As a former mayor who has balanced public safety and individual rights, and as an attorney who has long valued due process, I view the activation of the Alien Terrorist Removal Court (ATRC) with cautious concern. For three decades, this specialized Article III tribunal--created by Congress in 1996 as part of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. 104-132--existed mostly on paper. Designed for the removal of non-citizens suspected of terrorism when classified evidence makes ordinary proceedings impractical (8 U.S.C. §§ 1531-1537), the ATRC had never heard a case.
That changed on July 15, 2026. The Department of Justice's National Security Division filed the court's first application under 8 U.S.C. § 1533. The next day, Chief Judge Joan Ericksen convened the ATRC's inaugural hearing. In a brief public order, Judge Ericksen declined to grant the application immediately. Instead, she directed the government to supplement its filing with additional factual and legal analysis by July 22, noting that the government's answers had persuaded the court it "could benefit from the opportunity for more thoughtful consideration."
This measured start is encouraging. It shows the court is not a rubber stamp. Yet the ATRC's first real-world test raises profound questions about the balance between national security and due process--questions the 9th Circuit's precedents and comparisons to other national security forums help illuminate.
Why the ATRC was built--and why it slept
The ATRC responded to real threats, including the 1993 World Trade Center bombing. An initial ex parte and in camera application stage (8 U.S.C. § 1533) allows a judge to find probable cause that the individual is an alien terrorist whose removal under ordinary procedures would risk national security. If granted, a public removal hearing follows (8 U.S.C. § 1534), where the alien has counsel and receives an unclassified summary of the evidence deemed sufficient by the judge.
Critics rightly worried from the start that secret evidence could undermine the ability to mount a meaningful defense, especially for lawful permanent residents protected by the Fifth Amendment. The statute's safeguards may look adequate on paper, but their real-world sufficiency remains untested. Post-9/11 tools reduced the perceived need for this court, leaving it dormant for 30 years.
The 2026 test case
The July 15 filing--docketed publicly as 2026-TRC-1--marks the end of that dormancy. Details remain sealed, but Judge Ericksen's order requiring supplementation after the July 16 hearing demonstrates active judicial oversight rather than automatic approval. If the application is granted, the case will move to a public hearing with statutory protections, subject to appeal in the D.C. Circuit.
Criticisms and constitutional concerns--through a 9th circuit lens and comparison to military commissions
The central concern is the use of classified evidence. While § 1534 requires an unclassified summary "sufficient" for the alien to prepare a defense, adequacy will be judged in practice. The 9th Circuit, which decides many immigration appeals, provides a rigorous framework. Removal proceedings must satisfy due process: A hearing is fundamentally unfair if the alien cannot reasonably present their case, and prejudice results. Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000). In national security contexts, the court applies Mathews v. Eldridge balancing. Kashem v. Barr, 941 F.3d 358 (9th Cir. 2019), upheld limited classified use for No Fly List placements where summaries and response opportunities existed.
Collateral-attack precedents add weight. In illegal reentry cases, the 9th Circuit permits challenges to underlying removal orders for fundamental unfairness plus prejudice.
Comparison to military commissions is instructive. Both systems handle terrorism cases with classified evidence and limited confrontation rights. However, the ATRC is a narrower civilian immigration tool focused solely on removal, not punishment. It uses Article III judges with greater independence, a probable cause threshold and a public hearing with counsel. Military commissions, by contrast, are punitive military tribunals for law-of-war offenses, with more formal trial rights but a history of command-influence concerns, relaxed evidence rules and repeated constitutional challenges (Hamdan v. Rumsfeld, Boumediene v. Bush).
The ATRC thus offers a lower-stakes, civilian alternative--potentially easier to defend constitutionally--yet still carries similar secrecy risks. The 9th Circuit's protective stance on immigration fairness suggests that overly restrictive application of the ATRC could fail as applied, particularly for California residents.
Why this matters now (and in California)
California's large immigrant communities and active 9th Circuit docket make this more than a Washington story. Practitioners here routinely litigate classified-information issues; an ATRC removal order affecting a California resident could quickly invite habeas or collateral challenges testing these precedents. At stake is whether a specialized court for extraordinary threats can function without eroding core constitutional norms.
The government rightly prioritizes protecting sources and methods. Individuals--especially long-term residents--rightly expect a meaningful opportunity to know and contest the case against them. Transparency and accountability must not be sacrificed for expediency.
Conclusion
Judge Ericksen's careful handling of the first application is a positive sign. But the legal community should monitor this case closely. If constitutional vulnerabilities emerge, Congress or the courts may need to refine the safeguards--clearer standards for summaries, enhanced review mechanisms or stronger judicial oversight.
After 30 years of silence, the ATRC has spoken. How it performs in this inaugural test will reveal whether it is a measured national security tool or a procedure that risks trading due process for convenience. In California and across the nation, we must insist on the former--security that never comes at the expense of due process.
The views expressed here are the author's and not those of the California Military Department or the Los Angeles County District Attorney's Office.