For the first time since Congress created it in 1996, the Justice Department has invoked the Alien Terrorist Removal Court (ATRC), a specialized tribunal that may consider classified evidence a respondent never sees, and order a noncitizen accused of terrorism removed. What the statute does not say is who decides whether that removal will deliver the person to torture.

Almost everything about the case remains secret. The Justice Department’s publicly available application is little more than a cover page. The respondent’s identity, nationality and alleged conduct have not been disclosed, nor has whether the respondent is detained, or where.

The court’s first public order suggests the proceeding will not be perfunctory. The Department filed its application July 15. At a July 16 hearing held in camera, as §1533 requires, the government presented attorney argument but no sworn testimony. Joan Ericksen, chief judge of the removal court and a senior US district judge in Minnesota, questioned the asserted connection between the respondent’s conduct and the specific terrorism provisions cited by the government. She ordered the Justice Department to supplement its application with additional factual or legal analysis.

That scrutiny is essential. The ATRC permits the government to use classified evidence that the respondent may never see. The judge therefore serves as the principal institutional safeguard against error, exaggeration or misuse of intelligence.

But the case also exposes a different problem that Congress never adequately resolved: Even if an Article III judge carefully determines whether the respondent is legally removable, that judge apparently will not decide whether sending the respondent to a particular country would result in torture.

Under an obscure Justice Department regulation, that determination belongs to the attorney general—the same executive official whose department is asking the court to order the removal.

An extraordinary but carefully bounded court

Congress created the ATRC as part of the Antiterrorism & Effective Death Penalty Act of 1996. The tribunal consists of five federal district judges designated by the chief justice. According to the Federal Judicial Center’s history of the court, it had never received a removal application before this case.

The government may use this special process when the attorney general possesses classified information indicating that a noncitizen is an “alien terrorist” and maintains that proceeding through the ordinary immigration system would create a national-security risk. Under 8 U.S.C. § 1533, the initial application is submitted ex parte, under seal and in camera.

If a judge finds probable cause and approves the application, the case proceeds to a removal hearing. As provided by 8 U.S.C. § 1534, the respondent has the right to appointed counsel when financially necessary, an opportunity to present evidence and cross-examine witnesses, a verbatim record and a written decision. The government must prove removability by a preponderance of the evidence.

Those protections are substantially weakened when classified information is involved. The government generally must provide an unclassified summary sufficient to permit the respondent to prepare a defense. But if no adequate summary can be produced, the proceeding may continue using evidence presented to the judge in camera and ex parte.

A lawful permanent resident may then receive assistance from a security-cleared special attorney who can review and challenge the classified evidence without disclosing it to the respondent. A respondent who is not a permanent resident receives no comparable adversarial safeguard under the procedures established by § 1534.

Congress also sharply limited the judge’s authority. Under 8 U.S.C. § 1534(k), the judge may not grant asylum, statutory withholding of removal, cancellation of removal, adjustment of status, voluntary departure or registry.

The statute thus authorizes an Article III judge to determine whether the government has proved that a person is an alien terrorist, while preventing that judge from granting most forms of protection ordinarily considered in removal proceedings.

That limitation becomes especially consequential when the respondent asserts that removal would expose the person to torture.

Terrorism does not eliminate the torture prohibition

The United States has adopted a categorical prohibition against involuntarily returning a person to a country where that person is more likely than not to be tortured. Congress implemented the United States’ obligations under Article 3 of the Convention Against Torture (CAT) through Section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998.

Unlike asylum and statutory withholding of removal, protection against removal to torture does not disappear because a person is dangerous, has committed a serious crime or is accused of terrorism. The form of relief may be narrower, but the prohibition remains.

In ordinary immigration proceedings, a person barred from asylum or withholding may receive deferral of removal under the CAT. Deferral does not confer lawful status, require release from detention or prevent removal to a safe third country. It prohibits only removal to the particular country where the person is likely to be tortured.

The distinction matters. A determination that someone is removable—even because of terrorism—does not answer the separate, country-specific question of where the United States may lawfully send that person.

Congress enacted the removal court statute two years before it implemented the convention in the Foreign Affairs Reform and Restructuring Act of 199, and three years before the Justice Department wrote the regulations. The 1996 statute therefore says little about how torture claims should be adjudicated within this specialized system.

The Justice Department attempted to fill that gap in 1999. Under 28 C.F.R. § 200.1, a removal order issued by the ATRC may not be executed when doing so would violate Article 3 of the CAT.

But the regulation then states that CAT claims “shall be determined by the Attorney General, in consultation with the Secretary of State.”

