They're coming for the right to protest
Mahmoud Khalil's arrest is an attack on the Constitution.
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During his rambling and interminably long speech to Congress last week, Trump bragged that he had “stopped all government censorship and brought back free speech in America.”
Unfortunately, the arrest of Mahmoud Khalil, the Columbia University graduate student and pro-Palestinian activist, makes clear that devotion to free speech doesn’t include the right to protest if Trump doesn’t like it. Khalil’s green card has been revoked, and he’s currently in ICE custody.
The administration has tried to dress up Khalil’s arrest as motivated by national security concerns, but their statements about his alleged transgressions show it’s far more about suppressing speech.
Trump Press Secretary Karoline Leavitt defended the arrest by saying that Khalil had organized “group protests that not only disrupted college campus classes and harassed Jewish-American students and made them feel unsafe on their own college campus, but also distributed pro-Hamas propaganda, flyers with the logo of Hamas.” White House Counselor Alina Habba’s rationale was even more transparently bogus. She claimed on Fox that foreign students are not allowed to "hand out pamphlets in our country and try to infiltrate those terroristic thoughts ... and if you bring that into our country, you can get the hell out."
But far from being a threat to national security, Khalil’s actions are the exact sort of free speech that’s supposed to be protected.
The Supreme Court has repeatedly ruled that the right to assemble and protest is a cornerstone of the First Amendment. The Court has protected the hateful speech of the Westboro Baptist Church, holding they had a right to picket funerals of soldiers and display inflammatory signs like “Thank God for IEDs” and “Thank God for Dead Soldiers.” It struck down a Minnesota ordinance that prohibited speech that “arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” It ruled that burning the American flag is protected speech.
Khalil’s arrest is bad on its face, but it’s also wrapped up with the administration’s fake commitment to combatting antisemitism. Indeed, Trump has trafficked in antisemitic tropes for years. The motivation behind Khalil’s arrest isn’t genuine concern for Jewish students. It’s opposition to lawful protests on campuses and elsewhere — protests Trump fears could present a challenge to his authoritarian aspirations.
Protesting is not a crime
The administration isn’t even alleging that Khalil broke any laws. In fact, an unnamed White House official told The Free Press that “the allegation here is not that he was breaking the law” but instead that he was a “threat to the foreign policy and national security interests of the United States.”
It’s not surprising that the administration is talking to The Free Press, Bari Weiss’s website that is ostensibly dedicated to free speech but applauds police cracking down on protesters. And of course Weiss has made a career out of attacking Palestinians, starting with her time in college where she agitated to get professors fired for pro-Palestinian views.
Since there’s no way to make any criminal charges stick to Khalil, the administration has resorted to citing a law that allows deportation of “an alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States.” This allowed Marco Rubio to revoke Khalil’s green card so he could be deported.
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The use of this provision is exceedingly rare. According to the New York Times, it’s been invoked exactly once, by former President Bill Clinton in 1995, when he tried to deport a former Mexican government official, Mario Ruiz Massieu. Massieu sued, leading to a lower court decision declaring the provision unconstitutional because it was impossible for someone to know if their “mere presence here would or could cause adverse foreign policy consequences when our foreign policy is unpublished, ever-changing, and often highly confidential.” The judge who penned those words is none other than Maryanne Trump Barry, Donald Trump’s sister. The case was later overturned on unrelated grounds.
Earlier this week, Rubio said that people like Khalil “don’t have a right to be in the United States to begin with” and that they would never have been let in if they had explained they supported Hamas or intended to protest. Rubio is also playing tough guy over at Elon Musk’s Nazi bar, posting that the administration “will be revoking the visas and/or green cards of Hamas supporters in America so they can be deported.”
The problem here is that no one has explained what “potentially serious adverse foreign policy consequences” are at stake here. Yes, the United States supports Israel’s war against Hamas, but alleging that protests in the United States opposing the war somehow damage national security interests is absurd. Yet the administration is framing any opposition to Israel as synonymous with active support for Hamas.
In Khalil’s case, there’s no evidence that he has even been in contact with Hamas, much less provided material support to the organization. One of his lawyers, Amy Greer, explained that communicating with Hamas would be “completely opposite” to Khalil’s values.
