One is does the presence of a special attorney do enough to mitigate those due process concerns? That is to say, if there is someone whose job is to be adverse to the government and contesting the government's factual proffer, um, is that sufficient if they can't actually talk to the defendant or the subject about the evidence? Um, and I think the broader piece, Danny, is and failing that, um, is the judge enough? And I think this is really the messy question because, you know, we could imagine a district judge who was highly skeptical of this entire enterprise using their authority in this process to be a very, very robust um, you know, skeptic of the government's evidence, to scrutinize the evidence carefully, to demand more, as Chief Judge Erickson already has. But we can also imagine a judge who's not quite as critical and skeptical. Um, and indeed, some of the criticisms of what we learned about the FISA court in the early 2010s was that a lot of the FISA judges had not been especially skeptical of the government's proffers. And so for me at least, Danny, right? Part of the problem is that unless you think the whole thing was unconstitutional, and there are people who do, I think a lot depends on the judge and on just how much the judge does to look out for the interest and the rights of the subject who can't necessarily be fully involved in the proceeding themselves.

SPEAKER_02

Sorry, Danny, but you you mentioned Steve, the the special attorney. Um, and I think that that's a really important distinction in this case than kind of any other case, right? The the removal proceedings has nobody else looking out for anybody. There's not even a right to count, there's a right to counsel, but not appointed, or at least here um the respondent gets appointed counsel. Um it's unclear to me whether that special attorney can also be someone on the respondent's uh attorney team. Um it looks to me from the statute that maybe that's not how it's set up. From a comment that Judge Erickson made at the hearing, it sounds like maybe she thinks his her attorneys may be serving as special attorney in this case. Um who the special attorneys are, we don't know because the statute requires a panel that we don't have.

SPEAKER_00

And just to say, I mean, so so we have a little bit of experience on the FISA side, right? So one of the Snowden era reforms to the FISA court was the creation of what's known as the special the special advocate or the amicus. Um, right. And one of the things that came up there was you have a really it's very tricky to have a lawyer who would be somehow representing one of these individuals if they can't talk to them. Um, or at least if they can't, right? That state ethics rules would actually get in the way of an attorney-client relationship in those spaces, which is why the special attorney in the statute tries to split that difference by saying, well, I'm not necessarily their lawyer, but I'm the person adverse to the government. This comes back again to the judge, right? And why I think so much of how robust a process this is depends upon, you know, the judge managing it and not just this the special attorney in the process. Um I'll say one last thing though, and this is where I think Jess's experience far surpasses mine, but um, I think also it's worth reminding folks that ordinary removal proceedings are not criminal trials. Um and so, you know, folks I think are inclined to view the baseline against which to compare the ATRC as well, usually you get all of these things in a criminal trial. Yeah, but not in an ordinary removal proceeding. Um folks might be surprised to learn how procedurally short, um uh uh uh lacking uh the typical removal proceeding is compared to a criminal case. And so so I think the question is how much worse is this than that? Not how does this compare to a criminal criminal prosecution?

SPEAKER_01

Yeah, I'd like to go into that point a little bit more. It because in both of your pieces, you write that this court could actually be more productive, as you said, Steve, than the standard immigration process, at least in some ways, at least in some cases. Um, Jess, do you want to take walk us through this point a little bit more? What do you want to see coming out of this court?

SPEAKER_02

Yeah, so immigration proceedings for those who are, you know, not shopping that closely is um it's a civil proceeding, it's administrative. So it's not in the exec, it's not, it's all in the executive branch. There's no Article III judge, there's no appointed nominated judge. Um they're only the immigration judges are appointed by the attorney general. Um and there's no real confirmation process like there is. There's no um the job, the job description is like any other civil servant. So there's no qualifications that need to be met other than what's listed in the job description. Um immigration courts are sometimes public, sometimes not. That's up to the immigration judge's discretion. Um, the federal rules of evidence do not apply in immigration court. They can basically accept any evidence they want and consider it however they want to consider it. So hearsay evidence, uncorroborated evidence, evidence that's not certified. Um generally there has to be a translation if it's in another uh language, but that's really kind of it. And so there's not a lot of protection as to what can be produced against someone or even in their own defense or guidelines. Um federal courts have a lot of guidelines, right? There's there's a lot in there, there's federal rules, and even though the federal rules of evidence don't apply to the ATRC, there are a lot of other rules that could. And the ATRC has to create its own rules. It hasn't done that yet because it's just starting out, I guess. But um, at some point I assume there will be rules. And if you look at some of the other independent courts, they have robust rules. They talk about how to submit evidence, how far in advance evidence needs to be submitted, um, you know, if evidence needs to be certified, um, you know, simple things like that that you would think of in normal due process in a real court that don't necessarily happen in immigration court. So I'd like to see that. I'd like to make sure that outside of the classified information that not everyone has access to, what is presented is public, is accessible, is produced with enough time to give everyone notice of what it is.

