CSPAN - Washington Journal William Banks

All Episodes

Previous Next

March 18, 2025 19:06-19:37 - CSPAN

30:56

Washington Journal William Banks

Participants

Appearances

john mcardle

cspan 04:10

Clips

susan swain

cspan 00:10

Large

Audio Only |

Scroll

Show episode speakers

Speaker	Time	Text
unidentified		C-SPAN's new CEO Sam Feist and former co-CEO Susan Swain to talk about his quest to bring live gabble-to-gabble coverage of Congress to every American home.
		A lot of people are surprised that C-SPAN doesn't receive any government funding.
		They just assume it's a public service, it's a nonprofit, must get some government funding.
		Never thought about it?
		Not only never thought about it, I would have never been involved in it.
		I think it's a very bad idea to have a government institution fund media in any way.
susan swain ▲ ● ▼		From the very, very beginning, viewers who were part of this and understood that it was important to them to preserve and expand what we were doing.
unidentified		And I think that's so true today, even with the work that we're doing here with participants in the Call-In program, how active our social media channels are.
		For those people that get it, it matters.
		Hear stories of C-SPAN's earliest days.
		Learn about the people and work that went into bringing live coverage of the House of Representatives and eventually the Senate, White House, Supreme Court, and more to televisions across the country.
		They'll also reflect on the network's five decades of coverage, including many of its signature projects and C-SPAN's continued role in delivering democracy unfiltered in the years to come.
		Watch the C-SPAN story Wednesday night at 8 Eastern on C-SPAN or online at c-SPAN.org.
		C-SPAN, bringing you democracy unfiltered.
john mcardle ▲ ● ▼		Syracuse University Law Professor Bill Banks joins us now for a conversation on a centuries-old law that's getting renewed attention today.
john mcardle ▲ ● ▼		Bill Banks, it's called the Alien Enemies Act.
unidentified		It dates back to 1798.
john mcardle ▲ ● ▼		Why did Congress pass it at the end of the 18th century and why is it getting renewed attention in the 21st century?
unidentified		It's a very interesting period in our history, John, and the act was part of a sequence of four pieces of legislation that Congress enacted at the time.
		We were a young nation, of course, 1790s, and we were insecure, I think, as a nation.
		And we were fearful at the time, our members of Congress were, many Americans were, that there might be subversives or others infiltrating the United States that might wish to wage war on the United States from within.
		And it was feared mostly that that might be the French.
		We'd earlier, of course, had French in the country assisting, and then in war before the Revolutionary War.
		Many of those individuals stayed in the United States, of course, and it was feared that they might engage in some kind of sabotage or operation.
		So the Alien Enemy Act was enacted for that purpose.
		It was expressly a wartime measure.
		And the language of the act allows there, whenever there is an invasion, that's the key term, or what's called an incursion of hostiles attempting to tempting the territory of the United States, the president is authorized by the statute to remove those individuals from the United States.
		This is regardless of their citizenship or nationality, but they're part of an enemy force.
		So it was thought at this time that if the French wish to wage war on the United States, they may do so from within, and this statute would enable them to remove those individuals to remove the threat.
john mcardle ▲ ● ▼		So fast forward to 127 years, President Trump in using the Alien Enemies Act as the reasoning behind these deportations that we're talking about and using some of the words in this act to justify his use of it in 2025,
unidentified		saying just yesterday this is a time of war, talking about the illegal aliens that are here in the United States that he is trying to deport, saying it is an invasion.
		Yes.
		But it's a remarkable rhetorical turn for President Trump, if you will.
		He was using the invasion metaphor, the invasion descriptor, even during his presidential campaign.
		They had planned for this.
		And in his inaugural address, he made reference to the migrant invasion over and over again.
		And even on his first day in office on January the 20th, one of the 10 executive orders that he promulgated on that day makes direct reference to an incursion, a migrant invasion, and his plans to undertake the largest deportation operation in the United States history on the basis of his authority of the Alien Enemy Act.
john mcardle ▲ ● ▼		So jump back here to when this act was passed in 1798.
unidentified		Some definitions that are useful here.
john mcardle ▲ ● ▼		What is a predatory incursion?
unidentified		What is invasion?
		Who gets to define those terms as the criteria for invoking this act, be it in 1798 or 2025?
		I think it was widely understood at the time that an invasion was an act of war by an enemy of the United States, and that a predatory incursion was simply a lesser form of attack on the United States, if not a full-formed assault, than a lesser attack, you know, an incursion by sea or by land with perhaps a smaller group.
		But both of them are wartime terms.
		They were phrases that were well understood in the 1790s and around the Western world.
