Summary
- The Iranian regime has been considered the world’s leading state sponsor of terrorism by both Democrat and Republican administrations, with “a unique place among the governments of the world in its use of terrorism as a central tool of its statecraft”.
- The Iranian regime has attempted terrorist attacks on American soil, with Americans, Iranians, and others its intended targets. Overseas, the regime’s proxy forces have targeted and killed American soldiers and civilian contractors.
- Dedicated to the eradication of Israel, Iran is the primary state sponsor of Palestinian terrorist groups (including Hamas) and Lebanon’s Hezbollah terrorist “state within a state”. Argentina’s highest criminal court recently ruled that Hezbollah, in furtherance of “a political and strategic design” by Iran, carried out the 1994 bombing of a Jewish community center in Buenos Aires that killed 85 people.
- There are at least 100,000 Iranian nationals present in the United States, both legally and illegally. Yet, the U.S. government’s available options to remove large numbers of Iranians if necessary during time of conflict are generally quite limited, both because of the statutory and constitutional rights their presence in the U.S. affords them and because of the operational and resource obstacles involved in bringing thousands of deportation cases in vastly backlogged immigration courts.
- There is another removal option of considerable power available to the government — the ability to detain and remove nationals of enemy states through the statutory power conferred by the “Alien Enemies Act” should armed conflict arise.
- The AEA provides that “Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States 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 AEA was enacted in 1798 in reaction to a feared invasion by France, then in the throes of the infamous French Revolution. The Justice Department has explained 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 insidious, and therefore, more dangerous ... in many cases, than are the active maneuvers of military forces ... . An army of spies, incendiaries, and propagandists may be more dangerous than an army of soldiers.”
- Numerous federal courts, up to and including the Supreme Court, have upheld the AEA’s constitutionality.
- Is there a foreseeable scenario short of a declared war under which the president could utilize the AEA against Iranian nationals (or a subset thereof)? As an invasion or predatory incursion must be perpetrated, attempted, or threatened against U.S. territory, attacks on U.S. troops or American citizens abroad would not qualify. As to attacks on American soil, a successful or attempted “predatory incursion” by Iran would give the president access to the AEA’s detention and removal powers. As such, an incursion is best understood as the equivalent of a hostile raid, a terrorist attack perpetrated by Iran could trigger the AEA, as likely could an assassination or attempted assassination.
- As the AEA only authorizes action against “natives, citizens, denizens, or subjects of the hostile nation or government”, Lebanese nationals (or a subset thereof) would not be subject to the AEA predicated on the acts of the Iranian government. However, they could be separately subject to an AEA action predicated on the acts of Hezbollah itself — but only if Hezbollah were found to qualify as the hostile nation or government.
- The Immigration and Nationality Act’s statutory procedures and rights accorded aliens would not apply to AEA detentions and removals. Under the AEA, as the Supreme Court has ruled, judicial review is only available regarding the construction and constitutionality of the statute, the existence of a triggering act by a hostile foreign government, and the existence of a qualifying relationship (nationality in most cases) between a particular alien and the enemy state.
Introduction
I have previously pondered the “unpleasant question [of] what happens if the [People’s Republic of China] PRC and the U.S. go to war?” and fretted over the executive branch’s tenuous available options to remove already admitted students from the PRC under the specter of war. Should the students leave the U.S., a § 212(f) proclamation by the president could certainly bar their return. However, it would be extremely difficult to remove those who choose to stay, both because of the statutory and constitutional rights their presence in the U.S. affords them and because of the operational and resource obstacles involved in bringing thousands of deportation cases in vastly backlogged immigration courts. Should DHS attempt to deport a large number of students from the PRC pursuant to the foreign policy ground of deportability, there is a great risk that federal courts would declare the ground unconstitutional.
But I later realized that I had failed to consider an administration’s ability to detain and remove nationals of enemy states through the statutory power commonly referred to as the “Alien Enemies Act” (AEA) should armed conflict arise. But use of the AEA is not only an option in times of conflict with the PRC, it also is regarding conflict with Iran.
Iran – The World’s Worst State Sponsor of Terrorism
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. DOS’s “Country Reports on Terrorism 2022”, released last November, concluded that:
Iran continued its support for terrorist activity in 2022, including support for Hizballah [which, for uniformity’s sake, I will henceforth spell as Hezbollah throughout this report], U.S.-designated Palestinian terrorist groups in the West Bank and Gaza, and various terrorist and militant groups in Bahrain, Iraq, Syria, and throughout the Middle East. Iran also used regional militant and proxy groups to provide deniability, in an attempt to shield it from accountability for its destabilizing policies.
In 2019, DOS first designated Iran’s Islamic Revolutionary Guard Corps (IRGC) as a foreign terrorist organization, the first governmental entity to ever receive such a distinction. DOS’s “Country Reports on Terrorism 2022” concluded that the IRGC, a part of Iran’s military, is “Iran’s primary mechanism for cultivating and supporting terrorist activity abroad”. The IRGC 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” (IRGC-QF).
Argentina’s highest criminal court recently 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.”
The Iranian Threat to the United States, Including Within the United States
Last October, FBI Director Christopher Wray testified that:
[T]he Iranians … have directly, or by hiring criminals, mounted assassination attempts against dissidents and high-ranking current and former U.S. government officials, including right here on American soil. And, along those lines, Hezbollah, Iran’s primary strategic partner, has a history of seeding operatives and infrastructure, obtaining money and weapons, and spying in this country going back years.