That allocation of authority is the central defect.

A decision without defined procedures

In an ordinary removal case, an immigration judge adjudicates a torture claim on an evidentiary record. The noncitizen may testify, present expert opinions, submit reports concerning conditions in the proposed country of removal and challenge the government’s evidence. An adverse ruling may be appealed to the Board of Immigration Appeals and then reviewed by a federal court of appeals.

The Supreme Court held in Nasrallah v. Barr (2020) that a CAT order is legally distinct from the underlying removal order. A court of appeals may review constitutional, legal and factual challenges to the torture determination, with factual findings reviewed under the deferential substantial-evidence standard.

The special regulation governing ATRC cases supplies none of that detail. It does not require notice of every country to which the government may seek removal. It does not guarantee a hearing before a neutral adjudicator, an opportunity to testify or present country-conditions evidence, access to the evidence supporting an adverse determination, or a written decision applying the “more likely than not” standard.

Most importantly, the regulation does not identify a clear procedure through which the respondent may obtain judicial review before removal occurs.

It simply assigns the decision to the attorney general after consultation with the secretary of state.

The statute also gives the executive branch substantial control over the destination. Under 8 U.S.C. § 1537, a respondent may initially designate a country, but the attorney general, in consultation with the secretary of state, may reject that designation for treaty or foreign-policy reasons. The attorney general may then arrange removal to another country willing to receive the respondent.

A CAT determination cannot meaningfully be made in the abstract. The risk depends on the particular destination, the respondent’s identity and history, the receiving government’s practices and any assurances offered by that government. The respondent therefore must know where the government intends to send them before the torture claim can be fairly adjudicated.

The judicial-review provisions do not fit together

The division of authority also creates an unresolved jurisdictional problem.

Under 8 U.S.C. § 1535, either party may appeal the removal-court judge’s decision to the US Court of Appeals for the District of Columbia Circuit. The removal order generally may not be enforced while that appeal is pending.

But the torture determination is not made by the removal-court judge. It is assigned by regulation to the attorney general and could occur separately from—and potentially after—the judge enters the removal order.

The specialized statute also provides in 8 U.S.C. § 1533 that, once an application is approved, the respondent’s removal rights are governed “solely” by the ATRC provisions, except where another provision of immigration law is expressly incorporated.

Federal law ordinarily channels review of CAT claims through a petition for review of a final removal order. Yet the specialized appeal provision focuses on decisions made by the removal-court judge, while the regulation assigns the torture determination to an executive official.

Those provisions do not establish that judicial review is impossible. Constitutional avoidance and the strong presumption favoring review of executive action may support an interpretation preserving access to a court. But the statutory and regulatory texts do not clearly answer where, when or under what standard the respondent may challenge the attorney general’s determination before the government places that person on an aircraft.

A legal system committed to preventing torture should not leave that question unresolved until removal is imminent.

National-security expertise is not a substitute for process

The government has a serious response. Decisions involving foreign governments, diplomatic assurances, classified intelligence and potential terrorist activity implicate expertise traditionally housed in the executive branch. Consultation between the attorney general and the secretary of state may be necessary, and some information may legitimately remain classified.

But executive expertise does not resolve the procedural issue.

The question is not whether the attorney general and the State Department should participate. They plainly should. The question is whether the official pursuing removal should possess the final word on whether that same removal plan will violate the United States’ obligation not to deliver a person to torture—without a defined hearing, adversarial testing, a reasoned decision or assured judicial review.

National-security proceedings routinely employ procedures that protect classified information while preserving meaningful scrutiny. The ATRC statute itself requires judicial findings, permits sealed records and creates a special-attorney mechanism for some respondents. Confidentiality and adjudication are not mutually exclusive.

What the court and Congress should do

The court should require the Justice Department to address this issue before the proceeding advances much further. At minimum, the government should explain how it intends to implement 28 C.F.R. § 200.1, when the respondent will learn the proposed country of removal, what evidence the respondent may submit, whether a written decision will issue and how the respondent may obtain judicial review before removal.

If the government relies on classified evidence relevant to the torture determination, an adversarial safeguard should be available. A security-cleared special attorney could test classified assertions without disclosing protected information to the respondent or the public. There is little justification for limiting that safeguard to lawful permanent residents when the legal question is whether the United States is about to send a human being to torture.

Any eventual removal order should not be executed until the respondent has received notice of the intended destination, a meaningful opportunity to present evidence, a reasoned decision under the proper legal standard and a practical opportunity to obtain judicial review.

