The Government May Deport Alien Hamas Supporters If It Affords Them Due Process of Law

Yes, the government has the power to do this, but it must be done in the right way.

Author’s Note: This is the second in a series of articles on the Trump administration’s effort to remove several legal aliens based on a finding by the secretary of state, under Section 1227 of federal immigration law, that their continued presence in the United States “would have potentially serious foreign policy consequences.” (See the first piece here.)

I n the first post of this series, I addressed the Trump administration’s tactics of making unnecessary and potentially dangerous arrests even though the legal aliens at issue are not accused of crimes, much less violent crimes, and doing so for no better reason than to forum shop. Now, I turn to an even tougher question: Should the government be trying to remove legal aliens based, at least in part, on speech and activity that would be First Amendment–protected if committed by an American in the United States?

I contended in the first post that the overbearing manner in which the administration is carrying out this initiative conveys a lack of confidence in its legal position, even though I believe that position has merit. But even assuming I am right, the technical soundness of the government’s argument is not necessarily the dispositive consideration. As Jeff Blehar contends, whether the government may legitimately deport lawful aliens on ideological grounds is a separate question from whether it ought to do so.

For what it’s worth, I am a “yes” on this question. But make no mistake, it’s a very tough question.

During the Cold War, similar questions were pressed regarding communism. The difficulty of resolving — or trying to resolve, however inconclusively — the tension between permitting robust political dissent and securing the nation against foreign threats to our security is illustrated by the fraught history of the McCarran Internal Security Act of 1950 (see Title 50, U.S. Code §§ 781 et seq.). Significantly for our purposes, that includes the history of the McCarran-Walter Act of 1952, which provided for the deportation of aliens who had either been members of the Communist Party, advocated the forcible overthrow of the U.S. government, or were associated with “totalitarian” or “subversive” organizations.

Much of that law is still on the books — not surprisingly, the relevant subsection is the immigration law neighbor of the “foreign policy” exclusion provision that Secretary of State Marco Rubio is relying on in the efforts to remove legal aliens. That is, Rubio is relying on Section 1182(a)(3)(C); the statute’s next subsection, (a)(3)(D) governs exclusion of aliens based on their membership in a “totalitarian party,” expressly including the Communist Party — either in the United States or overseas.

The bottom line is this: Congress has given the president and the secretary of state broad powers to exclude or remove aliens who advocate counter-constitutional, totalitarian ideologies that have a demonstrable history of catalyzing violent radicalism. The fact that the Constitution protects the right of Americans to adhere to such noxious ideologies, and to advocate them as long as the advocacy does not cross into incitement of violence and other criminality, does not mean we have to indulge the presence of radical aliens who spout the tenets of such ideologies.

That said, while the government may exclude and deport such aliens, it must do so consistent with due process of law. So said the Supreme Court in, for example, Kwon Hai Chew v. Colding (1953). There, the justices acknowledged that the Truman administration had the power to exclude a legal alien on national security grounds but required that the alien be given habeas corpus rights — i.e., notice of the grounds on which he was being detained and excluded, and an opportunity to be heard in court in opposition to the government’s action.

That is the theme here: Yes, the government has the power to do this, but it must be done in the right way. The courts should give the Trump administration a wide berth on the political determination of what aliens should be expelled; they should insist, nevertheless, on due process of law.

Once Congress began systematically regulating immigration in the late 19th century, it was most concerned about alien anarchists and communists — the point being that they are violent and antithetical to our Constitution. Today, while we still have anarchists and communists, a cognate ideology is sharia supremacism, sometimes called “radical Islam,” “political Islam,” or “Islamist” ideology. It is a comprehensive, counter-constitutional, anti-Western political program rooted in a fundamentalist interpretation of Muslim scripture. Sharia supremacism seeks conquest over perceived enemies of Islam. It is inherently antisemitic. It inexorably generates violent jihad and lesser means of coercion. Its objective is always to implement and spread sharia, Islam’s law and societal framework. It cannot coexist peacefully with American and Western conceptions of liberty and equality — indeed, it defines itself by its opposition to the West, which it regards as a threat to Islam.

Having been on this beat since I prosecuted jihadists in the 1990s, I’ve thought long and hard about how to shield the United States from sharia supremacist ideology while adhering to due process and other constitutional principles. Based on that, I support the removal from the United States of pro-Hamas agitators, including those who cagily conceal their support for jihadism and Jew-hatred.

For years, as most comprehensively related in The Grand Jihad, my 2010 book on the Muslim Brotherhood’s conquest strategy in the West (which has made stunning inroads in Western Europe in the ensuing 15 years), I related that the sharia supremacists’ most effective project has been the fixture it has made of the Muslim Students Association on university campuses. The MSA is not a social club; it is a sharia supremacist indoctrination program in which support for Hamas (the Brotherhood’s Palestinian branch) is a priority.