A month later, Director Wray testified that Iran is “a country that has attempted to assassinate an American journalist, a human rights activist, right smack in New York City and tried to assassinate current and former U.S. officials here on U.S. soil”. He also spoke of the cyber threat by Iran:
I think that sometimes people overlook the fact that Iran is only one of two countries that committed a destructive cyber-attack against the United States, and it has only been a few years since that happened. They have already shown a propensity for that. We saw, not that long ago, an attempted cyberattack from Iran against a children’s hospital in New England. This is an adversary that is engaged in conduct that is brazen and aggressive, and very comparable, in my view, to what we see in terms of lethal targeting.
Matthew Olsen, the Department of Justice’s assistant attorney general for national security, concluded two years ago that:
We see nations such as China, Russia, Iran and North Korea becoming more aggressive and more capable in their nefarious activity than ever before.
[W]e charged four Iranian intelligence agents for conspiring to kidnap a U.S.-based journalist and human rights activist who was speaking out against Iran’s repressive laws and practices.
Iranian government actors have interfered with the systems of a broad range of victims in critical infrastructure sectors.
The Department of Homeland Security’s (DHS) Office of Intelligence and Analysis’ (OIA) “Homeland Threat Assessment 2024” concluded that:
Iran relies on individuals with pre-existing access to the United States for surveillance and lethal plotting — using dual nationals, members of criminal networks, and private investigators — and has attempted plots that do not require international travel for operatives.
Iran has targeted Iranian dissidents in the United States to suppress support for potential anti-regime protests and calls for social and political reform. In early 2023, the DOJ indicted several individuals for plotting to murder a US dissident on behalf of Iran. Tehran had previously subjected the US citizen to death threats, a year-long social media campaign calling for their abduction, and the arrest of a family member in Iran.
Iranian and Chinese intelligence services have hired US-based private investigators to monitor dissidents, suggesting US citizens may wittingly or unwittingly enable activities that result in harassment or physical harm to individuals in the United States.
DOS’s “Country Reports on Terrorism 2022” concluded that “In 2022, Iran increasingly encouraged and plotted attacks against the United States, including against former U.S. officials”, noting that the Department of Justice (DOJ) had “announced that it had disrupted an IRGC-QF-led plot to assassinate former National Security Advisor John Bolton and arrested a suspected Iranian operative accused of planning the assassination”. The document went on to report that:
The IRGC ... has killed U.S. citizens.
Senior al-Qa’ida members continued to reside in Iran, where the authorities still refuse to identify publicly members they know to be living in the country. Iran has allowed AQ facilitators to operate a core facilitation pipeline through Iran since at least 2009, enabling AQ to move funds and fighters to South Asia and Syria, among other locales.
In Iraq, Iran supported various Iran-aligned militia groups in 2022, including the U.S.-designated terrorist groups ... with sophisticated weapons — including increasingly accurate and lethal [drones] support, funding, and training. These groups conducted multiple rocket and UAS attacks on U.S. and coalition facilities across Iraq, as well as attacks in Syria from Iraq in 2022.
Through financial or residency enticements, Iran has facilitated and coerced primarily Shia fighters from Afghanistan and Pakistan to participate in the Assad regime’s brutal crackdown in Syria. These Iran-aligned forces conducted multiple attacks on U.S. forces in Syria.
The IRGC in 2011 plotted a brazen attack against the Saudi ambassador to the United States on American soil.
Hezbollah assisted Iraqi Shia militant and terrorist groups in Iraq who in 2007 attacked the Karbala Provincial Joint Coordination Center, killing five American soldiers.
[I]n 2018, a U.S. federal court found Iran and the IRGC liable for the 1996 Khobar Towers bombing that killed 19 U.S. citizens.
DOS’s Country Reports on Terrorism 2019 had earlier reported that:
KH [Kata’ib Hizballah] launched a rocket attack on an Iraqi military base hosting U.S. and Coalition forces, killing one American civilian contractor and wounding several U.S. and Iraqi service members…. Iran instigated an attack by demonstrators, including Iran-backed terrorists and militia members, on the U.S. Embassy in Baghdad, which resulted in damage to embassy property.
Iranian-sponsored attacks on U.S. troops have continued to the present day. In February, the U.S. carried out “airstrikes in Iraq and Syria ... against Iran's IRGC and affiliated groups ... in what the Biden administration has called a ‘multi-tiered’ response to a deadly drone attack that killed three American soldiers [in Jordan]”. Eleanor Watson reported for CBS News that:
The [Biden] administration blamed the drone strike on the group Islamic Resistance of Iraq, a group of militias backed by Iran. [Defense Secretary Lloyd] Austin ... said it's unclear if Iran knew about the drone attack ahead of time, but without Iran, these attacks wouldn't take place.
“How much Iran knew or didn't know, we don't know — it really doesn't matter because Iran sponsors these groups, it funds these groups, and in some cases, it trains these groups on advanced conventional weapons,” Austin said.
Iranian-backed groups have attacked U.S. forces in Iraq and Syria over 160 times since October.
The Iranian threat is expected to continue into the future. OIA’s “Homeland Threat Assessment 2024” concluded that “Among state actors, we expect Iran to remain the primary sponsor of terrorism and continue its efforts to advance plots against individuals in the United States.” The “Annual Threat Assessment of the U.S. Intelligence Community” issued earlier this year concluded that “Iran ... will continue to directly threaten U.S. persons in the Middle East and remains committed to its decade-long effort to develop surrogate networks inside the United States.”
