Does the U.S. have a 210 year-old legal basis for removing all non-citizen Muslims from the U.S.?

Mencius Moldbug sent me an e-mail in which the subject line said,

Alien Enemies Act of 1798—still in force

along with a link to the relevant section of the U.S. Code (the laws of the United States), which reads as follows:

TITLE 50 > CHAPTER 3 > � 21
� 21. Restraint, regulation, and removal

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.

I read it quickly and wrote back to him:

Right, this was what was used in WWII to confine Germans, Japanese, and Italians. So it was the Sedition Act and other acts that were repealed, not the Alien Act. I had forgotten about that.

But this is of no use to Martel Sobieskey’s plan to makes all enemy aliens register with the government, as it only relates to subjects of states with which we are in a state of war.

It remains the case that we would have to have radically new laws to do deal with the Muslim problem.

Mencius replies:

Nope—parse the text again:

“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 … “

My italics on the “or.” Thus the “predatory incursion” clause is clearly an alternative to the other trigger, the declared state of war. Moreover, “nation or government” clearly takes care of stateless actors; the word “nation” in the context cannot be inoperative (the phrase cannot be read simply as “government”), and thus obviously means what we would now call “ethnicity” (from Latin natus, birth, as of course you know).

Thus, legal authorization to deport all Muslims, Flemings, Eskimos, or any other ethnic group that perpetrates predatory incursions, is clearly on the books. It is the will that is lacking, not the law.

LA replies:

Interesting, but has “nation” ever been interpreted that way?

As for predatory incursion, that still means a military incursion, doesn’t it?

However, I admit this has nice possibilities. I suppose predatory incursion could be reasonably interpreted to cover the concerted Muslim program to expand sharia in America and subvert our laws and institutions. As Sam Solomon has pointed out, the evidence for this program is seen in the Muslim law; in the exemplary life of Muhammad when he immigrated to and then took over Medina; in historical Muslim practice; and in current Muslim practice in this country and elsewhere. Then we show global Muslim support for the spread-sharia program in the form of popular adherence to those teachings, and we further show that Muslims consider themselves to be a “nation,” and we will have demonstrated that Islam is a nation that is perpetrating a predatory incursion against the United States. Which means, voil�, that all Muslim non-citizens over the age of 14 can be treated as enemy aliens.

Furthermore, going beyond Martel Sobieskey, who, despite his doubly warlike name, seeks only to register the Muslims, the law says that “all natives … or subjects of the hostile nation … 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.” [Italics added.]

So there you have it: Assuming the above arguments stand, under the Alien Enemies Act of 1798 we can remove from America all non-citizen Muslims over the age of 14. And, curiously, there’s nothing in the law about merely registering them. The purpose of the law is to restrain them and/or remove them.

However, I suppose that we already have the power to remove legal non-citizens. After all, does a permanent legal resident have the right to be in America, or only the privilege, which privilege can be revoked? I don’t know the answer.

Let’s also remember that, at least as of a couple of years ago when I last checked, 59 percent of Muslims in the U.S. are immigrants, and probably the majority of those are not citizens. So we could remove, say, a third of all Muslims over the age of 14. This does not solve the Muslim problem, but it would be a huge first step.

Further, it goes without saying that once Muslims are determined to be enemy aliens, they could no longer immigrate here.

So: all Muslim immigration ceases, a huge chunk of the Muslim population is removed, and the reversal of the Islamization of America would be well underway

* * *

On another point, I think it’s reasonable to assume that under the law apostates would not be considered enemy aliens, since they are not subjects of Islam and its law, and, indeed, by renouncing Islam they have put their lives in jeopardy. How many declared Muslim apostates are there in America? I would guess very few. I suppose it’s likely that if the policy I’m proposing were put into effect, the number of Muslims in the U.S. claiming to be apostates would substantially increase, in which case the government would have to examine their background to verify the claim.

