A dormant court just woke up, and due process is on trial

A federal court that Congress created in 1996, which nobody ever used, just heard its first case.

The Alien Terrorist Removal Court sat on the books for thirty years like a piece of legal furniture no one sat in or dusted beneath. But last week the Justice Department finally started testing out the cushions.

I have spent more than a decade as a designated expert witness, testifying in federal and state courts on such financial topics as fiduciary duty and investment management. I know a bit about how courts behave when a novel legal mechanism gets tested for the first time. Judges move carefully. Lawyers overreach. Everybody watches to see whether the process holds up once there are real facts and a real defendant.

That is exactly what is playing out right now in a courtroom most Americans have never heard of.

Congress created the Alien Terrorist Removal Court as part of the Antiterrorism and Effective Death Penalty Act of 1996, giving the Chief Justice of the United States authority to designate five federal district judges to review government applications seeking the removal of noncitizens tied to terrorism. The idea was simple enough: Sometimes the government has intelligence showing that a person poses a terrorism threat, but using that intelligence in an ordinary immigration hearing would expose sources and methods to the very terrorists we are trying to stop. The court was built as a pressure valve — a way to act on classified information and expel someone dangerous without broadcasting it to the world.

For three decades, that valve stayed shut. According to a 9/11 Commission staff report, the Justice Department had looked at roughly 100 potential cases by 2000 and rejected every one of them,........

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