The State Department has concluded that “In 2022, Iran increasingly encouraged and plotted attacks against the [U.S.], including against former U.S. officials,” noting that the Justice Department had “disrupted an [Iran Revolutionary Guard Corp-Qods Force] IRGC-QF-led plot to assassinate former National Security Advisor John Bolton and arrested a suspected Iranian operative accused of planning the assassination”.
This May, I asked whether Iran-led assassinations, or attempted assassinations, on U.S. soil would trigger the Alien Enemies Act’s (AEA) provisions allowing the president to summarily detain and remove nationals of enemy nations. I concluded that “a strong argument can be made that such acts would” indeed trigger the AEA.
Just last month, Steve Holland reported for Reuters that “At [President] Biden's direction, top U.S. officials have sent messages to the highest levels of the Iranian government warning Tehran to cease all plotting against Trump and former U.S. officials. … The Iranians have been told that Washington would view it as an act of war if any attempt was carried out against [Donald] Trump's life.”
Then, on Friday, U.S. Attorney General Merrick Garland announced that DOJ “has charged an asset of the Iranian regime who was tasked by the regime to direct a network of criminal associates to further Iran’s assassination plots against its targets, including President-elect Donald Trump”.
It appears that the time may have come for President Biden or President-elect Trump to deploy the AEA against Iranian nationals residing in the U.S.
The AEA, enacted in 1798, provides that:
Whenever there is a declared war between the [U.S.] and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the [U.S.] by any foreign nation or government ... all natives, citizens, denizens, or subjects of the hostile nation or government [at least 14 years old and not having become naturalized U.S. citizens] ... shall be liable to be apprehended, restrained, secured, and removed as alien enemies.
The Immigration and Nationality Act’s (INA) statutory procedures and rights accorded aliens do not apply to detention and removal under the AEA. As I have analyzed in detail, numerous federal courts, up to and including the Supreme Court, have long upheld the AEA’s constitutionality, and the federal government utilized the Act during the War of 1812, World War I, and World War II (when the U.S. detained thousands of alien enemies and removed over a thousand).
As to Iran’s plot, FBI Director Christopher Wray stated that:
The charges announced today expose Iran's continued brazen attempts to target U.S. citizens, including President-elect Donald Trump, other government leaders and dissidents who criticize the regime in Tehran. The [IRGC] — a designated foreign terrorist organization — has been conspiring with criminals and hitmen to target and gun down Americans on U.S. soil.
The U.S. Department of Justice (DOJ) revealed that:
[The lead defendant Farhad] Shakeri is an IRGC asset residing in Tehran, Iran … [who] immigrated to the [U.S.] as a child and was deported in or about 2008 after serving 14 years in prison for a robbery conviction. In recent months, Shakeri has used a network of criminal associates he met in prison in the [U.S.] to supply the IRGC with operatives to conduct surveillance and assassinations of IRGC targets. Two members of Shakeri’s network are his co-defendants … [and] have spent months surveilling a U.S. citizen of Iranian origin … [who is] an outspoken critic of the Iranian regime and has been the target of multiple prior plots for kidnapping and/or murder directed by the Government of Iran. In exchange for Shakeri’s promise of $100,000, [Carlisle] Rivera and [Jonathon] Loadholt repeatedly sought to locate [the Iranian] for murder.
[T]he IRGC has also tasked Shakeri with carrying out other assassinations against U.S. and Israeli citizens located in the [U.S.]… . Shakeri has informed law enforcement that he was tasked on Oct. 7, 2024, with providing a plan to kill President-elect Donald J. Trump… . He also stated he was tasked with surveilling two Jewish American citizens … and offered $500,000 by an IRGC official for the murder of either.
Here is DOJ’s criminal complaint.
The U.S. State Department (DOS) has labeled the Iranian regime, which it has designated as a state sponsor of terrorism since 1984, to be “the world’s worst state sponsor of terrorism” and “the leading state sponsor of terrorism, facilitating a wide range of terrorist and other illicit activities around the world”. DOS considers the regime as having “a unique place among the governments of the world in its use of terrorism as a central tool of its statecraft”, including acts of terrorism on U.S. soil.
In 2019, DOS first designated Iran’s IRGC as a foreign terrorist organization, the first governmental entity to ever receive such a distinction. DOS concluded that the IRGC, a part of Iran’s military, is “Iran’s primary mechanism for cultivating and supporting terrorist activity abroad”. It has been “directly involved in terrorist plotting”, its “support for terrorism is foundational and institutional”, and it “directs and carries out a global terrorist campaign”, “most prominently through its Qods Force”.
DOS has also concluded that the IRGC “has killed U.S. citizens”, “plotted a brazen attack against the Saudi ambassador to the [U.S.] on American soil”, and was found by “a U.S. federal court … liable for the 1996 Khobar Towers bombing that killed 19 U.S. citizens”.
How Many?
There are, at the very least, over 100,000 Iranian nationals present, legally or illegally, in the U.S. From fiscal years 2014 to 2023, the U.S. has granted legal permanent resident (LPR) status to 103,980 persons born in Iran: 11,620 in 2014; 13,110 in 2015; 13,300 in 2016; 13,790 in 2017; 10,120 in 2018; 6,640 in 2019; 8,810 in 2020; 5,730 in 2021; 9,410 in 2022; and 11,450 in 2023. Presumably, the 13,810 Iranian refugee arrivals from 2014 to 2023 and the 4,290 Iranians granted asylum over this period are genuine opponents of their nation’s regime. Of course, these figures do not consider the 104,525 Iranian natives who became naturalized U.S. citizens during the 2013-2022 period.