Should the case reach the DC Circuit, that court should construe the specialized appeal provisions, the CAT regulation and the federal implementing law together to preserve review of the attorney general’s determination. An interpretation permitting the executive branch to make an unreviewable decision about whether its own transfer plan will result in torture would raise grave due-process and separation-of-powers concerns.

Congress should ultimately eliminate the ambiguity. It should assign CAT claims to the same Article III judge who determines removability, require a defined evidentiary record and authorize appellate review before removal. Congress should also extend the special-attorney procedure to any case in which classified evidence would otherwise prevent an effective defense.

The government may eventually establish that the respondent is properly classified as an alien terrorist. It may identify a receiving country where the person faces no substantial risk of torture. The allegations and classified evidence may be compelling.

None of that eliminates the need for a lawful process.

The ATRC was designed to reconcile national security with judicial oversight. Its first case should not create a precedent under which the executive branch asks a court to authorize removal and then decides for itself whether executing that removal will deliver someone to a torturer.

———

Richard T. Herman is an immigration lawyer with more than 30 years of experience and the founder of the Herman Legal Group. He is the co-author of Immigrant, Inc.: Why Immigrant Entrepreneurs Are Driving the New Economy and writes frequently about immigration enforcement and due process.

This piece first appeared July 29 in JURIST.

Image: Wikipedia

From our Daily Report:

Mahmoud Khalil sues US officials, pro-Israel groups
​CounterVortex, July 20, 2026

See also:

WHEN CITIZENSHIP BECOMES CASTE
White Supremacy’s Push to Rewrite the Constitution
by Timothy Benston, The Black Eye
CounterVortex, December 2025

THE SUPREME COURT, SOMALIA AND SOVEREIGN IMMUNITY
Historic Ruling Means US Is Not a Safe Haven for War Criminals
by Pamela Merchant, Center for Justice and Accountability
CounterVortex, July 2010

—————————-

Reprinted by CounterVortex, July 30, 2026
Used with permission.

Map via PCL

Photo: Russian mercenaries in the Central African Republic. Credit: Corbeau News Centrafrique via Wikimedia Commons

Photo: Martin St-Amant via Wikimedia Commons

Official statements refered to the militants as “kharji terrorists,” a reference to a medieval heresy in Islam, and a term usually applied to the Tehrik-e Taliban Pakistan (TTP)—a group more active in Khyber Pakhtunkhwa province to the north.  (First Post, Arab News)

Map: PCL

The trial of Syria’s former grand mufti, Ahmed Bareddin Hassoun, opened at the Palace of Justice in Damascus on June 26. Hassoun led Syria’s official religious establishment under the Bashar Assad dictatorship. He is accused of incitement to murder and abusing his position as mufti to provide religious cover for the crimes of the regime, as well as participation in war crimes and crimes against humanity. He famously issued fatwas justifying the bombing of civilians and called the regime’s use of indiscriminate barrel bombs “liberation,” winning him the epithet “Barrel Bomb Mufti.” He also issued a fatwa in 2017 authorizing the execution of detainees held at the notorious Sednaya Prison, where the Assad regime killed thousands, many through torture and starvation.

Hassoun was arrested in March 2025, four months after the Assad regime fell, at Damascus Airport while trying to leave the country. The hearing was presided over by Judge Fakhr al-Din al-Aryan, who defected to the Syrian opposition in 2013 and had been sentenced to death by the Assad regime. (The New Arab)

See our last report on the Assad regime’s crimes.

Photo: SANA via Arab News

The presence of Uyghur fighters in Syria has been a presistent concern for China, helping to prompt Beijing military support for the Bashar Assad regime before it was overthrown in late 2024.

Map: PCL

by Mihai Coca-Constantinescu, JURIST

Within the span of one week, Romania was struck twice by drones originating from the conflict in Ukraine: first by an aerial drone in the city of Galați on May 29, and then by a maritime drone that exploded in the Port of Constanța on June 5. The two incidents, unprecedented in their proximity and severity, have reignited urgent debates about the legal and security implications of modern drone warfare spilling across international borders.

The first aerial drone struck the roof of a residential apartment building in Galați, a Danube port city bordering Ukraine. Two people, a 14-year-old boy and a 53-year-old woman, were hospitalized, while two others were treated at the scene for panic attacks. The drone was confirmed to be of Russian origin, carrying explosives, and formed part of a larger overnight attack on Ukraine that involved 232 drones and one ballistic missile. A week later, a Ukrainian naval drone self-detonated near an oil terminal in Constanța. Ukraine confirmed the device was its own, attributing the loss of control to Russian electronic jamming that knocked the drone off its course.