Hezbollah’s Threat to the United States, Including Within the United States
DOS’s “Country Reports on Terrorism 2022” concluded that “Hezbollah [is] Iran’s primary terrorist proxy group: and explained that:
Hezbollah was designated as an FTO on October 8, 1997 ... . [T]he Lebanon-based radical Shia group takes its ideological inspiration from the Iranian Revolution and the teachings of the late Ayatollah Khomeini. The group generally follows the religious guidance of the Iranian supreme leader, Ali Khamenei. Hezbollah is closely allied with Iran, and the two often work together on shared initiatives, although Hezbollah also occasionally acts independently. Hezbollah continues to share a close relationship with the Syrian regime of Bashar Assad and, like Iran, provides assistance — including fighters — to Syrian regime forces in the Syrian conflict.
Iran continues to provide Hezbollah with most of its funding, training, weapons, and explosives, as well as political, diplomatic, monetary, and organizational aid. Iran’s annual financial backing to Hezbollah — which has been estimated to be hundreds of millions of dollars annually — accounts for the overwhelming majority of the group’s annual budget.
The document then reported that:
Hezbollah operatives have been arrested or tried around the world, including two … in the United States in 2017. One operative arrested in Michigan had identified the availability of explosives precursors in Panama in 2011 and surveilled U.S. and Israeli targets in Panama as well as the Panama Canal during 2011-12. Another operative arrested in New York had surveilled U.S. military and law enforcement facilities from 2003 to 2017.
Hezbollah assisted Iraqi Shia militant and terrorist groups in Iraq who in 2007 attacked the Karbala Provincial Joint Coordination Center, killing five American soldiers.
Hezbollah is responsible for multiple large-scale terrorist attacks, including the 1983 suicide truck bombings of Embassy Beirut and the U.S. Marine barracks [that killed 241 U.S. military personnel]; the 1984 attack on the Embassy Beirut annex; and the 1985 hijacking of TWA Flight 847, during which U.S. Navy diver Robert Stethem was murdered.
My colleague Todd Bensman has also reported on nefarious Hezbollah activities within the United States:
One Hezbollah agent from Lebanon, sent over the Mexico-California border in the trunk of a car in 2003, was caught and prosecuted a few years later in Dearborn, Mich., for raising money for Hezbollah and collecting information on political enemies.
More recently, the government has prosecuted U.S.-based members of Hezbollah’s notorious clandestine “Unit 910”.
Court records from the 2018 prosecution of a New York City-based member of Hezbollah’s Unit 910 named Ali Kourani revealed that the defendant’s father, Muhammad Kourani, had “entered the United States illegally on foot”. U.S. prosecutors convicted the son of collecting intelligence of dual Israeli citizens for potential assassinations for Unit 910 from 2008 through at least 2015 ... .
In 2011, the FBI busted an Iranian-American used-car salesman in an Iranian government plot to have him murder the Saudi ambassador in Washington, D.C. … . Mansour J. Arbabsiar’s plot was quite real; the Iranian intelligence service even sent him a $100,000 down payment for the job. He’s serving a 25-year prison sentence now.
And my colleague Andrew Arthur recently wrote that:
[A] self-proclaimed Hezbollah member [was] caught crossing that border in El Paso, Texas.
...
The alien in question is Basel Bassel Ebbadi, a 22-year-old Lebanese national, and the incident was initially revealed by Jennie Taer at the New York Post … .
Ebbadi was apprehended on March 9 near El Paso, and according to Taer, he was initially forthcoming about his terrorist plans in this country: “While in custody, he was asked what he was doing in the US, to which he replied, ‘I’m going to try to make a bomb’, according to a Border Patrol document.”
The Annual Threat Assessment of the U.S. Intelligence Community concluded that “Lebanese Hizballah will continue to develop its global terrorist capabilities as a complement to the group’s growing conventional military capabilities in the region.”
The Iranian Threat to the World
DOS’s “Country Reports on Terrorism 2022” concluded that “In 2022, Iran continued providing weapons systems and other support to Hamas and other U.S.-designated Palestinian terrorist groups … [who] were behind numerous deadly attacks originating in Gaza and the West Bank.” Of course, last October, Hamas infamously carried out massacres in Israel that President Biden described as “sheer evil” in which, in the words of the president, “More than 1,000 civilians [were] slaughtered — not just killed, slaughtered — in Israel [including] at least 14 American citizens.” “Parents [were] butchered using their bodies to try to protect their children, “babies [were] killed”, “[e]ntire families slain”.
The Annual Threat Assessment of the U.S. Intelligence Community concluded that:
Since October 2023, Iran has encouraged and enabled its various proxies and partners — including Hezbollah, Iranian-backed groups in Iraq and Syria, and the H[o]uthis in Yemen — to conduct strikes against Israeli or U.S. interests in the region … . [including the Houthis’] continued ballistic missile, cruise missile, and [drone] attacks against merchant vessels transiting the Red Sea, which are disrupting international shipping.
Elaborating on the threat to shipping, DOS stated earlier this year that:
Since November, the Houthis have launched unprecedented attacks against international maritime vessels in the Red Sea and Gulf of Aden, as well as military forces positioned in the area to defend the safety and security of commercial shipping. These attacks against international shipping have endangered mariners, disrupted the free flow of commerce, and interfered with navigational rights and freedoms.
