On Saturday, Immigration and Customs Enforcement (ICE) agents showed up to arrest Mahmoud Khalil, a Columbian graduate student who was accused of showing support for Hamas.
On one level, the State Department’s actions in this case might appear legitimate. Khalil isn’t a United States citizen; he’s a green-card holder, and immigrants have fewer legal protections than American citizens. In particular, the Immigration and Nationality Act allows the State Department to deny or revoke the visa of “any alien who. . . endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization.” The Supreme Court agrees; in Turner v. Williams (1904), it established that aliens could be deported if they hold dangerous views (for instance, advocating anarchism).
Khalil’s actions might rise to the level that the Immigration and Nationality Act and the Supreme Court had in mind. He’s a member (and accused leader, though he denies the charge) of Columbia University Apartheid Divest, a group that said of Hamas’ October 7 attack on Israeli civilians that “The Palestinian resistance is moving their struggle to a new phase of escalation and it is our duty to meet them there…It is our duty to fight for our freedom!” The Trump administration alleges that Khalil “led activities aligned to Hamas, a designated terrorist organization.”
If Khalil is guilty of everything he’s being accused of, then it’s reasonable to expect his deportation. I’m pretty close to a free speech absolutist, but the First Amendment doesn’t cover aliens who come to our country and then provide meaningful support (meaning actions and activities, not just words of praise) for terrorist organizations.
But to date, the government has provided no evidence to support its accusations against Khalil. This is an evolving story, and the facts on the ground may change. But as things currently stand, Khalil’s arrest should concern us for two reasons.
First, the Trump administration has a legal and moral obligation to respect Khalil’s right to due process. It is not enough for the administration to merely allege that he did something bad. History is full of dictators and authoritarians who accused their political opponents of the worst crimes, often without evidence. In a constitutional republic, the administration needs to actually provide evidence against Khalil.
This is true even in cases of national security. A White House official described Khalil as a “threat to the foreign policy and national security interests of the United States.” While national security concerns can sometimes be valid, they’re also often in tension with our national commitment to free speech.
It’s also important to remember that, when it comes to what is and is not a matter of national security, administrations are prone to lie. In United States v. Reynolds (1953), the widows of three air force pilots whose husbands had died during a training mission sued the United States government. They alleged that the government had been negligent in maintaining the jets, and that this negligence had gotten their husbands killed. The government fought back, not with facts, but with arguments about national security: if the details that the widows sought were exposed, the government alleged, it could give America’s enemies vital information about our military. The court agreed. But the government’s claim was based on a lie. As Glenn Greenwald reports in With Liberty and Justice for Some:
It was only in 2000, when the maintenance records were obtained via a Freedom of Information Act request filed by one of the pilots’ family members, that it was revealed that the government had blatantly lied to the court. The records in question contained no military secrets at all but were full of information showing that there had indeed been gross negligence in how the plane’s engines had been maintained by the air force.
Governments often invoke claims of “national security” as a fig leaf to convince citizens to look the other way while they expand their power. As citizens, we should be leery of such claims. They might be true; or they might be a convenient justification for the administration to remove a political enemy who has not violated any laws. In the case of Khalil, either could be the case.
The second problem with Khalil’s arrest is that it is providing a chilling effect on constitutionally protected speech. Khalil’s actions may in fact violate the Immigration and Nationality Act, but the administration is being very vague about this case. They have not, as of the time of this writing, presented any evidence or even accused him of any crime (as the White House official quoted above says, “The allegation here is not that he was breaking the law.”).
Trump said of Khalil’s case that “This is the first arrest of many to come.” He said that his administration “will not tolerate” students who have “engaged in pro-terrorist, anti-Semitic, anti-American activity.” But of course this is extremely vague. What exactly — and who — defines “anti-American activity?”
Trump’s language is especially concerning because he has historically taken a very expansive view of what constitutes a public enemy. In 2019, he tweeted that the press is “truly the enemy of the people.” Earlier this year, he sued CBS News for editing a “60 Minutes” interview with then-candidate Harris in a way that he alleged made her answers look better. When Trump says that he’ll target non-citizen students who engage in “anti-American activity,” does he mean students who aid and abet Hamas…or just students who support his political opponents?
Even in the Khalil case, Department of Homeland Security deputy director Troy Edgar conflates merely protesting with being a terrorist.
As such, other immigrants and permanent residents are wondering if they’ll be next in the crosshairs. The Foundation for Individual Rights and Expression (FIRE) reached out to the administration with several pointed questions designed to clarify the administration’s case against Khalil. As FIRE wrote, as of March 10, “the government has not made clear the factual or legal basis for Mr. Khalil’s arrest.” “This lack of clarity,” they warn, “is chilling protected expression, as other permanent residents cannot know whether their lawful speech could be deemed to ‘align to’ a terrorist organization and jeopardize their immigration status.”This administration has touted itself as a full-throated defender of free speech. Khalil’s arrest, and the vague and overbroad accusations used to justify it, is the latest warning sign that the administration might not be as committed to this foundational American value as they pretend to be.