I would guess that genuine apostates would have a long record of avoiding all contact with the Muslim umma and the Muslim way of life, of telling non-Muslim friends that they are apostates, and, at least in private, of criticizing Islam and stating non-Islamic ideas.

Mencius Moldbug writes:

I think 9/11 fits the 1798 definition of “predatory incursion” the way a glove fits a hand. The founders would certainly recognize it as a military act. To a sheep, every calamity is an accident. Sheep falls in a well? Accident. Sheep eaten by a wolf? Accident. I am hardly one to idolize the founders, but sheep they were not.

I have no idea what a contemporary lawyer would make of “nation,” but certainly in 1798 it meant “ethne,” ie, tribe. The universal equation of “nation” with “government” is relatively recent, which is why “nation or government” strikes the modern reader as a redundancy. But a standard rule of textual reading in law is to assume that no language is meant to be inoperative, so “nation or government” can’t mean “government or government.” I see no other interpretation.

LA replies:

It can be argued that the spread of sharia is a function of the demographic spread of Muslims per se, and therefore it is, effectively, the whole nation of Islam that threatens us through sharia. With the 9/11 attack, that is a much more extreme event and much harder to prove to be an expression of the Islamic nation as such, with which all Muslims in the U.S. must be associated. The 9/11 attack could be seen as an act by al Qaeda, not by Islam. But the spread of Muslim populations and the resulting spread of sharia is an act by Islam itself.

I agree with you that the Founders would have considered this to be a more straightforward decision than we do.

Terry Morris writes:

“I suppose it’s likely that if the policy I’m proposing were put into effect, the number of Muslims in the U.S. claiming to be apostates would substantially increase, in which case the government would have to examine their background to see if there is anything to the claim.”

Register all professed apostates.

LA replies:

Interesting. And I’m sure that the sincere apostates who are on our side against Islam would not mind this but would welcome it. They, better than anyone, understand the problem we have to deal with and would want to cooperate.

LA continues:

On further thought, there is more to Mencius’s view of the law’s applicability to 9/11 than I acknowledged.

Let’s look again at the law:

Whenever … ANY … predatory incursion is perpetrated, attempted or threatened against the territory of the United States by any foreign nation …, and the President makes public proclamation of the event, ALL natives, citizens, denizens, or subjects of the hostile nation … shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

Now. granting Mencius’s idea that nation means an ethos, not a government, then, obviously, since an ethnos doesn’t have a state apparatus through which it officially acts, any action it takes will not be carried out officially in the name of the entire ethnos, as is the case with an official state act, nor will it be carried out by all members of the ethnos. It will be carried out by only SOME members of the ethnos, who are not acting officially in the name of the entire ethnos. Further, we know that a substantial part of the world Islamic population does support al Qaeda’s attacks on America, and that such attacks are mandated and called for by islamic law. So the 9/11 attack and other terrorist attempts on America could reasonably be said to be predatory incursions perpetrated and attempted against the territory of the United States by a foreign nation.

And then notice in the law that even though only SOME members of that nation may have attacked us, ALL members of that tribe who are not U.S. citizens are subject to be removed as alien enemies.

If anyone thinks this discussion is off the planet (I know there are a few of you out there), try to imagine that the 9/11 attack had occurred not in 2001 but in pre 1960s, pre-modern-liberal America, say in 1950 or 1920. Do you think that president of the United States would have rushed to assure the Moslems that they are a religion of peace and to outlaw any “ethnic profiling” used against them? No. I think the Alien Enemies Act would have been invoked and non-citizen Muslims deported. Remember that President Eisenhower, not exactly an extreme right-winger, rounded up and deported large numbers of Mexican illegal aliens in Operation Wetback (yep, that’s what they called it) in the 1950s, with no one being upset about it. America was still a country then, and didn’t doubt its right to defend its laws, its sovereignty and its safety. And since the relatively sane, non-suicidal America of the pre-modern-liberal era is a reasonable touchstone, I think we have here an arguable case, not a crackpot case, to apply the Alien Enemies Act against Muslims on the basis of the 9/11 attack and other attempted terrorist attacks.