Iran itself has directly targeted commercial shipping. DOS’s “Country Reports on Terrorism 2022” reported that “In 2022, Iranian forces continued a pattern of attacks on commercial ships in the Gulf of Oman, including a November 16 drone attack on the Pacific Zircon, a Liberian-flagged, Israeli-affiliated tanker carrying oil.” And, early in April, the IRGC seized an Israeli-linked container ship in the Strait of Hormuz.
“Country Reports on Terrorism 2022” cataloged other nefarious Iranian activities worldwide in that year:
In Yemen, Iran has provided a wide range of weapons, training, advanced equipment such as [drones], and other support to Houthi militants, who engaged in attacks against regional targets in Saudi Arabia and the United Arab Emirates. On at least five occasions in 2022, the U.S. Navy and partner forces interdicted vessels suspected of traveling from Iran to Yemen, with cargoes that included more than 300 tons of missile fuel component and fertilizer that could be used by Houthi militants to make missiles and explosives, as well as ammunition, small arms, and equipment.
Iran pursued or supported terrorist attacks against Israeli targets in 2022, including thwarted plots to attack Israeli tourists in [Turkey] in May and to murder an Israeli citizen in Georgia in November. These plots were being implemented by current and former members of the IRGC-QF.
As in past years, the Iranian government continued supporting terrorist plots or associated activities targeting dissidents and other perceived enemies of the regime. A British intelligence agency publicly reported uncovering at least 10 potential threats emanating from Iran’s government to kidnap or kill individuals in the United Kingdom in 2022. In recent years, Albania, Belgium, and the Netherlands have all either arrested or expelled Iranian government officials implicated in various terrorist plots in their respective territories. Denmark similarly recalled its ambassador from Tehran after learning of an Iran-backed plot to kill an Iranian dissident in its country.
The IRGC continues to provide financial and other material support, training, technology transfer, advanced conventional weapons, guidance, or direction to a broad range of terrorist organizations, including … in Iraq … Bahrain, … Syria and around the Persian Gulf. Iran provides up to $100 million annually in combined support to Palestinian terrorist groups, including Hamas.
Regionally, Iran supported acts of terrorism in Bahrain, Iraq, Lebanon, Syria, and Yemen through proxies and partner groups such as Hezbollah … . Globally, the IRGC-QF and the Ministry of Intelligence and Security remained Iran’s primary actors involved in supporting terrorist recruitment, financing, and plotting across Africa, Asia, Europe, and North and South America.
And the document reported that “In 2012, IRGC-QF operatives were arrested in Turkey and Kenya for plotting attacks. An IRGC operative was convicted in 2017 of espionage for a foreign intelligence service; he had been surveilling a German-Israeli group. In 2018, Germany uncovered 10 IRGC operatives involved in a terrorist plot in Germany.” DOS’s “Country Reports on Terrorism 2019” had concluded that “In the past, Tehran has spent as much as $700 million per year to support terrorist groups, including Hezbollah and Hamas.”
Hezbollah’s Threat to the World
DOS’s “Country Reports on Terrorism 2022” reported that:
[Iran] considers Iraq and Syria vital routes through which it can supply weapons to Hezbollah.
Iran has supplied Hezbollah in Lebanon with thousands of rockets, missiles, and small arms … . Israeli security officials and politicians expressed concerns that Iran was supplying Hezbollah with advanced weapons systems and technologies, as well as assisting the group in creating infrastructure that would permit it to produce its own rockets and missiles … . Iran has provided hundreds of millions of dollars in support of Hezbollah and trained thousands of its fighters at camps in Iran.
In 2012, Hezbollah was responsible for an attack on a passenger bus carrying 42 Israeli tourists at the Burgas Airport in Bulgaria, killing five Israelis and one Bulgarian.
In 2020, judges at the Netherlands-based Special Tribunal for Lebanon found Hezbollah member Salim Ayyash guilty for his central role in the bomb attack in Beirut in 2005 that killed former Lebanese Prime Minister Rafic Hariri. In June, appeals judges sentenced two other Hezbollah members, Hassan Habib Merhi and Hussein Hassan Oneissi, to life imprisonment for their roles as accomplices in the assassination.
And DOS’s “Country Reports on Terrorism 2019” had concluded that:
In July 2012, a suspected Hezbollah operative was detained by Cypriot authorities for allegedly helping plan an attack against Israeli tourists on the island. On March 21, 2013, a Cyprus court found the operative guilty of charges based on his surveillance activities of Israeli tourists.
In October 2014, Peruvian authorities arrested a Hezbollah operative who had been planning to carry out attacks against Israeli and Jewish targets.
The Alien Enemies Act
As I have written, President John Adams signed “An Act respecting Alien Enemies” into law on July 6, 1798. The AEA steeled America for a feared invasion by France, then in the throes of the French Revolution. As Gregory Fehlings has explained, the AEA “authorize[s] the President to arrest, indefinitely detain, and remove alien enemies en masse, without hearing” during wartime. J. Gregory Sidak has written that the AEA contains “[o]ne of the most sweeping delegations of power to the President to be found anywhere”. It has the distinction of being the sole component of the oft-reviled “Alien and Sedition Acts” that has neither been repealed nor allowed to sunset. Further, even the bitterest opponents of the other acts, including Thomas Jefferson and James Madison, felt the AEA to be both necessary and constitutional.