These are incidents that did not occur in isolation. Romania, which shares a 650 kilometer border with Ukraine, has recorded more than two dozen confirmed drone incursions into its airspace since Russia launched its full-scale invasion of Ukraine in February 2022. Fragments of Russian drones have been recovered on Romanian soil on multiple occasions. In November 2025, a drone made its deepest recorded penetration into Romanian airspace, prompting the scrambling of both Romanian F-16s and German Eurofighter Typhoons stationed at the Mihail Kogălniceanu airbase.

What distinguishes the May and June 2026 incidents is their scale of consequence. The Galați strike marked the first time a Russian drone caused physical injury to Romanian civilians in a densely populated area. It is, by any reasonable measure, a qualitative escalation—one that transforms a long-simmering border security concern into an acute sovereignty crisis with international law implications.

The Romanian government’s response to the incident was swift and resolute. Following a meeting of the Supreme Council of National Defense, President Nicușor Dan declared the Russian consul in Constanța persona non grata and announced the closure of the Russian consulate in the city. Minister of Foreign Affairs Oana Toiu confirmed both the Russian origin of the Galați drone, and that it was carrying explosives, stating plainly that Romania considers the incident “the full responsibility of the Russian Federation.” Foreign Affairs officials also summoned for discussions Moscow’s ambassador.

Romania’s Defense Ministry acknowledged that the drone had been detected by radar systems and tracked into the southern area of Galați, but said there was “no opportunity” to intercept it given the limited time available. This candid admission reflects a genuine operational challenge: the speed and low-altitude flight paths of modern drones make interception extremely difficult, even for well-equipped NATO members. In the aftermath of the incidents, authorities issued Ro-Alert (Romania’s national emergency alert system) notifications to affected populations, deployed helicopters to search for additional drones, and evacuated over 1.300 people from Black Sea beaches near Constanța as a precautionary measure.

Russia, for its part, denied responsibility for the Galați strike. President Vladimir Putin suggested that the drone may have been of Ukrainian origin, noting previous incidents in Baltic states that were later attributed to Ukrainian drones. The Russian government also warned of a forthcoming response to Romania’s decision to close the Constanța consulate.

The legal dimensions of these incidents are considerable. Under international law, the principle of state sovereignty enshrined in Article 2(1) of the United Nations Charterguarantees each state exclusive jurisdiction over its territory and airspace. The unauthorized entry of an armed drone into Romanian airspace, whether deliberate or the result of navigational error, constitutes a violation of that sovereignty. Romania’s Foreign Affairs Ministry formally characterized the Galați incident as a serious violation of international law.

The distinction between a deliberate attack and an incidental overflight matters significantly in legal terms. The law of state responsibility, as codified in the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, provides that a state bears responsibility for an internationally wrongful act attributable to it, regardless of intent. Russia’s pattern of launching mass drone attacks on Ukrainian territory—attacks that, by their nature and frequency have predictably resulted in drones crossing into Romanian airspace—may be sufficient to establish the imputability of harm, even without evidence of deliberate targeting.

As for the Constanța maritime drone, Ukraine confirmed ownership of the vessel and attributed its errant trajectory to Russian electronic jamming. This raises a distinct but equally complex legal question: when one belligerent’s interference with another’s weapons system causes that system to strike a neutral third state, who bears responsibility? The law of armed conflict does not yet offer a settled answer to this scenario, and the Constanța incident may prove to be significant in the evolving jurisprudence surrounding drone warfare and electronic countermeasures.

For NATO, the incidents in Romania present a structural challenge that the Alliance has been grappling with, largely without resolution, since 2022. Article 5 of the North Atlantic Treatycommits all North American Treaty Organization (NATO) members to treat an armed attack against one as an attack against all. Whether recurring drone incursions into a member state’s territory that resulted in civilian casualties meets the threshold of an “armed attack” as defined in Article 5 is a question of enormous political and legal weight.

NATO Secretary-General Mark Rutte condemned the Galați incident, stating that “Russia’s reckless behavior is a danger to us all” and that “the implications of their illegal war of aggression don’t stop at the border.” The United States Ambassador to NATO, Matthew Whitaker, called the strike a “reckless incursion” and reaffirmed the Alliance’s commitment to defend every inch of NATO territory. NATO’s Supreme Headquarters Allied Powers Europe (SHAPE) spokesperson confirmed the Russian origin of the drone. Yet the Alliance stopped short of treating the incident as a trigger for consultations under Article 4, let alone collective defense measures under Article 5.