LA continues:

My chain of reasoning about 9/11 could break down if there is a requirement that for any act to be seen as the act of a “nation,” it must have been ordered by the acknowledged head of that nation. An ethnos, a nation, may not have a government, but it still has acknowledged leaders. In which case an act committed at the behest of one powerful individual in that “nation,” who is nevertheless not the head of the entire nation, would not be seen as an act by that nation.

It would be fascinating to know if there is any case law on this. I doubt there is, because any nation or government that attacked us and that had subjects of that nation or government living in the U.S., were governments, not non-state nations. However, perhaps there were instances where an Indian tribe attacked the United States, and some members of that tribe were living as non-citzen legal residents under the laws of the United States, and were expelled under the Alien Act. Seems very unlikely, though.

Mencius writes:

For anyone who is interested in the period during which this law was passed—I strongly recommend my favorite history of the early United States, Albert Beveridge’s life of John Marshall (1916).

It’s available free on Google Books. Beveridge had been a Senator himself before he retired to write history, and his genius for distilling historical politics to the pith is unsurpassed.

Beveridge is not a big fan of the Alien and Sedition Acts, considering them to be politically foolish. However, his biography of Marshall, a High Federalist, is written from something quite like a High Federalist take itself, rendering the motivations behind the Alien Enemies Act extremely salient—and relevant to today. From Vol. II, p: 382:

In vain did the Federalists plead to the people, as they had urged in the debate in Congress, that these laws were justified by events; in vain did they point out the presence in America of large numbers of foreigners who were active and bitter against the American Government; in vain did they read to citizens the abuse published in newspapers against the Administration and cite the fact that the editors of these libelous sheets were aliens.

The “foreigners” in question were the French, of course, and the Federalists were quite justifiably terrified that the virus of Robespierre would spread to Boston. For a general discussion of this perspective—Beveridge, of course, is quite sympathetic—see chapter 1, volume II.

I’ve dug up the links, so you don’t have to:

Vol. I, Vol. II, Vol. III, Vol. IV

Beveridge’s life apparently remains the standard academic biography of Marshall, which is quite remarkable in itself. For me, it was as if the Revolutionary era had been filmed in color for the first time.

Your mileage may vary, of course.

LA replies:

Looks like great reading. But in 1798 Robespierre had been dead and Jacobinism overthrown for four years. So at that point France was still in conflict with Britain and other countries and was still a big problem to the U.S., but it could not have been seeking to spread Jacobin-style revolution to the U.S., as it had been attempting to do in the early 1790s.

But perhaps the virus, as you put it, even though out of power in France, was still active in the U.S. Certainly the opponents of the Jeffersonians saw them as Jacobin style revolutionaries up through the election of 1800.

LA writes:

Predictably, Jeff in England has written one of his haranguing e-mails telling me I’m hopelessly far out on the fringe and making myself irrelevant. Here are choice phrases culled from his e-mail:

out there on the irrelevant fringe … pure irrelevant fantasy … far from reality … mirror images of Muslims wanting an Islamic state in America or the UK … ideas are way out there and not worth thinking about … stuck in the past dreaming of a traditional white Christian conservatism which can never return … pursuing these insane fantasies a la Seiyo and Moldbug … crazy irrelevant theory … you’d rather play the Pied Piper leading the lunatic fringe yap on about their lunatic fantasies.

So, according to Jeff, even to talk about removing non-citizen Muslims from the U.S. marks one as a nutty extremist. This shows how false Jeff’s position has been all along. Previously he has said that he opposes Muslim immigration, but that once people are here, we have to “treat them equally” and leave them here. Now it turns out that according to him even non-citizen aliens have an unquestionable right to stay here for life (and, of course, to become citizens) and that to state otherwise makes one a lunatic. I think Jeff is the one who is off the chart as far as any kind of serious resistance to Islamization is concerned.