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 insid[i]ous, 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.
The federal government has utilized the AEA during the War of 1812 and during World Wars I and II (when the U.S. detained thousands of alien enemies and removed over a thousand). The Supreme Court noted in 1948 in Ludecke v. Watkins that the AEA “has remained the law of the land, virtually unchanged since 1798”. The Act’s constitutionality has been upheld without exception by federal courts, including the Supreme Court. The AEA remains in the U.S. Code, providing in part that:
Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety. [Emphasis added.]
Is the Alien Enemies Act Constitutional?
In 1946, the District of Columbia Circuit ruled in Citizens Protective League v. Clark1 that the AEA was “constitutional, both as an exercise of power conferred upon the Federal Government and as a grant of power by the Congress to the President”. The court explained that:
If the power to remove alien enemies from its territory in time of war were not included in the powers granted the Federal Government by the Constitution, amendment to add that power would have to be made. Under no concept of government could a nation be held powerless to rid itself of enemies within its borders in time of war, whether the individuals concerned be actually hostile or merely potentially so because of their allegiance.
Unreviewable power in the President to restrain, and to provide for the removal of, alien enemies in time of war is the essence of the [AEA] ... . However jealously we may guard the civil rights of all residents within our borders, neither those considerations nor the “dictates of humanity and national hospitality” can be permitted to impinge upon the overriding necessities of the power to wage war successfully. The President not only has the power, under the broad grants by the Congress, but has the solemn responsibility to make certain that the conduct of war is not only unimpeded but suffers from no threat of impediment.
Two years later, in Ludecke, the Supreme Court ruled that:
The war power is the war power ... . [I]t validly supports the power given to the President by the [AEA] in relation to alien enemies. Nor does it require protracted argument to find no defect in the [AEA] because resort to the courts may be had only to challenge the construction and validity of the statute and to question the existence of the “declared war,” as has been done in this case. The Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights.
[W]e hold that full responsibility for the just exercise of this great power may validly be left where the Congress has constitutionally placed it — on the President ... . The Founders in their wisdom made him not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs. He who was entrusted with such vast powers in relation to the outside world was also entrusted by Congress, almost throughout the whole life of the nation, with the disposition of alien enemies during a state of war. Such a page of history is worth more than a volume of rhetoric.2
Four years later, in Johnson v. Eisentrager, the Supreme Court expounded that:
The essential pattern for seasonable Executive constraint of enemy aliens, not on the basis of individual prepossessions for their native land but on the basis of political and legal relations to the enemy government, was laid down in the very earliest days of the Republic and has endured to this day. It was established by the [AEA] ... . [W]hile the Alien and Sedition Acts of that year provoked a reaction which helped sweep the party of Mr. Jefferson into power in 1800, and though his party proceeded to undo what was regarded as the mischievous legislation of the Federalists, th[e AEA] was never repealed. Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security. This is in keeping with the practices of the most enlightened of nations and has resulted in treatment of alien enemies more considerate than that which has prevailed among any of our enemies and some of our allies. Th[e AEA] was enacted or suffered to continue by men who helped found the Republic and formulate the Bill of Rights, and although it obviously denies enemy aliens the constitutional immunities of citizens, it seems not then to have been supposed that a nation's obligations to its foes could ever be put on a parity with those to its defenders.
The Eisentrager Court noted that:
It is certain that in the white light which beat about the subject in 1798, if there had been the slightest question in the minds of the authors of the Constitution or their contemporaries concerning the constitutionality of the [AEA], it would have appeared. None did.
"The courts, in an unbroken line of cases ... [from] Case of Fries ... in 1799 to Schwarzkopf's case in 1943, have asserted or assumed the validity of the [AEA] and based numerous decisions upon the assumption ... . The judicial view has been without dissent.
At common law “alien enemies have no rights, no privileges, unless by the king's special favour, during the time of war.” [quoting Citizens Protective League quoting Blackstone]
What about the due process due enemy aliens? J. Gregory Sidak has written that:
[The AEA] affords far less protection of individual liberty than do peacetime statutes, which guarantee that an alien will not be deported without the basic rights of due process. This difference is based on the recognition that, in wartime, the President must be able to act quickly to intern or remove persons who, taken as a class, seem likely to jeopardize the nation's security.
Assistant Attorney General Warren elaborated on this rationale:
Inasmuch as the mere presence of the alien enemy in the country might well be found by the President to constitute a source of danger, it would be entirely futile to grant to such a alien enemy a hearing to enable him to contravert the point as to whether his presence was or was not such a source of danger. It is not only in the power of the President to act, but it is his duty to act, in such cases, frequently on suspicion, rather than on proven facts; for the purpose of the statute is largely preventative. War consists quite as much in preventing disaster from happening as in punishing or inflicting disaster upon the foe.
In Ex parte Gilroy,3 the District Court for the Southern District of New York concluded in 1919 that:
The purpose of the [AEA] is self-evident and it is a necessary aid to the executive arm in case of war. The authority to the President to promulgate by proclamation or public act “the manner and degree of the restraint to which they (alien enemies) shall be subject, and in what cases,” is, of course, plenary and not reviewable. Once the person is an alien enemy, obviously the course to be pursued is essentially an executive function, to be exercised in the discretion of the President.