		So it's expressly, I think, framed as a wartime measure.
john mcardle ▲ ● ▼		What did President John Adams at the time think of this legislation?
john mcardle ▲ ● ▼		Did he say it was needed?
unidentified		Not so much.
		This was more an initiative of the Congress at the time than of the administration.
		It's not coincidental that one of the other four pieces, other three pieces of legislation enacted at the same time is called the Alien and Sedition Acts.
		And remarkably, that law forbade citizens from criticizing their government.
		It was a direct affront to the First Amendment to the Constitution, which had only recently been ratified.
		And it was soon repealed after President Jefferson said that he wouldn't enforce it because it just attacked the ability of our citizens to freely express themselves.
		So the most cautious and most reactionary force in our government at that time was the Congress of the United States, not the President.
john mcardle ▲ ● ▼		Here's some of the wording of that legislation dating back to 1798.
john mcardle ▲ ● ▼		Whenever there shall be declared a war or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the U.S., all subjects of the hostile nation or government can be apprehended, restrained, and secured and removed as alien enemies.
unidentified		That's the act we're talking about this morning in this segment of the Washington Journal.
unidentified		William Banks is our guest, Syracuse University Law Professor.
john mcardle ▲ ● ▼		He's also taking your phone calls, your questions about this topic.
john mcardle ▲ ● ▼		Democrats, it's 202-748-8000.
unidentified		Republicans, 202-748-8001.
unidentified		Independents, 202-748-8002.
john mcardle ▲ ● ▼		Mr. Banks, as folks are calling in, how often has this act been invoked in U.S. history before now?
unidentified		Very seldom, and that's perhaps one of the most important questions.
		It's really an anachronism.
		It hasn't been utilized by the United States since World War II.
		That tells you something.
		The only time the act has been used throughout our history is in periods of grave national crisis, World War I, World War II, and the War of 1812.
		No other time, not even during the Civil War.
		And so in World War II, it's part of a very embarrassing and sad history of the United States that we used it to round up some number of German, Italian, and Japanese citizens who were in the United States after the outbreak of World War II.
		That, of course, alongside a more infamous program of interning Japanese Americans, citizens, most of them of the United States in wartime relocation camps through most of World War II.
		It hasn't been touched since World War II.
		And of course, we're not at war now.
		And we're in no way being faced by an invasion or war by migrants.
john mcardle ▲ ● ▼		Considering that, as you described, it infamous history during World War II, why is it still on the books?
unidentified		Well, we could ask that question and probably fail to answer it about hundreds, if not thousands, of laws on the books in the United States, John.
		Congress is pretty good at getting laws passed sometimes, but they don't do house cleaning very often.
		There have been very few occasions when we've repealed laws that are no longer relevant or necessary.
		Arguably, it could become relevant again if we're invaded, or excuse me, if we're at war with some sovereign nation.
		If we're at war with Mexico, for example, then it's appropriate to use the Alien Enemies Act to remove Mexicans.
		That's never going to happen, of course, because Mexico is an ally and a friend.
		Canada, same thing.
		It's never going to happen.
		But conceivably, there could be a war between the United States and another sovereign nation, and then that act would provide the authority to remove its nationals, perhaps send them back to where they came from.
john mcardle ▲ ● ▼		You said Mexican Americans, if we were at war with Mexico, can you use this act to remove American citizens?
unidentified		American citizens?
		No.
		This would be of a foreign nation.
john mcardle ▲ ● ▼		Just wanted to make that clear.
john mcardle ▲ ● ▼		And then the other question I had was: how often has this law, again, considering what was happening during World War II and the infamous history, you say, how often has it been challenged in federal courts?
unidentified		Very few times.
		You know, their challenge is going ongoing at this moment, as we both know.
		But most of the few cases that have been brought in the history of the United States have failed because those individuals who were from one of the nations with which we were at war in World War I or II or during the British, the War of 1812, they were within the four corners of the authority for removal.
		So the attacks were attacked by those represented by lawyers at the time, but they failed.
john mcardle ▲ ● ▼		The numbers to call in: 202-748-8,000 for Democrats.
john mcardle ▲ ● ▼		Republicans, 202-748-8001.
unidentified		Independents, 202-748-8002.
john mcardle ▲ ● ▼		Mr. Banks, Professor Banks, several callers for you already.
john mcardle ▲ ● ▼		This is Steve in California, Republican.
unidentified		Good morning.
		Good morning, John.
		Good morning, John.
		Professor, they had the Hub Stubbs case in front of the Supreme Court where they actually used that to restrict the freedom of speech.
		You know, you can't yell fire in a crowded theater.
		Now, that was the case to silence critics from Wilson about his war.