It’s quite ironic. Jeff has, along with me, consistently criticized and denounced the Islam critics who never advocate stopping Muslim immigration. So, for Jeff, it’s an outrage to warn against Islamization while refusing to call for the end of Muslim immigration. But if one warns about Islamization, and calls for the end of Muslim immigration but also calls for the removal of non-citizen Muslim aliens, then one is on the lunatic fringe. Speaking of fringes, Jeff has marked out a very narrow fringe of acceptable behavior indeed. If you fail to support the end of Muslim immigration, you’re a hopeless hypocrite, coward, and Usual Suspect, but if you support the end of Muslim immigration and support the removal of non-citizen Muslims, you’re nuts. Only Jeff’s precise position is sane, sound, courageous, and honest.

LA continues:

I wrote at FrontPage Magazine in 2004, before I was a mote in Jeff’s eye:

There is no reason for us to allow Islamic fundamentalists to remain in this country and become citizens. If we lack the will even to deport non-citizen Wahhabis and jihadis, then we might as well lie down and surrender to the global jihad right now.

Thus even before Jeff began reading VFR, I had been advocating the deportation of Muslim legal resident aliens. Yet now Jeff seems to suggest that I’m moving to some new and whacky extreme by advocating what I’ve been advocating all along.

Jeff is a nice guy, but he is a bit like those callers to the Rush Limbaugh show who say, “Rush, I’ve been a staunch conservative all my life. But when you call for lower taxes and a strong national defense, well, that’s it, Rush, you’ve gone too far.”

Katya writes:

On your thread about the possibility of the Alien Act being used to deport Moslems, you might wish to take into account in your discussion of the concept of “nation” that, in Islam, the “umma” is the entire Moslem “community”, people or nation, whether it is within an islamic society or, as in the West, amongst those whom Moslems regard as outside their “nation” —- the non-believers. It is the fact and reality that there exist those of us outside the “umma” which mandates that Moslems wage Jihad, violent and by stealth (social, educational, legal, financial, etc) against these non-members . Islam has actually perverted the concept of nation into a justification for world domination, whereas our Alien Act is the recognition of our right not to be forced into, or destroyed, by a perverted understanding of the nation.

Richard H. writes:

The position of Mencius has a serious problem, the founders had a Westphalian understanding of the nation. The idea of ethne and being separate from some sort of state was foreign to them.

We have similar problems in both Muslims and Mexican illegal immigration and associated smuggling. Mexico sees the danger they are in because of illegal immigration and have made some effort to stop it and the associated lawlessness. Since the lawlessness is not approved by the Mexican Government the Alien Enemy Act does not apply to them. There are other laws that can be brought to bear against the illegals if the will exists in the government to do it.

The Ummah, however, is not a Westphalian state. I would contend that a Muslim Nation does not exist in the normally used definition of the word. Individual Muslim countries have, in fact, been at war with each other for a very long time. The Caliphate was a dictatorship that any westerner would recognize. To go one further, the Caliphate was also what we recognize as an Imperial State - an Empire. The Ummah today is nothing approaching an Empire, nor even a Westphalian state, it is too fractured among various ethnic groups, many of which hate each other (e.g. Arab vs. Persian), and different sects of Islam who also hate each other.

Unless we redefine the term “nation” such that it is emptied of any meaning (i.e. an inbred group of people with a common language, culture, and hope for the future), then the Enemy Alien Act can not be part of our arsenal to combat the problems we face. The only way we will be able to combat that problem, is admit we have a real problem and simply act in self preservation by deporting our enemies (citizenship can be revoked if they are naturalized) and forbidding the immigration of anyone that adheres to Islam. We have no moral obligation to harbor our enemies. In fact, we have the moral obligation to rid ourselves of them, for the sake of our children, and the rest of our posterity.

Posted by Lawrence Auster at December 13, 2008 12:15 AM | Send