A series of federal district court decisions during World War I made clear that “[T]he sole question to be determined [by a court] is whether ... the petitioner comes within the description ‘natives, citizens, denizens or subjects’ of a hostile nation.”4 In 1946, the D.C. Circuit in Citizens Protective League stated that “The one question, whether the individual involved is or is not an alien enemy, is admitted by the Attorney General to be open to judicial determination.” The court agreed, reasoning that:
“Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of war-making, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.” [citing the Supreme Court’s 1943 decision in Hirabayashi v. United States] As a practical matter, it is inconceivable that before an alien enemy could be removed from the territory of this country in time of war, the President should be compelled to spread upon the public record in a judicial proceeding the method by which the Government may detect enemy activity within our borders and the sources of the information upon which it apprehends individual enemies. No constitutional principle is violated by the lodgment in the President of the power to remove alien enemies without resort or recourse to the courts.
Also in 1946, the 2nd Circuit ruled in United States ex rel. Schlueter v. Watkins5 that:
We agree ... that the statute authorized the making of an order of removal of an alien enemy ... without a hearing of any kind, except on the issue of whether or not the relator actually is an alien enemy ... . When the procedure is through executive action, the statute calls for no hearing in court or elsewhere.
In 1948 in Ludecke, the Supreme Court swept away any doubts as to the matter of judicial review:
As Congress explicitly recognized in the recent Administrative Procedure Act [“APA”], some statutes “preclude judicial review.” ... Barring questions of interpretation and constitutionality, the [AEA] is such a statute … . That such was the scope of the Act is established by controlling contemporaneous construction ... . The very nature of the President's power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion. This view was expressed by Mr. Justice Iredell shortly after the Act was passed, Case of Fries ... and every judge before whom the question has since come has held that the statute barred judicial review. We would so read the Act if it came before us without the impressive gloss of history.
The power with which Congress vested the President had to be executed by him through others … . A war power of the President not subject to judicial review is not transmuted into a judicially reviewable action because the President chooses to have that power exercised within narrower limits than Congress authorized.
[R]esort to the courts may be had only to challenge the construction and validity of the statute and to question the existence of the “declared war[.]” ... The additional question as to whether the person restrained is in fact an alien enemy fourteen years of age or older may also be reviewed by the court.
In Eisentrager, the Supreme Court (though in dicta) reiterated its conclusion in Ludecke:
The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a “declared war” exists. Courts will entertain his plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the [AEA]. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment [citing Ludecke].
[R]esident alien enemies] are entitled only to judicial hearing to determine ... that they are really alien enemies. When that appears, those resident here may be deprived of liberty by Executive action without hearing.
Use of the AEA In Case of Conflict with Iran
How Many Iranian Nationals Are in the United States?
There are, at the very least, over 100,000 Iranian nationals present, legally or illegally, in the United States. From fiscal years 2013 to 2022, the U.S. has granted legal permanent resident (LPR) status to 105,383 persons born in Iran — including 27,830 aliens sponsored by employers and 16,375 randomly selected in the “diversity” visa green card lottery. Of course, this does not consider the 104,525 Iranian natives who became naturalized citizens during this period. The annual LPR numbers are: 12,863 in 2013, 11,615 in 2014, 13,114 in 2015, 13,398 in 2016, 13,791 in 2017, 10,116 in 2018, 6,640 in 2019, 8,805 in 2020, 5,734 in 2021, and 9,407 in 2022. Presumably, the 23,671 Iranians granted permanent residence as refugees or asylees over this period are genuine opponents of their nation’s regime.
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 United States reports that in the 2022/23 academic year, 10,812 foreign students from Iran were attending institutions of higher education in the United States (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 904 Iranian nationals for initial employment as H-1B aliens in specialty occupations.
As to illegal aliens from Iran, DHS reported a suspected in-country visa overstay rate in 2022 of 20.5 percent for Iranian nationals admitted for business or pleasure — that is, one fifth of Iranians on temporary B visas who were required to depart the U.S in 2022 were suspected not to have done so. This compares to an overall suspected overstay rate of 6.9 percent for nationals of all non-Visa Waiver Program countries (other than Canada and Mexico).
What of Iranians entering the U.S. illegally? At least prior to the Biden administration, the number does not seem to have been large. My colleague Todd Bensman has reported that “Some 197 Iranians were apprehended at or between southern ports of entry from 2009 to 2019, according to data provided to the Center for Immigration Studies under a Freedom of Information Act request.”
In February, 2021, U.S. Customs and Border Protection reported that “Yuma Sector Border Patrol agents arrested a group of 11 Iranian citizens who illegally crossed the border into the United States.” And Bensman warned that:
[I]intercontinental human smuggling networks connect the most adversarial nations in the world to the crumbled southern border defenses along established routes … .
Try as American law enforcement stationed abroad might to disrupt them, these smuggling organizations very much still can and do mainline strangers into Texas from countries where Islamic terrorist groups operate.
The U.S. security enterprise takes this threat seriously. Americans were behind the September 2020 bust in Brazil of Reza Sahami, a dual citizen of Canada and Iran who was caught guiding a group of seven Iranian nationals in the city of Assis Brasil on the border of Peru. All seven Iranians possessed fraudulent or altered passports from Israel, Denmark, and Canada. The Sahami organization flew Iranians into Canada on fake passports but also had some smuggled over the southern border.
“Sahami has been smuggling criminals across international borders for over 10 years,” said ICE Attaché for Brazil and Bolivia Robert Fuentes in the scarcely reported 2020 ICE press statement.
