The Forgotten FISA Court: Exploring the Inactivity of the ATRC

Abstract

The Alien Terrorist Removal Court (ATRC) was established in 1996 after immense political pressure from the Reagan, Bush, and Clinton Administrations and wide bipartisan support to serve as a forum to prosecute the most complex and difficult national security immigration removal cases while protecting vital classified information from public disclosure. Yet, after twenty-three years, this Article III court has not heard a single case.

This Article provides a fresh and critical inquiry into this veritable zombie court that has fallen from the public consciousness, yet still exists with a standing cadre of designated judges. It fills a significant gap in the conjunction of national security and immigration literature as the most comprehensive scholarly inquiry that has been done on the ATRC. Our novel conclusions include the reasons why the court has not ever heard a case and an analysis into its continued legitimacy despite subsequent War on Terror-era enactments that streamline the removal of most classes of noncitizen national security threats. We uniquely establish that the ATRC was dead on arrival due to its unworkable, yet legislatively remediable, procedural flaws. We examine the dynamic history of this forgotten court, analyze its structure, and propose commonsense legislative revision that would render this important national security law enforcement tool viable.

Keywords: national security, constitution, federal courts, terrorism