SPEAKER_00

I mean, just to sort of to piggyback on what just said, I mean, it's also worth saying about the the ordinary process. Um, so you know, it's usually you go to an immigration judge, then the Board of Immigration Appeals, and then you can get an appeal to a federal circuit court, but that appeal is usually fairly circumscribed. The circuit courts don't conduct a novel review of the facts, right? They don't necessarily have our, they're not often in a strong position to reverse like credibility determinations by the immigration judge. Part of why that really matters is because we've seen concerted efforts by this administration in particular to undermine the independence of the administrative judges in the ordinary process. Immigration judges themselves, the Board of Immigration Appeals, too. And so, you know, part of why I think, Danny, folks like Jess and I reacted to all of this not as if it were the star chamber, but as if it actually might be maybe kind of okay-ish, um, is because of how bad things have gotten in the ordinary side of things. And is because, you know, we've seen this administration manipulate the heck out of the traditional process in ways that I think are really problematic to the rights of immigrants and removal proceedings. Against that baseline, this actually, in many respects, I think does look better.

unknown

Yeah.

SPEAKER_01

So this is a secret court that may actually be more protective by virtue of the immigration courts being um extraordinarily underwater and this administration um taking very aggressive assertions of executive power. Um, and that leads me to this big question of well, why is the government trying to use this court? Why are they activating it for the first time now? And I'm not sure if there's an answer to this question, but I would love to know your hypotheses.

SPEAKER_02

Steve, I don't know if you have anything better than I've got, but the best I've been able to come up with is reading through the documents that have been posted. The um ICE Immigration and Customs Enforcement submitted an unclassified declaration in support of the application. And in it, they explicitly said there is no unclassified information that would render this person removable. So the only information that they have that is adverse to her at all is classified information. And that is important because there's a very little sliver of people who are green card holders, who have lawful permanent residency, who in removal proceedings before an immigration judge, the statute says that um they essentially that they would have access to any national security information, that the only people that don't have access to national security information is like everyone else, like people who are at the border or who have never been admitted to the United States.

SPEAKER_00

Or a short term visa.

SPEAKER_02

Or short term visas, yes. Anyone who has an immigrant visa or has a green card should have access. To national security information if presented in immigration court. But in the ACRC, there's the whole procedure where nobody has access to classified information. And if the person has a green card, then they get the special attorney to review that evidence or information. And so it seems to me from the declaration that there's classified information. That's the only evidence that they have. And they have no other way to bring proceedings against this person other than the ATRC if they want to use that classified information and not give her access to it.

SPEAKER_00

So I guess I mean I think there's a lot to commend what Jess just said. My question is not so much why ATRC versus ordinary immigration proceeding. My question is why didn't they charge this person with material support? Because, you know, part of, I mean, there are lots of explanations for why the ATRC has lain dormant for 30 years. I think one of the more cynical ones is that the expansions of the material support criminal statutes took some pressure off of immigration removal proceedings that were based heavily on classified information, because now the government could prosecute folks based on much the same evidence. And in criminal prosecutions, there's a whole sophisticated statutory procedure under CEPA, the Class Lied Information Procedures Act, to govern how that would work. We're not reinventing that wheel. So my real question about this case is why didn't they prosecute her, not why didn't they put her in ordinary removal proceedings? And that I think, right?

SPEAKER_02

Sorry to interrupt you, Steve. I'm sorry, but it has to be the on the burden piece, right?