After starting out in the mid-Sixties with just a handful of chapters in the Midwestern United States, the MSA now boasts hundreds of chapters at campuses across North America. These are boiling pots of campus agitation. MSA chapters (under various names) collaborate with other sharia supremacist groups, especially (a) Muslim legal activists, (b) CAIR (the Council on American–Islamic Relations), a pro-Hamas creation of the Brotherhood that masquerades as a civil rights organization, and (c) the progressive base of the Democratic Party. Over three generations, the MSA has been so successful in cultivating activists that it eventually gave birth to the Islamic Society of North America, the largest, best-networked sharia supremacist group in the United States.

These Islamist organizations have gone to school on the West, even as we remain willfully blind to their alliances and objectives. They exploit American freedoms of expression and association, liberties that are anathema in the sharia supremacist Muslim Middle East, whence many student aliens come to our country. And they are shrewd operators: Their agenda is Jew-hatred, anti-Americanism, and support for jihadism against Israel and the West; but they usually avoid openly championing (or even mentioning) Hamas and Hezbollah, knowing they have long been designated foreign terrorist organizations in federal law, such that supporting them can be a basis for criminal prosecution, civil penalties, and removal or exclusion from our country.

Instead, student agitators, many of whom are legal aliens, speak in code: They would have you believe their opposition is merely to the Israeli government, which they falsely accuse of genocide and war crimes, while demanding that universities and other Western institutions ostracize Israel and divest from it and from entities that do business with it. These stratagems are simply the political, legal, and public relations components of the Brotherhood’s jihad to destroy the Jewish state — the jihad in which Hamas, Hezbollah, the Houthis, and their sponsors in Iran are the forcible components. Two sides of the same coin. But by fitting their agitation (mostly) into the ambit of what is First Amendment–protected activity in America, the student aliens studiously support the jihad and its objectives — training their mayhem against the jihadists’ enemies while avoiding too much reference to the jihadists themselves.

If I were Secretary Rubio, I would exclude every one of these sharia supremacists from the United States. As I have argued for many years, we should also tighten up our immigration laws to make unapologetically clear that adherence to sharia supremacism — like adherence to other counter-constitutional political ideologies such as communism — is a basis to exclude and remove aliens (of any immigration status, including lawful permanent resident aliens) from the United States. An alien’s entry and presence in the United States is a privilege, not a right, and the Constitution does not mandate that we abide in the case of aliens the same anti-American speech and ideologies for which Congress may not penalize American citizens.

All that said, regardless of how noxious their speech and ideologies are, the removal of lawful aliens from the United States must be consistent with due process of law. And to reemphasize what I stressed in the first post, the government should not resort to aggressive criminal-investigative tactics when it is not dealing with people it accuses of crime, and when it can achieve its lawful objectives without legerdemain. That judges — whether willful progressives or just plain sticklers for the rules — are sure to gum up the works a bit is not a rationale for flouting due process. Governments encouraged to ride roughshod over process become authoritarian; once that happens, the abuses of power won’t be confined to alien radicals (as many law firms can now attest).

I am attracted to the logic of Secretary Rubio’s assertion that if the government can properly exclude an alien from entering our country over radical views, it should be able to remove aliens from our country on those same grounds. But while the secretary’s point is logically unimpeachable, and probably true in terms of result (i.e., the government may ultimately remove aliens on the same grounds that support excluding them), it is simply not true as a matter of due process.

As we shall see, as statutory law has been construed by federal jurisprudence, there is not perfect symmetry between the standards for excluding and for removing aliens. Once aliens enter our country lawfully and establish ties to it — proceeding from temporary visa entries to more enduring immigrant status and finally to lawful permanent resident alien status, the highest class that approaches, but does not equal, citizenship — the Supreme Court has held that they have due process rights superior to both illegal immigrants and aliens who have never entered the United States.

There seems to be a lot of confusion about this — especially among the Trump political base, which habitually confounds an insistence on due process of law with resistance to immigration enforcement or even support for terrorism. This is strange. Were it not for our constitutional commitment to due process, the federal housing that President Trump entered this year might have been in Leavenworth rather than Washington.

Due process is a core component of law enforcement (something it was once unnecessary to remind the Justice Department). A judge who admonishes the government that it must honor the right of aliens to challenge detention and deportation is not usurping the power of the president and his secretary of state to direct American foreign policy. Such a judge is not even saying that the government may not deport lawful aliens on grounds that raise profound First Amendment issues. What the courts are saying, what the law is saying, is that the government must comply with the quantum of due process that lawful aliens are owed. It cannot subject them to summary deportation with no judicial oversight.

The Justice Department’s solemn responsibility is to enforce the law faithfully, not circumvent or undermine it.