This restraint is deliberate and arguably prudent. Analysts have long warned that ambiguity in NATO’s response to incremental violations may itself function as an invitation to further provocation. At the same time, overreaction to what may be—or what can plausibly be—framed as navigational accidents risks a dangerous escalation with a nuclear-armed state. The Alliance’s challenge is to calibrate a response that is firm enough to deter future incursions while avoiding a spiral toward direct confrontation.

Romania’s own legal framework has evolved in response to this dilemma. Law No. 73 of 2025 introduced a domestic legal basis for the interception and shooting down of unauthorized aerial vehicles under specific conditions. This measure sought to address the gap between Romania’s standing rules of engagement and the operational realities of low-altitude drone intrusions.

The events of late May and early June 2026 underscore a structural vulnerability that no bilateral diplomatic protest can adequately address. Russia’s ongoing drone warfare against Ukraine will continue to affect neighboring NATO countries both physically and legally. The incidents in Galați and Constanța are not anomalies—they are predictable consequences of a war being fought with technologies that do not respect borders.

What is needed, at both the national and alliance level, is a clearer legal and operational framework for responding to drone incursions; one that establishes transparent thresholds for what constitutes a casus belli—an act or event that provokes or justifies war—under international law; one that defines the conditions under which interdiction is authorized, and strengthens collective anti-drone capabilities along NATO’s eastern flank. Romania has requested support from its allies for anti-drone defense measures, and this request now merits a considered response.

More broadly, the international community faces a normative gap that the Constanța incident has brought into sharp view. The use of electronic warfare to redirect armed drones into neutral territory, whether by design or as a foreseeable consequence of jamming, is a scenario for which the existing law of armed conflict provides insufficient guidance. Legal scholars, international organizations, and state governments would do well to begin the work of filling that gap before the next incident transforms a legal ambiguity into a geopolitical crisis.

———

Mihai Coca-Constantinescu, who holds an International and European Law LLB from the University of Groningen and an International Trade & Investment Law LLM from the University of Amsterdam, is a PhD candidate in Transboundary Legal Studies at the University of Groningen, based in the Netherlands

This piece first appeared June 23 in JURIST.

Image: Perry-Castañeda Library Map Collection

From our Daily Report:

Romania scrambles F-16 jets after drone incursion
​CounterVortex, Sept. 16, 2025

See also:

GAS INTRIGUES, ECOLOGY AND THE UKRAINE WAR
by Eugene Simonov and Jennifer Castner, Ukraine War Environmental Consequences Work Group
CounterVortex, October 2023

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Reprinted by CounterVortex, June 25, 2026
Used with permission.

Since the mass protests in Iran earlier this year, the Baluchistan region has been flooded with Revolutionary Guard troops. On the same day as the violence in Pashmouki, a Baloch youth was killed by Revolutionary Guards in unclear circumsatnces in Saravan, in the neighboring province of Sistan & Balochistan. Two days earlier, another Baloch youth was killed by Iranian border guards, apparently while attempting to re-enter the country from Afghanistan, to where he had been improperly deported. The traditional Baloch homeland is divded between Iran, Pakistan and Afghanistan, with many Baloch unable to get citizenship papers from any of these three governments, and left effectively stateless. (Hengaw, Hengaw, Hengaw, Gunaz, Balochistan Pulse, Express-Tribune, Express-Tribune, Pakistan)

Map: PCL

Speaking at the G7 summit in France, Trump praised Sharaa as doing “an amazing job” and said: “If Israel can’t do the job [against Hezbollah] without killing everyone else, then he will do the job. Syria will do the job.”

But Trump’s comments came days after President al-Sharaa dismissed reports that Syria could become involved in the war in Lebanon as “mere rumors.”

Sources in Damascus told Asharq Al-Awsat that no official US request had been made for Syrian military intervention, and stressed that “entering the quagmire of war and sending military forces unilaterally is completely ruled out.”

The sources said that while US envoy Tom Barrack had previously urged Damascus to take a clear position against Hezbollah, discussion of deploying Syrian troops to Lebanon was “very, very early” and would only be considered in coordination with the Lebanese state.

Syria’s Interior Ministry also emphasized that “Lebanon is a sovereign state and not a backyard, as the former regime viewed it.” (Radio Free Syria)

Photo: Ahmad al-Sharaa meeting Lebanese Prime Minister Nawaf Salam in Damascus, May 9. Credit: SANA via Radio Free Syria