26.3.3 - Extraterrestrial Persons

Xenology: An Introduction to the Scientific Study of Extraterrestrial Life, Intelligence, and Civilization

First Edition

Robert A. Freitas Jr., Xenology: An Introduction to the Scientific Study of Extraterrestrial Life, Intelligence, and Civilization, First Edition, Xenology Research Institute, Sacramento, CA, 1979; http://www.xenology.info/Xeno.htm

In ancient and medieval times, as well as in primitive tribal states, the general tendency was always to view the foreigner as an outlaw, a criminal, or an enemy. The jus gentium (the equitable law of nations) originated by the Romans, and the unity of all humans promoted by Christianity ("You shall have but one law for alien and native alike." Leviticus xxiv. 22), helped to encourage an attitude of greater universality. But it was not until modern times that the legal alien acquired significant rights under law.

As far as basic rights for the extraterrestrial visitor are concerned, once he has been declared a legal person he has crossed the most fundamental juridic threshold.^404,4634 Our Constitution speaks of the rights of "people" and "persons," and the 14th Amendment extends this mantle of protection into state jurisdictions as well. Hence, any person physically present within the borders of our country will be protected by the basic Bill of Rights -- whether citizen, alien, or extraterrestrial.* This, however, does not tell the whole story, for there are many different kinds of legal persons under American law.

As far as the specifics of classification are concerned, there are a variety of ways judicially to view the ET. For example, he might possibly be considered a refugee. A refugee is a technically stateless person -- he is neither citizen (or national) nor subject of any foreign government on Earth.³⁵⁶⁴ One definition of the refugee goes as follows: "Any person uprooted from his home, who has crossed a frontier -- natural or artificial -- and looks for protection and sustenance to a government other than his former one."^709,3611 In a crash-landing Surprise Contact situation, this would seem to fit the extraterrestrial rather well. In many foreign countries, where the United Nations Convention relating to the Status of Stateless Persons is operative, refugees are guaranteed minimal legal rights commensurate with those held by foreign nationals. In the United States, however, even stateless persons are protected by the Bill of Rights.

Another way the ET may be viewed is as an alien, defined as "any person owing allegiance to a foreign government." The home planet of the extraterrestrial is certainly "foreign," in a very broad sense, so this classification probably makes more sense in the typical Direct or Surprise Contact scenario.

There are several kinds of aliens. An illegal alien is one who has entered the country illegally, without passing through the normal channels of admission (i.e., the U.S. Immigration and Naturalization Service, under the Department of Justice). The extraterrestrial has certainly made an illegal entry, so theoretically should be immediately subject to deportation proceedings.** According to the detailed provisions set forth in 8 U.S.C. §1182, numerous general classes of persons may be excluded from entering the country. These include aliens who are mentally retarded or insane, of poor "moral character", or afflicted with "psychopathic personality," or who are drug addicts. Other excludable classes are aliens afflicted with any dangerous contagious diseases, aliens who practice or advocate polygamy, aliens who are likely at any time to become public charges, aliens who are stowaways, aliens who are anarchists, aliens "over 16 years of age, physically capable of reading, who cannot read and understand some language or dialect," and aliens who at any time have encouraged or assisted any other alien to enter or try to enter the United States illegally. Clearly there are many problems with each of these restrictions from the extraterrestrial perspective, and a decision to "deport" the ET would create more problems than it would solve.

Another kind of alien is the alien enemy (a citizen of some hostile foreign power). If the President proclaims that the landing of the ET is a prelude to (or represents a serious threat of) invasion and war, he is authorized under 50 U.S.C. §21 to order a federal marshal to "apprehend, restrain, secure and remove" all alien enemies. This course of action seems unlikely in the extreme, since the creature should already be in government, custody and, in a practical sense, cannot be "removed." If war must be declared, there is another little-known class of aliens in international law known as friendly enemies. Says one jurist: "A belligerent State is free to exempt enemy nationals or certain classes of them from the treatment applied, to persons vested with enemy character."²¹⁰⁵

A way around the immigration problem is to classify the ET as an essential alien. 50 U.S.C. §403(h) provides that, with the Director of the CIA, the Attorney General, and the Commissioner of Immigration, any alien deemed "essential to the furtherance of the national intelligence mission" or vital to the interests of national security may be admitted for permanent residence (and ultimately naturalization and citizenship) without regard to admission procedures. This would seem quite possible in the case of the extraterrestrial, since a major foreign policy consideration will be the creature’s advanced technology. Any nation on Earth in possession of the visitor and his hardware would theoretically gain a significant psychological and military advantage.

The creature might also be classified simply as an alien amy -- a friendly alien. Although this normally requires proper immigration, there are several ways to get around this rule. Alien crewmen of foreign vessels, and aliens in transit, are exempt because their stay in this country is very temporary. Or, if the ET visitor is viewed as having entered the country for "business or pleasure," or as a "bona fide student, scholar, specialist, or leader in a field of specialized knowledge or skill," he is again exempt from the normal immigration proceedings by 8 U.S.C. §1101 as a visiting alien.

Another alternative to the "alien" approach is the possibility of granting ambassadorial status to the extraterrestrial. As a full diplomat, the ET would serve as the representative of his own government while on Earth. Diplomats have full immunity from prosecution in American courts. Or the ET may be seen only as a consul, a mere commercial agent for his government, entitling him to fewer immunities. Normally, however, there must be diplomatic reciprocity before a foreign envoy of any kind is afforded ambassadorial rank. Since we would know little or nothing of the extraterrestrial’s government, such unilateral diplomatic relations seem problematical.

Still, it is a fact that the President of the United States (and his designatees) are our sole representatives in dealing with foreign nations. The Constitutional power of the Chief. Executive to receive ambassadors and to recognize foreign governments is considered by many scholars to be virtually unlimited and exclusive. Presumably there would be no legal bar if the President chose to recognize the ET and his government, sight unseen; neither Congress nor the Judiciary could complain. Executive discretion is absolute in this matter, and this author would suggest that this technique is probably one of the better legal alternatives open to us.

Yet another option is available. The. Naturalization Clause of the U.S. Constitution expressly authorizes Congress to prescribe rules by which aliens may secure full citizenship. It is settled that Congressional authority is not limited to general rules governing the manner in which individuals are naturalized. There is nothing to prevent the grant of American citizenship to named persons by special act. For instance, in 1963 Congress passed 77 Stat. 5, which declared Sir Winston Churchill an "honorary citizen" of the United States. This procedure does not necessitate the swearing of the oath of citizenship normally required of all naturalized aliens, nor does it require the renunciation of "all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen."⁷¹³ Thus the ET granted honorary United States citizen status could retain his extraterrestrial nationality, a rather unique kind of "dual citizenship."

Additionally, the naturalization power extends to provisions for collective naturalization of whole populations of legal persons. Thus did Congress provide for the collective citizenship of the citizens of Hawaii when that territory was annexed. The power can also be exercised with respect to particular classes, races, or, presumably, any sentient species or other worlds over which jurisdiction can be secured. For example, the American Indians were not considered U.S. citizens until Congress provided by statute that native-born Indians should be citizens at birth. In similar fashion an entire species or society of extraterrestrials could be granted full, partial, or honorary citizenship in the United States.

As a last resort, Congress certainly has the legal authority to create a special juridical class to be called "extraterrestrial persons." It would then have to be decided exactly which rights and responsibilities the ETs should possess.

* In cases of "pressing public necessity", even citizens can be summarized incarcerated in camps". See Korematsu v. U.S. 323 U.S. 214 (1944).

** If the ET gives birth in the United States and is itself deemed a "person", its offspring could be deemed full U.S. citizens.