Deploying the Alien Enemies Act Against Iran

I wrote last May that the president could utilize the Alien Enemies Act’s (AEA) summary detention and removal powers against Iranian nationals should the United States enter into a declared war with Iran, or should Iran perpetrate or attempt a terrorist attack on American soil. Following President Trump’s seemingly mortal blow to the Iranian regime’s nuclear weapons program, the prospect of Iranian terror on our shores seems more likely than ever. NBC News has reported that “Iran sent a message to President Trump at the G7 summit that if he ordered strikes on Iran’s nuclear facilities, then Iran could activate sleeper cells in the U.S. to launch terror attacks, according to two U.S. officials.” Customs and Border Protection Commissioner Rodney Scott sent a memo over the weekend warning that “Though we have not received any specific credible threats to share with you all currently, the threat of sleeper cells or sympathizers acting on their own, or at the behest of Iran has never been higher.”

The U.S. State Department (DOS) has labeled the Iranian regime, a designated state sponsor of terrorism for four decades, “the world’s worst state sponsor of terrorism”, having “a unique place among the governments of the world in its use of terrorism as a central tool of its statecraft”. 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.

The presence of Iranian operatives in the U.S. could have catastrophic consequences. Last November, President Biden’s Attorney General Merrick Garland announced charges against “an asset of the Iranian regime … tasked … [with] further[ing] Iran’s assassination plots against its targets, including President-elect Donald Trump” (here is the complaint).

DOS’s “Country Reports on Terrorism 2023” noted that DOJ had charged “three individuals connected with Iran in a plot to assassinate an Iranian dissident in New York City” and that “In recent years, Albania, Belgium, and the Netherlands have all either arrested, convicted, or expelled Iranian government officials implicated in various terrorist plots in their respective territories.” The Department of Homeland Security’s Office of Intelligence and Analysis’s “Homeland Threat Assessment 2025” concluded that “we expect Iran to remain the primary sponsor of terrorism and continue its efforts to advance plots against individuals — including current and former US officials — in the United States” and “continue to pursue [Iranian] dissidents in the Homeland”. During the Biden administration, the U.S. Intelligence Community’s 2024 “Annual Threat Assessment” concluded that Iran “remains committed to its decade-long effort to develop surrogate networks inside the United States”. The 2025 “Annual Threat Assessment” used identical language.

Last April, Argentina’s highest criminal court ruled that “Hezbollah militants responding to ‘a political and strategic design’ by Iran” carried out the 1994 bombing of a Jewish community center in Buenos Aires, Argentina, that killed 85 people.” Reuters reported that “prosecutors ha[d] charged top Iranian officials and members of Iran-backed … Hezbollah with ordering the bombing”.

And as DOS’s “Country Reports on Terrorism 2022” concluded, Iranian proxies have targeted and killed U.S. service members — “in 2018, a U.S. federal court found Iran and the IRGC liable for the 1996 Khobar Towers bombing [in Saudi Arabia] that killed 19 U.S. citizens”. Last February, the U.S. carried out “airstrikes in Iraq and Syria … against Iran’s IRGC and affiliated groups … in … response to a deadly drone attack that killed three American soldiers [in Jordan]”.

Why the Alien Enemies Act?

There are, at the very least, 100,000 Iranian nationals present, legally or illegally, in the U.S. From fiscal years 2014 to 2023, the U.S. has granted lawful permanent resident status to 103,980 persons born in Iran. As to “temporary” visitors, in fiscal year 2023 alone, DOS issued 17,634 nonimmigrant visas to Iranian nationals. The Institute of International Education’s annual census of international students reports that in the 2023/24 academic year, 12,430 Iranian students were attending American institutions of higher education (10,129 as graduate students and 1,680 participating in Optional Practical Training with U.S. employers), with 46 percent studying engineering, 13 percent math and computer science, and 14 percent physical and life sciences. In 2024, U.S. Citizenship and Immigration Services approved petitions for 857 Iranians for initial employment as H-1B aliens in high-tech and other specialty occupations. And The Center Square reports that it has obtained data from a Border Patrol agent revealing that from 2021 to 2024, the Border Patrol “apprehended 1,504 Iranian nationals who illegally entered the U.S.”, of whom the Biden administration released 729.

The Carter administration’s futile attempt in 1979 to deport illegally present Iranian students following Iran’s Islamic Revolution and the taking of American hostages there well illustrates the futility of relying on the byzantine procedures of the Immigration and Nationality Act (INA) to remove large numbers of aliens during times of conflict. At the time, the Washington Post’s John Goshko paraphrased Deputy Associate Attorney General Doris Meissner as “stress[ing]” that even “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.” That is no less true today.

The Alien Enemies Act, enacted in 1798, 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 citizens] … shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

The INA’s statutory procedures and rights accorded aliens do not apply to detention and removal under the AEA. As I have analyzed in detail, the Supreme Court has long upheld the AEA’s constitutionality, and the federal government utilized the Act during the War of 1812, World War I, and World War II. An Iranian-led or designed terrorist attack on U.S. soil would certainly qualify as a foreign government’s predatory incursion. While the Supreme Court has ruled that detainees subject to AEA removal “are entitled to notice and an opportunity to challenge their removal” in habeas corpus proceedings, proceedings in federal court involving Iranian nationals should be quite expedited — the only real question being whether a detained alien is or is not an Iranian national.

Does President Trump need to wait until after an Iranian terrorist attack or thwarted attack before he can trigger the AEA? Last May, I asked whether Iran-led assassinations, or attempted assassinations, on U.S. soil could trigger the AEA, concluding that “a strong argument can be made that such acts would”. As President Trump well knows, attempted assassinations have already occurred. The AEA’s time may well be now.