		I believe Eugene Stubbs, who was the only person who ran for president that was in jail, and I forget the Jewish woman that they actually did deport, which was an American citizen, and deported her to Russia.
		And there were several others.
		So, no, this sedition act was used to actually deport American citizens at that time.
		All right, that's it.
		Thank you, John.
john mcardle ▲ ● ▼		Mr. Banks.
unidentified		Yeah, those laws, that's a good question or a good comment.
		The laws have been revised many times since that first quatrate of laws in 1798.
		So when we refer to seditious conspiracy, for example, today, or sedition, we're referring to laws that exist, but they've been enacted many years after those original laws in the 1790s.
		Indeed, today it's possible to engage in seditious conspiracy and to be penalized, even put in jail, prison for a lengthy period of time as a result of sedition.
		Some of those periods in our history are those that are not so favorably, don't show the United States in such a favorable light.
		Criticisms of Wilson, criticisms of involvement in the war, criticisms based of those based on religion or ethnicity or race, but they happen from time to time.
john mcardle ▲ ● ▼		Boston, this is Paul Independent.
		Good morning.
		You're on with Professor Banks.
unidentified		Good morning.
		How are you doing?
		I'm calling from Boston.
		My question was about the deportees that were, I guess, verbally and then instructed by a judge to return back to the United States when they were on the plane.
		My question was, is the ACL, are they just, do they want information on four specific people?
		Is that what the controversy is about?
		Or is it the entire all the people that ICE have been sending back there?
		Yeah, that's a good question.
		And it's, of course, an ongoing situation and a fast-moving controversy about which we, the people, know relatively little.
		The problem for those who are representing the detainees who were removed by air the other day over the weekend is that they, the lawyers, don't know very much.
		They have the names, I think, of a handful, four or five individuals, but there are reported to be well over 100 that were removed on those air flights over the weekend.
		And they're thought to be Venezuelan nationals who allegedly are members of a particular criminal gang.
		And it's the members of the criminal gang who the administration wished to deport.
		They did so under the authority of this law.
		That's the claim of the government.
		And that's the lawsuit that's going on now, which raises a couple of important questions.
		One is, does the law apply?
		That is, does the Alien Enemy Act apply to a criminal gang from Venezuela?
		My view would be that it does not because we're not at war with Venezuela.
		And second, do these individuals, whoever they are and whatever their affiliation, do they have procedural rights in the courts of the United States before being removed by the United States?
		So they're two separate stages.
		And at this point, the argument is about procedure rather than about the merits of the law.
		Presumably, we'll get to both.
		And it's a precarious moment in the United States because the language from the Trump administration, from Secretary Rubio and from the president himself, suggests that the courts don't have the authority to intervene here.
		That's not true.
		Courts always have the final say on what the law is in the United States.
		That's been true, at least since the famous decision of Marbury and Madison in 1803.
		And presidents don't get the final word, nor do secretaries of state.
john mcardle ▲ ● ▼		William is a Republican in the Keystone State.
		Good morning.
		You're on with Professor Banks.
unidentified		Yes.
		I have two questions.
		One, do you think that this law shouldn't be used?
		And the second one, did you think the law that Joe Biden used against the January 6thers for 150-year-old law that they used against them, is that okay to use?
		Or is it just one for one party and one for the other party?
john mcardle ▲ ● ▼		That's true.
unidentified		No, it should be one law for everyone.
		And I think the problem with using the Alien Enemy Act here is that we're not at war with Venezuela.
		If we were at war with some country, then it would be appropriate to use the act to remove citizens of that country.
		There are other ways, of course, to remove individuals from the United States and other ways to enforce the criminal laws.
		If the gang from Venezuela is an organized criminal gang, that's a very serious problem.
		And they should be investigated, apprehended, tried, convicted, and then imprisoned if they've violated the laws of the United States.
		Alternately, they could be removed from the United States through the immigration laws.
		President Biden, like President Trump and other presidents before him, have considerable discretion under the immigration laws to follow through with deportation proceedings, otherwise known as removals, following the procedures.
		And you're correct to imply in your question that those procedures have changed quite a lot from administration to administration, including in the Biden administration.
		I think the fault for the weakness in our immigration system is not so much the president, whether it's Trump, Biden, or anyone else, but it's the failure of Congress to have modernized our immigration system in about almost 30 years.
		There hasn't been a serious effort at immigration reform since the mid-1990s.