What Type of Conflict with Iran Would Enable Use of the AEA?
Predatory Incursions. As the AEA can only be utilized “[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government”, is there a foreseeable scenario short of a declared war under which President Biden or a future president could utilize the AEA against Iranian nationals?
I should first note that in order to qualify under the AEA, an invasion or predatory incursion must be perpetrated, attempted, or threatened against the territory of the United States. Thus, attacks on U.S. troops or American citizens abroad would not qualify (except possibly if the locus was a U.S. embassy). As to attacks on American soil, and assuming that we are not contemplating an “invasion” by the Iranian military, we must ascertain what the AEA means by a “predatory incursion”.
It seems clear that the term “predatory incursion” should be considered roughly equivalent to a raid. The Walker and Webster Combined in a Dictionary of the English Language (1864) defined a raid as a “predatory incursion” and Webster’s New Illustrated Dictionary of the English Language (1911) defined a raid as “a hostile or predatory incursion”. The Collaborative International Dictionary of English cites the 1913 Webster’s Dictionary as defining an “incursion” as “[a] running into; hence, an entering into a territory with hostile intent, a temporary invasion, a predatory or harassing inroad; a raid” and as providing as an example a quote from John Milton: “The Scythian, whose incursions wild Have wasted Sogdiana.”6 This sense of “predatory incursion” holds true to the present day: The Merriam-Webster online dictionary’s first definition of a raid (as a noun) is “a hostile or predatory incursion” and “a surprise attack by a small force”, and its first definition of an incursion is “a hostile entrance into a territory”.
It would certainly seem that if Iran were to commit an atrocity on United States territory equivalent to its 1994 bombing of the Jewish community center in Buenos Aires, this would constitute a “predatory incursion” and allow the president to utilize the AEA against Iranian nationals (or a subset of Iranian nationals). As we have seen, Iran has already attempted to assassinate persons in the United States. Would assassination, or attempted assassinations, trigger the AEA? A strong argument can be made that such acts would constitute predatory incursions.
Interestingly, 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 to deport those Iranian students illegally in the United States. 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.
Could President Carter have utilized the AEA? Since the Americans were taken hostage at the U.S. embassy in Tehran, that could potentially meet the test of being a “predatory incursion … perpetrated … against the territory of the United States”. However, the other test would be whether the hostage taking by Iranian students could be considered an action of a “foreign nation or government”. I’ll leave that one for the history books.
Hezbollah. It is important to note that the AEA only authorizes the apprehension, restraint, securing, and removal of “natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized”. Thus, non-Iranian nationals participating in predatory incursions — such as Lebanese Hezbollah members — would not be subject to an AEA action predicated on the acts of the Iranian government. However, could such non-Iranian nationals be separately subject to an AEA action predicated on the acts of Hezbollah itself?
In order for them to be so subject, Hezbollah would have to qualify as “the hostile nation or government”. Neither the AEA nor Title 50 of the U.S. Code as a whole defines either a “foreign nation” or a “foreign government”. It might be presumed that this was not an oversight by Congress, but rather simply recognition that “everyone knows what nations and governments are”.
But, in any event, the term “foreign government” is defined a number of times in the U.S. Code for particular purposes. For instance, within Title 18 (“Crimes and Criminal Procedure”), section 11 provides that “The term ‘foreign government’, as used in this title except in [certain] sections ... includes any government, faction, or body of insurgents within a country with which the United States is at peace, irrespective of recognition by the United States.” (Emphasis added.) This provision seems to indicate that the phrase “faction, or body of insurgents within a country” does constitute a “foreign government” — even though it is set apart from the term “government” — because the larger term “foreign government” “includes” both the phrase and the term. Similarly, section 798 (“Disclosure of Classified Information” (originating in 1951 legislation)) seems to indicate that “any faction, party, department, agency, bureau, or military force of or within a foreign country” does constitute a foreign government. Section 798 provides in part that:
The term “foreign government” includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States. [Emphasis added.]
Since the term “foreign government” “includes” “any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country”, this seems to indicate that the phrase does constitute a foreign government. (Emphasis added.)
In contrast, however, section 794 (“Gathering or Delivering Defense Information to Aid Foreign Government” (originating in the “Espionage Act of 1917”)) seems to indicate that the phrase “any faction or party or military or naval force within a foreign country” does not constitute a foreign government. Section 794 provides that:
Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States … any document … or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life. [Emphasis added.]
Since the provision states “to any foreign government”, “or” to “any faction or party or military or naval force within a foreign country”, this seems to indicate that the latter phrase does not constitute a foreign government. (Emphasis added.) As Supreme Court Justice Antonin Scalia explained in 2013 in his majority opinion in U.S. v. Woods:
[T]he operative terms are connected by the conjunction “or.” While that can sometimes introduce an appositive — a word or phrase that is synonymous with what precedes it (… “Batman or the Caped Crusader”) — its ordinary use is almost always disjunctive, that is, the words it connects are to “be given separate meanings.”
So, at least for some purposes, the U.S. Code seems to contemplate that governmental factions and parties in a legislature, and bodies of insurgents or other military forces within a country, are considered foreign governments, while elsewhere this seems not to be the case.
