Unlawful and Undocumented

When the issue of illegal immigrants bubbled up in the national news earlier this year, I reflected on the meaning of “illegal immigrant.” The term “undocumented alien” is more precise. The “illegal” part refers to the fact that the host government has not approved the citizen of another country to enter, live, or work in the host country, rather than to any particularly criminal action. It is similar to the failure to obtain a driver’s license, a marriage license, or a peddler’s license, which is not really a big deal until you do something that annoys someone else, and then not having the license becomes an excuse to slap you with extra penalties, or to charge you with a crime despite not having committed a crime against another person.

The condition of being “undocumented” is, of course, a lifelong dream for most libertarians and many others, so it is kind of ironic how some of them complain about people who are in our country “illegally.” If a law were passed requiring all native-born persons residing within our borders to submit applications for citizenship, wouldn’t your refusal make you an undocumented native? If you refused, you would be residing in our country illegally, regardless of where you were born. Surely, this was the situation encountered by many residents of the American colonies at the time the US federal government was constituted. For that matter, it has probably been true for many people throughout history, every time existing political units were incorporated into a larger one, or every time nonpolitical groups of people have been aggregated into previously nonexistent political entities.

It is not immediately evident why a person should be morally or ethically obligated to submit to such arbitrary political controls, so the epithets about “illegality” are arguably spurious. There are practical reasons why a political authority would want to control the types or the numbers of people who live and work under its sovereignty, but those reasons for implementing a law are not necessarily reasons for following it. The bottom line is that if the political unit exercises genuine authority they will back it up with overwhelming force or tangible rewards, in order to provide practical incentives for obedience.

A similar problem is encountered with the term “unlawful alien enemy combatant.” The term “alien” distinguishes between an assumption of certain rights for citizens and an assumption of a lack of rights for non-citizens, but this distinction is not central to understanding the broader term. The designation of “enemy” is redundant here, because I am not concerned with the disposition of friendly combatants. Sometimes “unlawful” is replaced with “illegal,” an ambiguous distinction that pertains to questions of state sovereignty and individual legal status: Basically, an illegal combatant is someone under the jurisdiction of a sovereign state, who has violated its criminal law and is to be charged and tried under it (that is, a criminal). An unlawful combatant is a person who does not fall under the jurisdiction of any particular sovereignty and is not charged with violating any particular criminal law. Being a “combatant” simply means being belligerent toward an established authority and presumably willing to combat it; particular threats to life or property are not required to earn this designation, but the perception of threat to the governing authority is sufficient. (See the discussion at Wikipedia.)

Here, I am concerned with the understanding of the generic “unlawful combatant.” Traditionally, the unlawful combatant (UC) has been a spy or a mercenary, but now the UC may also be labeled a terrorist. In all cases, the purpose has been to identify an individual prior to their commission of a crime or act of violence. This is important to understand: Not only has the individual in question not necessarily committed a crime, but even if they had, the authorities would not seek to charge them. If so, the individual would be afforded certain rights and protections, and the state would have certain obligations to fulfill. One immediate implication of this is that the UC designation is only relevant in a country having the functional rule of law and a fair and independent judiciary, because its explicit purpose is to enable the bypassing of the legal system by law enforcement or military authorities.

The other important feature of the unlawful combatant designation is that the person is defined as not explicitly acting as an agent of a state. If the individual were explicitly acting in the interests of a state, he would be afforded certain protections in the context of international treaties, especially those pertaining to war. By expressing belligerence to a state but not acting as an agent of another state, an individual essentially forfeits any claims to state protection. The individual without state protection is considered a non-person without any identity, and thus no state owes any particular obligations to him. The state, furthermore, is not obligated to recognize any “God-given” or inalienable rights.

The designation of “unlawful combatant” is thus shown to be primarily a vehicle for preemptively removing a perceived threat to the integrity of a state, by denying any obligations of the state to the individuals deemed responsible for the threat. The state has a superior claim of moral authority which supersedes claims by any individual or group of individuals, and furthermore the state has the sole authority to assign or revoke rights for individuals and groups under its physical control. This authority does not derive from a theory of sovereignty, but solely from the circumstances of physical control, and hence is not restricted by geographical, political, or legal boundaries.

In summary, the designations of the undocumented alien and the unlawful combatant are exclusively used to enable the state to exercise control over individuals without any respect for law, morality, or professional ethics.

For any “Christian conservatives” who take the Bible seriously, unjust action against foreigners is explicitly forbidden:

Thus saith the LORD; Execute ye judgment and righteousness, and deliver the spoiled out of the hand of the oppressor: and do no wrong, do no violence to the stranger, the fatherless, nor the widow, neither shed innocent blood in this place.
Jer 22:3

Thus speaketh the LORD of hosts, saying, Execute true judgment, and shew mercy and compassions every man to his brother: And oppress not the widow, nor the fatherless, the stranger, nor the poor; and let none of you imagine evil against his brother in your heart.
Zec 7:9-10

Moreover, God promises that it will be severely punished:

The people of the land have used oppression, and exercised robbery, and have vexed the poor and needy: yea, they have oppressed the stranger wrongfully. And I sought for a man among them, that should make up the hedge, and stand in the gap before me for the land, that I should not destroy it: but I found none. Therefore have I poured out mine indignation upon them; I have consumed them with the fire of my wrath: their own way have I recompensed upon their heads, saith the Lord GOD.
Eze 22:29-31

For US citizens, such a philosophy of state supremacy (etatism) is contrary to the principles of the US Declaration of Independence:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.

That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.

Prudence indeed, will dictate, that Governments long established, should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.

Where does the “conservative” government of this “Christian nation” stand? Squarely within a tradition of collectivism, moral relativism, and totalitarianism.

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