john mcardle ▲ ● ▼		And then to his questions about the use of the seditious conspiracy convictions against the oath keepers and the proud boys that were found guilty in the January 6th cases.
unidentified		Well, those laws, it's true, they go back as far as your questioner suggests, but they've also been revised many times since that, even in the 2000s and recent years.
		And arguably their language is broad enough to fit a lot of different circumstances.
		And I think it's a question of fact whether the activities inside the Capitol, for example, on January 6th amounted to sedition.
		And it wouldn't be up to judges, then it would be up to juries to decide whether individuals engaged in conduct that met the definitions in the law.
		There have been many periods in our history when controversial, seditious conspiracy charges have been brought and proven.
		Other occasions when they've been brought but failed.
		And I think that's a historic tension in our society between national security and freedom of expression.
		That's the tension that we all live with every day, removing us for a moment from the immediate controversies in front of us.
		It's just part of our system.
john mcardle ▲ ● ▼		Bounce back to 1798 for me.
		You talked about John Adams and his views on these laws as they're coming out of Congress.
		How much debate were there at the time within Congress?
		Was this tough to pass at the time, the Alien and Enemies Act, but also the Alien and Sedition Act as well?
unidentified		They were not really heavily debated at the time.
		It was a rush to judgment, I would say, on the part of Congress.
		It wasn't Congress's finest hour by any stretch.
		And most of the debate and commentary that occurred occurred after the fact.
		So the Alien and Sedition Act, as I said, was repealed not long after in the Jefferson administration, so it didn't last very long at all.
		Jefferson was heavily critical of that law.
		And when individuals were prosecuted for violating it, and there were some in the very early months and years of the following enactment of the law, Jefferson said, I won't enforce it.
		And he persuaded Congress to go back and redo its work and repeal the worst of those.
		We're not now talking about the Alien Enemy Act anymore.
		We're talking about something else.
john mcardle ▲ ● ▼		Did Jefferson have anything to say about the Alien Enemies Act or Madison or one of those other presidents not long after this happened?
unidentified		It was really in the background at that time and very little mention at all.
john mcardle ▲ ● ▼		Will, Atlanta, Independent, good morning.
john mcardle ▲ ● ▼		You're next.
unidentified		Thank you, sir.
		Appreciate you taking my call.
		I don't think it can be overly emphasized just exactly who it was that founded the United States of America in 1776 and why they did and what they thought was their justification.
		Patrick Henry said, you know, give me a little, give me death, but he also said it cannot be emphasized too strongly or too often that this great nation was founded not by religionists, but by Christians, not on religions, but on the gospel of Jesus Christ, Esclamation Mark.
		For this very reason, peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here.
		Anybody can look it up.
		But some of those other faiths include the proclamation that all Gentiles must be exterminated and enslaved and killed with impunity, quote unquote, liturgically.
		I became aware of this trying to figure out.
		I went in the Army back in 1968.
john mcardle ▲ ● ▼		So, Will, bring me to your question for Professor Banks.
unidentified		Well, Thomas Jefferson has just recently been mentioned, and he identified the real Antichrist as who it was we expelled from the United States.
unidentified		And anybody who thinks that the real Antichrist stopped existing after we expelled them from the United States could go down to the brothels of Latin America and see precisely where their demonic ruling policy leave rules and their marching orders anybody can get from the Library of Congress.
john mcardle ▲ ● ▼		All right, that's Will in Atlanta.
		Not sure where he was going.
		Professor Banks, anything you wanted to follow up on?
unidentified		I think I'll pass on that one.
unidentified		Thank you.
john mcardle ▲ ● ▼		Illinois, this is Line for Democrats.
john mcardle ▲ ● ▼		Guido, good morning.
unidentified		Good morning.
		Hi, John.
		Good morning, Professor Banks.
		I can't really follow up demonic brothels in Latin America, but regarding the term predatory incursion, you claim that it's widely understood.
		As an academic, could I challenge that and say that perhaps it would be up to a court in the day to assume, say, that guerrillas or non-uniformed forces not during an act of war could actually be considered a predatory incursion.
		And therefore, could we consider these gangs a predatory incursion?
		And then the second question, as a human, as a patriot, as we talk about procedure and we watch this regime just push through all the guardrails of American society jurisprudence, are we just whistling past the graveyard?
		Those are great questions.
		I think on your first question about the meaning of predatory incursion, you make a very strong point that it's a term that could be understood at the time and its meaning could evolve over time.
		And as I said in my opening remarks, it was thought to mean something less than an invasion, but still a very forceful measure by an enemy.