As to “temporary” visitors, in fiscal year 2023, DOS issued 17,634 non-immigrant visas to Iranian nationals. The Institute of International Education’s (IIE) annual census of international students in the U.S. reports that in the 2022/23 academic year, 10,812 foreign students from Iran were attending institutions of higher education here (8,405 as graduate students, 1,865 participating in Optional Practical Training with U.S. employers, and 444 as undergraduates) , with 47.2 percent studying in engineering fields, 13.5 percent in math and computer sciences fields, and 12.9 percent in physical and life science fields. IIE’s census, which has been ongoing since 1919, “has long been regarded as the comprehensive information resource on international students and scholars in the United States and on U.S. students studying abroad”. In 2022, U.S. Citizenship and Immigration Services approved petitions for 706 Iranian nationals for initial employment as H-1B aliens in specialty occupations.
Why Should We Fear the Presence of Nationals of Enemy Nations in Our Midst?
During World War I, Assistant Attorney General Charles Warren argued in defense of the AEA that:
One of the measures of protection found by every nation to be most necessary in time of war is the guarding against internal enemies whose operations are more insiduous, and therefore, more dangerous to the common weal, in many cases, than are the active maneuvers of military forces. The very presence of enemy subjects in the land may constitute a potentiality of danger which must be guarded against, even before such persons become an active danger. Such persons may have been sent into the country for the very purpose of spreading sedition and of deceiving our own people by indirect propaganda and suggestion. An army of spies, incendiaries, and propagandists may be more dangerous than an army of soldiers.
In 1799’s Case of Fries, the Circuit Court for the District of Pennsylvania explained that:
Nothing is more common than to order away, on the eve of a war, all aliens or subjects of the nation with whom the war is to take place. Why is that done, but that it is deemed unsafe to retain in the country men whose prepossessions are naturally so strong in favour of the enemy that it may be apprehended they will either join in arms or do mischief by intrigue in his favour?
In cases like this it is ridiculous to talk of a crime; because perhaps the only crime that a man can then be charged with is his being born in another country and having a strong attachment to it. He is not punished for a crime that he has committed, but deprived of the power of committing one hereafter to which even a sense of patriotism may tempt a warm and misguided mind.
The opportunities during a war of making use of men of such a description are so numerous and so dangerous that no prudent nation would ever trust to the possible good behavior of many of them.
And the Supreme Court explained in 1950 in Johnson v. Eisentrager that:
[In 1819,] Chancellor Kent, after considering the leading authorities of his time, declared the law to be that “... in war, the subjects of each country were enemies to each other, and bound to regard and treat each other as such.” ... If this was ever something of a fiction, it is one validated by the actualities of modern total warfare. Conscription, compulsory service and measures to mobilize every human and material resource and to utilize nationals — wherever they may be — in arms, intrigue and sabotage, attest the prophetic realism of what once may have seemed a doctrinaire and artificial principle. With confirmation of recent history, we may reiterate this Court's earlier teaching that in war “every individual of the one nation must acknowledge every individual of the other nation as his own enemy — because the enemy of his country.”… And this without regard to his individual sentiments or disposition…. The alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the [U.S.], assuming him to be faithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.
Why the Alien Enemies Act?
In response to the taking of American hostages in Iran following the Islamic Revolution, President Jimmy Carter in November 1979 ordered the Immigration and Naturalization Service (INS) to deport those Iranian students illegally in the U.S. According to John Goshko in the Washington Post, Attorney General Benjamin Civiletti was told to immediately “check the approximately 50,000 Iranian students to identify those not in compliance with … their … visas and … commence deportation proceedings”. The following September, the New York Times reported that, according to the INS, “59,000 to 60,000 students had registered as they were supposed to do” while “there were 8,000 to 10,000 students whose whereabouts were unknown”. Also, immigration judges had entered deportation orders regarding about 2,000 illegally present Iranian students, with 10,000 more having pending deportation proceedings. However, according to Will Teague in the Arkansas Historical Quarterly, in the end, only about 700 deportations actually took place.
These seemingly feeble results well illustrate the futility of relying on the INA’s removal procedures in times of conflict. Goshko paraphrased then Deputy Associate Attorney General Doris Meissner as “stress[ing]” that “students whose status is considered illegal cannot be deported summarily. … [T]hey are entitled to hearings and appeals … [and] deportation proceedings can take considerable time.” And the INS could not even pursue such deportations against all those Iranian students who were legally present.
The presence of Iranian operatives in the U.S. could lead to catastrophic consequences, and not only the assassination of a U.S. president or other high U.S. officials. In April, Argentina’s highest criminal court ruled that “Hezbollah militants responding to ‘a political and strategic design’ by Iran” carried out the 1994 bombing of a Jewish community center in Buenos Aires, Argentina, that killed 85 people and injured hundreds, which the court called a “crime against humanity”. Lucila Sigal and Lucinda Elliott reported for Reuters that “prosecutors ha[d] charged top Iranian officials and members of Iran-backed Lebanese armed group Hezbollah with ordering the bombing, as well as an attack in 1992 against the Israeli embassy in Argentina, which killed 22 people”.
For 226 years, the Alien Enemies Act has been available when needed to protect our nation. We may need to call upon it again.