Enemy Aliens

First Amendment to the Constitution of the United States

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

Basic Right

It is a basic tenet of American citizenship:  the First Amendment.   We summarize it simply; we Americans have “freedom of speech”.  That’s a direct quote from the Amendment by the way; “Congress shall make no law…abridging the freedom of speech or of the press…”.  And we all have a basic understanding what that means.  Americans can think and say our politics view, without “the government” coming against us.  We don’t fear arrest for “bad-speak”.  But there are limits. It often takes the entire stretch of adolescence to understand that “free speech” doesn’t apply when talking to your parents, or your employer. We all tried it.

Our current understanding of the First Amendment took some figuring out.  The second President of the United States, John Adams, lived in a time almost as politically ugly as our own.   I mean, his Vice President, Thomas Jefferson said of Adams:

“(He’s) A blind, bald, crippled toothless man who is a hideous hermaphroditic character with neither the force and fitness of a man, not the gentleness and sensibility of a woman.”

Of course, Adam’s responded, calling Jefferson a:

 “…(M)ean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.”

 Adams and Jefferson had a conflicted relationship.   They were close at the writing of the Declaration in the 1770’s, and would become fast pen-pals after Jefferson left office in 1808.  But in the middle thirty years, they were arch-enemies.

Thin Skin

Not to continue insulting, but Adams was notoriously thin-skinned.  And when some of the insults came from new immigrants to the still-new United States, he did something about them.  Adams and his Federalist Congress authored the Alien and Sedition Acts.  They lengthened the time it took to earn US citizenship, and they restricted the “free speech” rights of those not yet citizens.  The Sedition Act went even farther, making it illegal for even citizens to criticize the President.  Some newspapers publishers were jailed.

This was all before Marbury v Madison (1803),  when the United States Supreme Court claimed the power of judicial review.  The Sedition Act, and most of the Alien Acts expired before they were ever tested in Court. Today, most scholars see that Presidential “muzzling” as unconstitutional, a violation of “free speech”.  That is, except for one exception, a part of the Alien Act which remains in our current laws.  It is codified as 50 U.S. Code § 21:  Restraint, Regulation and Removal.

50 US Code

It allows for any citizens above the age of fourteen of a foreign nation that has declared war on the United States, or incurred or invaded the US, “…shall be liable to be apprehended, restrained, secured, and removed as alien enemies.”

That ancient (1798) law was used to detain British citizens in the War of 1812, and German citizens during World War I. And most infamously, it was the legal structure beneath Executive Order 9066 that established Japanese/American internment camps of World War II. (A brief reminder:  during World War II Japanese citizens, naturalized Americans born in Japan, and American-born citizens of Japanese ancestry were rounded up and put in “internment camps”.   That action was confirmed by the 1944 US Supreme Court in Korematsu v United States. It was only “rebuked” by the Court in 2018 in Trump v Hawaii.  It has never been directly overturned.)

Green Card

Which brings us literally, to the present.   This week, Mahmoud Khalil was arrested.  Khalil is a graduate student at Columbia University and a Palestinian citizen.  He is in the United States with a permanent visa, what is termed a “green card”.  That gives him the right to stay, work, and live in the United States.  And he planned on doing so, finishing up his graduate degree in engineering.  He is married, and his wife is eight months pregnant (her name has not been released). 

In general, permanent residents of the United States have most of the same “First Amendment” rights as citizens.  The only limitations are in campaign contributions:  only US citizens can donate to Federal political campaigns.  But the current Trump Administration has decided to reach back to John Adam’s Alien Act to arrest Khalil for his activities in support of the Palestinians during the protests at Columbia University last year. 

Fait d’Accompli

 They are correlating support for the Palestinian cause as support for the terrorist group Hamas.   Khalil was a spokesman for those Columbia students protesting the Israeli attacks on Gaza.   Trump has declared those protests “anti-Semitic”, and ordered that non-citizen participants be rounded up and deported.  They are now, “enemy aliens”.

Khalil was arrested, then whisked from Manhattan to an ICE holding center (jail) in Louisiana, far away from his wife, lawyers, and the Federal Courts of the Southern District of New York that have jurisdiction over his case.   Like many of the ICE actions under Trump, it’s clear that they aren’t interested in dealing with the “legality” of Court decisions.  If ICE can move fast enough, hiding detainees in far-away jails, then using military transports to dump them in some foreign country, they don’t have to “worry” what the Federal Courts have to say.  As the French that Adam’s disliked so much say, it’s a “fait d’acompli”. 

Nightmare Progression

Many of my “progressive” friends are split over what happened in the Middle East in the past year and a half.   The Hamas terrorist attack on October 7^th was outrageous and reprehensible.  But the Israel attack on the citizens of Gaza, regardless of whether they were Hamas or not, was equally, and in some eyes, even more, reprehensible.  It divided the Democratic Party, so much so that it may have cost America the Trump Presidency instead of Harris.  

But what’s happening to Khalil is a “Progressive” nightmare.  He did exactly what we thought was “protected” by the First Amendment,  that “…Americans can think and say our politics view, without ‘the government’ coming against us.”   Now, by a twist of a phrase, an arbitrary correlation by the White House, a permanent resident of the United States, a young man with a child on the way, is likely to be thrown out of our Nation.  What’s next?

Martin Niemoller, the German-Lutheran Pastor who stood against the Nazis, put it this way:

First they came for the Communists, and I did not speak out
Because I was not a Communist.
Then they came for the Socialists, and I did not speak out
Because I was not a Socialist.
Then they came for the trade unionists, and I did not speak out
Because I was not a trade unionist.
Then they came for the Jews, and I did not speak out
Because I was not a Jew.

Then they came for me,
And there was no one left to speak out for me.

They came for Khalil.