Khalil’s arrest has highlighted the arbitrary and cruel nature of immigration detention. He was arrested in New York, then whisked away to New Jersey, then sent to an immigration facility in Louisiana, where he remains. The government sends people from all over the country to Louisiana, which houses over 6,000 immigrants in facilities where abuse of detainees is rampant. Flinging detainees all around the county is a common tactic by ICE, and it allows the government to charge detainees in jurisdictions far away from where they live.
Khalil sued the government in the Southern District of New York, saying his arrest violated the First Amendment and his right to due process under the Fifth Amendment. He asked to be released while the case was pending and that any proceedings be heard in New York. Despite the lawsuit, Khalil was not allowed to have private conversations with his lawyers for several days. It took a court ruling to get him two private calls with his attorneys. Judge Jesse M. Furman blocked Khalil’s deportation earlier this week, but declined to release him from the Louisiana facility where he’s being held.
Khalil’s attorneys have asked that he be returned to New York for immigration proceedings. Those proceedings are separate from his lawsuit and will be heard by an immigration judge. The notice requiring Khalil to appear for an initial immigration hearing in Louisiana on March 27 contains no details whatsoever and just repeats that Khalil’s presence in the country “would have potentially serious adverse foreign policy consequences.”
As Khalil holds a green card, making him a lawful permanent resident of the United States, he’s entitled to due process before he is deported. An immigration judge, not Marco Rubio or Donald Trump or anyone else, is the only one that can take Khalil’s green card away. Typically, green card holders are deported over criminal convictions or engaging in, or threatening to engage in, violent terrorist activities like kidnapping. The government still bears the burden of showing Khalil should be deported.
They’ve got nothing
Thus far the administration has provided nothing save for vague, unsupported assertions that Khalil distributed “pro-Hamas propaganda” fliers. Leavitt told reporters she had these terrifying fliers but couldn’t possibly show them to reporters because it would harm the “dignity” of the briefing room. After throwing out that fact-free assertion, Leavitt suddenly decided she couldn’t answer any additional questions because it’s an intelligence matter.
The administration refuses to provide Khalil with any information about which of his actions threatens US foreign policy interests. The White House is also trying to undermine Khalil’s ability to defend himself. Although Khalil is a New York resident and was arrested there, the administration says his case should be heard in New Jersey, where he was for just a few brief hours, or Louisiana, where he’s currently held. Trump’s personal antipathy to the Southern District of New York court is well-known and unsurprising, given that prosecutors pursued multiple criminal cases against him there.
The administration has other reasons for trying to get the case out of New York. As Lawfare explained, the Second Circuit Court of Appeals, which covers New York, is likely a more favorable venue for Khalil than the Fifth Circuit Court of Appeals, which covers Louisiana. The Fifth Circuit is the most conservative appellate court in the country, with 75 percent of its judges being appointed by Republican presidents, including six appointed by Trump. Conducting proceedings in Louisiana also, as Khalil’s lawyers noted, isolates him from his home and community of support.
Khalil is the first person the administration is trying to deport over pro-Palestinian protests, but he won’t be the last.
The Department of Homeland Security has demanded that Columbia University help it identify other “pro-Hamas” students. Add to this that Rubio is already saber-rattling about going after Hamas supporters and it’s clear that this administration, far from being a bastion of free speech, is actually waging a full-fledged war on political speech it doesn’t like. It flies in the face of the protections of the First Amendment, and is intended to terrify activists into remaining quiet. There’s honestly nothing more un-American than this.
That’s it for today
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This is just a small rock on top of a mountain of evidence that conservative America's commitment to free speech is a sham. The only question is whether or not they realize this or are still deluded about them being the party of freedom. It will be interesting to see if the America’s judiciary is able to stand for this constitutional freedom or if conservative judges are no more honourable than elected Republicans and officials of the executive.
When Trump uses the word “freedom” - two syllables, so within his steep limit - we hear echoes of Putin and all other autocrats: It means exactly the opposite. I’M free to decide who can speak aloud … and who needs to be silenced.