		I think the biggest problem with trying to apply something like predatory incursion to a contemporary gang is that they're not affiliated with a state.
		The Venezuelan gang is not Venezuela.
		The Venezuelan gang is not the government of Venezuela.
		The cartels in Mexico are not the government of Mexico or the army of Mexico.
		They're in it for profit.
		They're in it to make money, not in it to take territory or overthrow the government of the United States.
		So the problem with applying predatory incursion to these contemporary circumstances, I think, is that.
john mcardle ▲ ● ▼		So what would you say to Bill in Mobile, Alabama?
		He writes this on X, or this might have actually been a text message sent from Bill.
		The liberal media is touting the position that the president can't use the 1790s law to remove drug gangsters because it can only be invoked after a declaration of war.
		He writes, as we all know, President Nixon declared a war on drugs.
unidentified		It has not been rescinded.
		Therefore, since war was declared, Trump is legally permitted to proceed without any other legal requirement.
		That's Bill and Mobile.
		You know, it's a very unfortunate contemporary trend that we've had in the United States to use the war on something, you know, a metaphor for any number of things.
		I do certainly remember the war on drugs.
		I remember Nancy Reagan's war on literacy, illiteracy.
		It's a powerful metaphor, but legally it has no significance, none at all.
		There's, well, 250 years of history understanding what war means in the United States.
		As many of your listeners and viewers know, the United States has only been in a declared war eight times.
		We haven't been in a declared war since World War II, last declared against Romania in 1942.
		But yet we've hardly been at peace in all the years since World War II.
		So the meaning of war, of course, has changed over time, and it's been shaped by our conduct.
		And our ability to wage defensive war against terrorists is now well understood.
		9-11 was a terrorist attack, the worst attack in the history of the United States undertaken by al-Qaeda and its supporters.
		We could go to war with al-Qaeda even though it wasn't a state, because they had the means to wage war against us in a devastating terrorist attack.
		So if cartels or armed gangs from Venezuela or somewhere else suddenly turned capable of inflicting major damage, kinetic damage on the United States, attacking a city, attacking a port, attacking a concert hall or a sports stadium, we'd be in a very different position.
		Why is Congress so bipartisanly opposed to declaring war?
john mcardle ▲ ● ▼		Why is it so hard to get Congress to declare war?
unidentified		You know, here's an answer that members of Congress won't like.
		I think it's because Congressmen and women haven't done their duty.
		They have been largely passive, content to allow the executive branch to take the lead.
		So President George W. Bush, of course, responded at the very first moment to the attacks of 9-11.
		Other presidents before and after George W. Bush have responded to terrorist attacks often very aggressively and with speed and deliberation.
		And they've done so on the basis of their constitutional power to defend the Constitution of the United States.
		And that's good and noble, but it would be better if Congress could step up to the plate and do its job.
		Many times they've failed to do so.
john mcardle ▲ ● ▼		If Congress was more inclined to exercise that power of declaring war, do you think that would result in the United States being involved in more or less military actions around the world?
unidentified		The problem with that rubric or the way of framing things, John, is that the world in which we live here in 2025 is so different from the war of the time of the Framers that today talking about declarations of war and the like is almost quaint.
		No nations declare war anymore.
		We protect our national security interests, and if necessary, we use force if we're attacked.
		Most nations don't reach out offensively.
		Arguably, the United States hasn't reached out offensively with the use of force since before the World War.
		So I think it's a system that needs some attention and some repair.
		And Congress and the President have gotten together many times to come up with framework legislation that would provide guidance for both the legislature and the executive branch in deciding the occasions in which force ought to be used.
john mcardle ▲ ● ▼		This is Josh waiting in Silver Spring, Maryland, line for Republicans.
		You're on with Syracuse.
		Professor Banks.
unidentified		Thank you so much, Professor.
		Good morning.
		Thank you for your comments.
		You know, you talked a little bit about the war on terror.
		I wanted to delve a little more deeply into that because I'm just trying to understand why that war that was declared by George W. Bush, and which is seemingly ongoing, even though it technically perhaps could have been considered ended in maybe August 2021, but obviously never officially ended.
		You know, these cartels, these gangs have caused more damage, more deaths in the United States than 9-11.
		And I think they can be and are declared by the current president as terrorist groups.
		And so I'm just trying to understand why the war on terror can't be used as a justification for the actions or the use of that 1798 law.
		I think that's a good question.

▲