OFT EVIL WILL SHALL EVIL MAR: Boasberg Tried to Box Trump In. Instead, He Handed Him the Court That Gut-Punched the Entire Lawfare Machine.
Sitting in his Washington courtroom during the Alien Enemies Act litigation, exasperated with the Trump administration’s position that the executive could identify terrorist aliens and remove them without his blessing, Boasberg reached for what he thought was a rhetorical trump card. Congress, he observed, had already built a court for exactly this purpose. “You can always go to the ATRC, which would be a first, but that’s what it’s there for, right?” He would know. Boasberg had served on the Alien Terrorist Removal Court from 2020 through 2025, and for that entire period he was its chief judge, presiding over a tribunal that had never once received a case.
Sixteen months later, on July 15, 2026, the Department of Justice filed the first application in the court’s history. The administration took the judge’s suggestion. It simply took it more seriously than he intended.
To appreciate the jujitsu, you have to understand what the ATRC actually is, because almost nobody does. Start with the problem it was built to solve. Imagine the government possesses classified intelligence, perhaps from a human source inside a terrorist network, perhaps from a foreign partner’s surveillance, establishing that an alien inside the United States is connected to terrorism. In an ordinary immigration proceeding, using that evidence means exposing it. Exposing it can mean a dead informant, a burned collection method, or a furious ally who stops sharing. The government therefore faced what Senator Bob Smith described in 1995 as two equally unacceptable choices. Reveal the intelligence and destroy its source, or protect the intelligence and let the terrorist stay.
Congress chose a third path. As part of the Antiterrorism and Effective Death Penalty Act, signed in April 1996 after the World Trade Center and Oklahoma City bombings, it created a specialized Article III tribunal. The Chief Justice designates five sitting federal district judges, each from a different circuit, to five-year terms. The Attorney General may bring an application when classified evidence shows an alien is a terrorist and ordinary removal proceedings would endanger national security. A judge reviews the classified material in a sealed, ex parte proceeding and must find probable cause before anything advances. If the application is granted, the case proceeds to a public merits hearing where the respondent receives notice, counsel at government expense if needed, an unclassified summary of the evidence, the right to present a defense, and appellate review in the DC Circuit, with the Supreme Court available beyond that. The government must prove its case by a preponderance of the evidence. This is not a star chamber. It is due process engineered for intelligence cases rather than due process borrowed from traffic court.
Was this some fever dream of the modern right? Hardly. The Reagan Justice Department conceived the idea. The George H.W. Bush administration promoted it and vouched for its constitutionality. The Clinton administration made it a legislative priority, with Attorney General Janet Reno calling the mechanism both constitutional and responsive to a real problem, and FBI Director Louis Freeh describing it as one of the department’s highest antiterrorism priorities. Then-Senator Joe Biden, chairing the Judiciary Committee, pronounced the constitutional argument irrefutable. An earlier Senate version passed unanimously, and the broader bill cleared the Senate 91 to 8. Three administrations of both parties built this court. The words of Reno and Biden now sit in the record like landmines beneath every Democrat preparing to call the tribunal an authoritarian invention.
I’m expecting an earth-shattering kaboom.