SPEAKER_00

Because Yeah, but then I mean, and then that so that feeds back into the due process concern, right? So so you couldn't prove to a jury that she actually did provide material support, but you want to remove her on that basis anyway. Like that's that's where we start getting nervous, right? Um the other thing I'll say is, I mean, uh as someone who has spent more time than I care to admit thinking about like court design, um, you never use a big case as the first case. Um, right. So um my favorite example of this is the Yugoslavian War Crimes Tribunal, where the first case was a guy named Disko Tadic, who was basically just a step above a foot soldier. Um, right? They didn't they didn't they didn't the first case was not Karadic or Milosevich. It was some random guy where if things went sideways, say la vie. Um and so I think, you know, if you're the Trump administration, if you're not especially worried about um setting bad precedents, right? If you have a robust view of your entitlement to do whatever you want, um, seeing if you can use this procedure successfully at all, I think has very low negative uh consequences, right? The the worst case scenario is they lose this one case. Um, and the best case scenario is they establish this precedent for going back to this court in additional cases. Now, I will say I think some of the um sort of skies falling takes might be a little extreme in the other direction. There are structural reasons why I don't think the ATRC could be used at a at a large scale. Um, right. And there are procedural reasons why I don't think it could be used at a large scale. And so this is not like the sort of the secret solution to the blockage of the Alien Enemies Act, right? Or to, you know, this is not a mass deportation system. Um it's an alarming, I think, development, but at least so far, I think a relatively limited one.

SPEAKER_01

So in the in the use of this case as the test case, what would then come next? How could the court, maybe they're not doing mass deportations, but who would they be targeting? Who are those big cases?

SPEAKER_00

I mean, so it still has to be. I mean, right, so again, to for the statute to be the remember the two steps. The first step has to be probable cause that the person's an alien terrorist, right? So for the folks who are like, they're going to use this against Mamdani, no. Um not happening. Uh a district judge will laugh them out of court and then sanction them. Um, you know, I worry about sort of the difficult cases Jess is talking about, the folks who would have been entitled to access this information in an ordinary removal proceeding. Um, so the LPRs or the folks on long-term immigrant visas, right, versus everybody else. So that category, it has to be a case where you know the government can't rely on unclassified information. They have to persuade a judge of that. And so I don't know that that's a large class of cases or one the government can sort of create out of thin air. Um, right? It's a troubling class of cases, but compared to everything else going on with our immigration system right now, to me, this is I don't want to say small potatoes, but this is, I think, um getting a lot more attention than places where I think there are more abuses going on.

SPEAKER_01

Yeah, Jess, anything to add?

SPEAKER_02

A little bit, but I totally agree. I think that there is, because it's in a federal court and because there, you know, are federal judges assigned here, I think the risk of expanding this in a political way is much lower. Right. So we saw with um Mohammed Cleal that that that became very political. And obtaining a removal order there was fairly easy for the government because they put him before a judge who was fairly sympathetic and you know, followed the line. Um, I don't see that happening here quite as much. Now, I do have a lot of concern that if they consider indoctrination to be material support to terrorists, whatever level of indoctrination evidence they have, right? Whether it's somebody who sent that told their kids to say certain prayers before bed every day, whatever it may be, if that constitutes material support to terrorism, that is a very slippery slope. And so that could be very scary as to what the next step could be, because the statute is very broad, right? If we were to take a huge look back and see what it all includes, it could include financial contribution to an organization that also contributes to something that may be considered terrorism, right? It could really be very tenuous. And so where that line ends up being drawn, if we start to see more terrorism cases, will be very interesting to watch.

SPEAKER_00

And I'll just one last thought on this, Danny, which is um a lot of the attention has been on the classified information the government doesn't have to provide to the subject. And that is, of course, the huge downside of all of this. The upside is that everything else happens in broad daylight. And I think Chief Judge Erickson has gone out of her way to make sure that's true. Um, you know, there was no requirement in the statute that she stand up a website. She stood up a website, right? There was no requirement that she go out of her way to publish all of these orders. She's publishing all of these orders. Um and so I think, you know, the the one sort of saving grace of all of this is that we will know as much as I think the statute allows us to know, um, not just what happens in this case, but if either side appeals, which the statute authorizes to the DC circuit, um, we'll know that too. Um, the DC Circuit proceeding because it only will be mostly public, if not almost entirely public. And so I think Jess is right that we should be concerned. I think there are reasons to actually not hate this if the judges hold up their end of the compromise, right? If the judges really do see their job not just as sort of enforcing the statute, but as basically playing the role that the ordinary criminal defense or immigration lawyer would play, right, in a context in which they did have access to all the information.

SPEAKER_01

So, Steve, you've also called for abolishing this court. So how do you script that with what you just said?