While Title 50 does not contain a definition of “foreign government”, section 1801 does contain a definition of “foreign power” for purposes of allowing the president to authorize electronic surveillance to secure foreign intelligence information without a court order:
(1) a foreign government or any component thereof, whether or not recognized by the United States; (2) a faction of a foreign nation or nations, not substantially composed of United States persons; (3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments; (4) a group engaged in international terrorism or activities in preparation therefor; (5) a foreign-based political organization, not substantially composed of United States persons; (6) an entity that is directed and controlled by a foreign government or governments; or (7) an entity not substantially composed of United States persons that is engaged in the international proliferation of weapons of mass destruction.
This language originated with the “Foreign Intelligence Surveillance Act of 1978”. The Senate Judiciary Committee Report stated that the “foreign government” category “would include foreign embassies and consulates and similar ‘official’ foreign governmental establishments which are located in the United States”.7 As to the “faction” category:
[It] is intended to include factions of a foreign nation or nations which are in a contest for power over, or control of the territory of, a foreign nation or nations. The faction must be foreign-based and controlled from abroad. Specifically excluded from this category is any faction of a foreign government or government[s] which is substantially composed of permanent resident aliens or citizens of the United States.8
Thus, in the context of foreign intelligence gathering, a faction may be considered a “foreign power”, but as it does not fall within the separate delineation of “a foreign government or any component thereof”, it would seem not to constitute a foreign government.
Whither Hezbollah? Well, it depends on what the meaning of “foreign nation or government” is.
The CIA World Factbook describes it as a “a major Lebanese political party, militia, and US-designated foreign terrorist organization”. Kali Robinson has written for the Council on Foreign Relations that “Hezbollah is a Shiite Muslim political party and militant group based in Lebanon, where its extensive security apparatus, political organization, and social services network have fostered its reputation as ‘a state within a state’” and that it “controls much of Lebanon’s Shiite-majority areas, including parts of Beirut, southern Lebanon, and the eastern Bekaa Valley region”.
Robinson also reported that:
Hezbollah has been a fixture of the Lebanese government since 1992, when eight of its members were elected to Parliament, and the party has held cabinet positions since 2005… . The most recent national elections, in 2022, saw Hezbollah maintain its 13 seats in Lebanon’s 128-member Parliament, though the party and its allies lost their majority.
Regarding Hezbollah’s political power in Lebanon, Nicholas Casey and Euan Ward noted in the New York Times last October that it “remains a formidable political force that continues to exercise de facto control over parts of the country”.
As to Hezbollah’s military power, Robinson wrote that:
Under the 1989 Taif Agreement, which was brokered by Saudi Arabia and Syria and ended Lebanon’s civil war, Hezbollah was the only militia allowed to keep its arms. The International Institute for Strategic Studies estimated in 2020 that the militia had up to twenty thousand active fighters and some twenty thousand reserves… . [A] 2018 report from the Center for Strategic and International Studies called it “the world’s most heavily armed non-state actor”.
It would certainly be accurate to describe Hezbollah as a faction in a contest for power over, or control of the territory of, Lebanon, as a party, and as a military force within Lebanon. If these attributes are enough to raise an organization to the level of a “foreign government”, then Hezbollah would indeed qualify, and Lebanese nationals could indeed be subject to the AEA based on the actions of Hezbollah.
Conclusion
The president could utilize the Alien Enemy Act’s detention and removal powers against Iranian nationals (or a subset thereof) as necessary should the United States enter into a declared war with Iran, or should Iran perpetrate or attempt a terrorist attack (or likely even an assassination or assassination attempt) on American soil. The president could also potentially utilize these powers against Lebanese nationals (or a subset thereof) should Hezbollah engage in such acts, but only if Hezbollah could be found to qualify as a “foreign government”.
The Immigration and Nationality Act’s statutory procedures and rights accorded aliens would not apply to AEA detention and removal. Under the AEA, as the Supreme Court has ruled, judicial review is only available regarding the construction and constitutionality of the statute, the existence of a triggering act by a hostile foreign government, and the existence of a qualifying relationship (nationality in most cases) between a particular alien and the enemy state.
End Notes
1 155 F.2d 290 (D.C. Cir. 1946).
2 The Court did note that “If the President had not added this express qualification [regarding dangerousness to his proclamation implementing the AEA during WWII], but had conformed his proclamation to the [AEA’s] language, presumably the Attorney General would not have acted arbitrarily but would have utilized some such implied standard as ‘dangerous’ in his exercise of the delegated power.” Was this a throw-away line, or was the Court implying in dicta that applying the AEA to aliens not found to be “dangerous” could result in constitutional infirmities? No subsequent decision has taken the bait.
3 257 F. 110 (S.D. N.Y. 1919).
4 Minotto v. Bradley, 252 F. 600, 604 (N.D. Ill. 1918). See also Ex parte Fronklin. 253 F. 984 (N.D. Miss. 1918) and Ex parte Graber, 247 F. 882 (N.D. Ala. 1918).
5 158 F.2d 853 (2nd Cir. 1946).
6 Additionally, Etymonline, an “online etymology dictionary”, discusses the origin of the noun “foray”:
[L]ate 14c., “predatory incursion,” Scottish, from the verb (14c.), perhaps a back-formation of Middle English forreyer “raider, foragear” (mid-14c.), from Old French forrier, from forrer “to forage,” from forage “fodder; foraging; pillaging, looting” (see forage (n.)). Disused by 18c.; revived by Scott. As a verb from 14c.
7 S. Rep. No. 95-604 at 19 (1977).
8 Id. at 19.