More than 15 years since its creation – and a decade after 9/11 – a special court for deporting suspected foreign terrorists has never been used.
Since 1996, five federal judges have been regularly appointed to sit on the Alien Terrorist Removal Court, a court most people have never heard of.
The court has no budget or staff, though the clerk of the U.S. District Court in Washington will serve that role if needed. But legal observers, attorneys and even the judges appointed to the court wonder if that will ever happen.
"I guess I’m still on the court, though I’m not too nervous about being called to active duty," said U.S. District Court Judge David D. Dowd, one of the court's original sitting jurists. "Our court has suggested that Congress should just abolish the court if it's not going to be used, but no one has taken the bait on that issue."
The terrorist court is just one of a few unused – and potentially unconstitutional – counterterrorism laws that remain on the books. Created by Congress in the aftermath of the World Trade Center terrorist attacks in 1993 and 9/11, these legal vestiges may have run their course, been rendered useless by other laws or were never necessary.
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Other examples of unused counterterrorism laws include a provision of the USA PATRIOT Act related to the detention of foreign nationals suspected of terrorism and an amendment to the Foreign Intelligence Surveillance Act. The amendment gives the government the power to spy on foreign students, tourists and other temporary visitors to the United States without linking them to a foreign power.
The three laws all could be struck down, possibly making the government wary of their use, said Stephanie Blum, an adjunct law professor at Michigan State University and author of a Lewis & Clark Law Review article that examines the three unused laws. She described the scenario as "use it and lose it."
Blum said the unused laws might need to be re-examined and, in some cases, either broadened to help address potential security gaps or eliminated as unnecessary.
Yet, some judges see no harm in having dormant laws on the books. U.S. Department of Justice officials have argued [PDF] that they are important enforcement tools that need to be at hand if needed.
Others, such as civil liberties advocates and legal scholars, argue that the government has other ways to remove from the country or prosecute foreign nationals with suspected terrorist ties.
“If a law sits on the books for 15 years without ever being invoked, it’s a pretty damning case against the government’s assertion that it’s a necessary tool,” said David Cole, a law professor at the Georgetown University Law Center. “We shouldn’t have laws on the books that empower the government to put people’s constitutional liberties at risk where there hasn’t been an established need.”
Allen Weiner, a lecturer at Stanford University's law school and former State Department attorney, said there is no mechanism that allows for housekeeping and review of laws that have fallen into disuse.
“The bigger problem with having laws that are not used is simply the tremendous challenge in administering the law,” he said. “It’s a waste of time to write reports on laws that Congress has lost interest in as well.”
But Gregory McNeal, a law professor and national security expert at Pepperdine University, said civil liberties actually could be protected by having laws that describe such provisions rather than secret legal opinions that do not get public scrutiny.
“Transparency is the most important thing we can ask for here,” he said.
Terrorist court not in demand, forgotten
While some counterterrorism laws might be controversial, the terrorist court is simply forgotten. Officials with the Homeland Security and Justice departments had little information readily available about the court.
Yet the court, created by a 1996 anti-terrorism law, was one of the Justice Department’s top counterterrorism legislative priorities in the mid-1990s, according to a 9/11 Commission study.
The purpose of the terrorist removal court was to enable the government to deport suspected terrorists while using – and protecting – classified information, which couldn’t be done in other venues.
The deportation cases would be heard by a federal district judge instead of an immigration judge. Unlike immigration court, the terrorist court allows the suspected terrorist to have a court-appointed attorney. Classified information could be shared only with the foreigner's attorney, but not the accused.
Designated by the chief justice of the U.S. Supreme Court, judges sit for five-year terms. They are not paid extra for being on the court and carry regular caseloads in their respective districts, said Karen Redmond, a spokeswoman for the Administrative Office of the U.S. Courts.
In a meeting shortly after the court's creation, Justice Department officials told the judges that they expected to file about 30 cases, said Dowd, one of the original jurists.
The judges met to discuss, establish and adopt rules for the court, which are still regularly published. But by a second meeting, officials already had started to back off, Dowd said.
In the four years after the court’s creation, the Justice Department identified 100 potential cases for the court but ultimately rejected them all, the 9/11 Commission study found.
In a 2002 report to Congress, the Justice Department wrote that it had “devoted substantial resources to the task of identifying and evaluating cases” to bring before the removal court, but it hadn’t identified one.
The department also said the court was intended to be low volume, as most suspected foreign terrorists can be removed without the use of classified evidence.
In fact, the government rarely seeks an immigrant’s removal from the country on national security grounds, with only about 360 cases in the decade after 9/11, according to an analysis by the Syracuse University-based Transactional Records Access Clearinghouse.
Janice Kephart, who served on the 9/11 Commission staff, said bureaucratic wrangling within the Justice Department and redundancy in terrorism laws kept the court from getting off the ground.
“They were second-guessing each other constantly,” she said. “(The terrorist court is) an empty vessel, but they don’t want the vessel to go away, so they just keep it sitting there."