SPEAKER_00

So, I mean, I I don't we went 30 years without it. And it seems like that's pretty good evidence that we don't need it. Um and I think the the burden should be on the government to defend keeping around an institution um if you only need it once every 30 years, right? Um at the very least, right, if we're not going to abolish it, we should we should think more carefully about the evidentiary choices Congress made in 1996. We know a lot more now about these kinds of cases because there have been hundreds of criminal cases, right? And hundreds of ordinary removal cases since 9-11 that have involved, you know, sensitive national security information in the terrorism space. Um I'm not sure Congress would make the same choices today that it made in 1996. I think we know more about how the judicial review should work now that we've learned, Danny, so much more about the FISA court. Um, you know, there have been reforms to the FISA court enacted since the ATRC was established. We could at least pursue some of those. And so, you know, I think abolition is the easy way out because it's just it takes us off the table. But if we're gonna keep this around, I think we should really be thinking about whether these are the cases in which we really want the government to be able to remove someone without ever having to show them the evidence against them. Um and if the answer is yes, how can we at least tighten the safeguards so that it's not just a matter of who happens to be the judge on the wheel when that particular application is filed?

SPEAKER_01

So it's activated. Judge Erickson is is taking this, what seems to be a very thoughtful approach to these proceedings. Um, I think the big question now is what actually happens next. Jess, can you walk us through what's upcoming, what we should watch, and what to uh watch moving forward?

SPEAKER_02

So the next thing on the docket or to happen in the court will be a custody hearing on August 11th. Um, so that was scheduled last week. Um that will be where she comes back and makes an argument as to why she should not be detained. Now it's important to kind of note she has not been detained until last week, right? She was living her life as a lawful permanent resident. Her son and son-in-law committed a crime and were convicted over a year ago. Um, and they and she wasn't, you know, caught up in any of that. She was never arrested during that time. She was never charged with anything. And so the thought that she was just, you know, going on with her life and then all of a sudden has been brought into custody and charged with this terrorism-related offense is life-altering for her. And so she has the opportunity to seek release and and release out of custody in a bail hearing. It'll be really interesting to see what the judge does with that, right? That she has the respondents been living out in Texas for years, um, even since her son committed this crime. And so does she really pose a danger to the community? Is she really a flight risk if her family is all in Texas? We don't know. And so that'll be interesting to see what is kind of proven there. Um, and it'll be interesting to see what her attorneys, who are currently federal defenders that have been appointed, will argue. Um, my inclination is that they're going to argue that the court is unconstitutional and she shouldn't be in court at all and therefore should be released. And so how the judge approaches that and really grapples with the constitutionality of the court will be very interesting to see. I anticipate there will be some level of arguments heard on the 11th, and then the judge will ask for some level of briefing and that it'll be, you know, a week or two or three before we really hear anything.

SPEAKER_01

Steve, is the court constitutional?

SPEAKER_00

Um I think on its face, it probably is. Um, but I think it is very hard to accept at face value the notion that it's constitutional to remove someone from the country, especially an LPR who has due process rights approaching that of citizens based on evidence they never get to see. Um and so, you know, I think the the question really is not is it constitutional on its face? The question is, is there a way for the proceedings to unfold in a way that will fully protect the due process rights of the target? Um and we have no examples on which to base that analysis. So, you know, my gut reaction, Danny, is maybe. Um, but again, and just to beat a broken horse here, it depends on the judge. You know, I due process, as you guys know, is elastic. It's not a, you know, you get exactly this, and if you get that, you're done. And I think the question of whether these proceedings are legitimately fair from the perspective of the target is really very much a question about how much the judges put the government through its pieces. Um, you know, if we if you imagine a judge who is skeptical of the government, who holds the government's feet to the fire, who reviews the evidence carefully, and who then makes all the relevant findings, you know, then I think the the then the question really is just is the preponderance standard constitutional? Um and you know, my own view is probably, um, or at least that this Supreme Court will say probably. Um, but there's enough reason for concern that, you know, multiple administrations have never wanted to test test it. And we should be worried that the Trump administration is testing it. But again, I think it comes back to how much do you trust the judges in the room.

SPEAKER_01

So we are in uncharted territories. Umks to Steve Vladick and Jess Doggart. You can read both of their articles on the Alien Terrorist Removal Court at Just Security with the link in the show notes. Uh, we've also linked the court's newly created website, which Jess mentioned. We will keep following this case uh as it unfolds. This podcast was hosted by me, Danny Shulkin, and produced by Daniel Hojhnaki. With help from Pooja Shah, you can listen to this episode wherever you get your podcasts or watch it on Just Security's YouTube channel. Additional resources for further reading are linked in today's show notes. Thanks for listening.