Trump Admin’s Justification for Arresting Palestinian Protester Is Total BS
The Trump administration is scrambling to find a legal justification for what legal experts and advocates say is a clear cut violation of arrested pro-Palestine protester Mahmoud Khalil’s First Amendment rights.
On Saturday, Department of Homeland Security agents followed Khalil — a graduate of Columbia University who helped organize pro-Gaza protests in the spring of last year — and his wife, into their apartment building near Columbia’s campus. Khalil and his wife who is eight months pregnant, were told that his student visa had been revoked, and that he would be deported. When his wife, a citizen who has not yet been publicly identified, pointed out that her husband was a lawful permanent resident, DHS authorities threatened to arrest her, as well, before whisking Khalil out of New York over 1,300 miles away to a detention facility in Louisiana.
Trump accused Khalil of being a “Radical Foreign Pro-Hamas” operative that poses a threat to national security. The Trump administration has provided no evidence supporting a link between Khalil and Hamas — which is a U.S.-designated a foreign terrorist group — or documentation of Khalil advocating violence. Khalil has not been charged with any crime. Trump and his administration are nevertheless openly bragging that the activist was being forcibly deported and separated from his pregnant wife because of his pro-Palestinian advocacy, and that more arrests will follow.
“I think we ought to get them all out of the country,” Trump said from the White House on Tuesday. “They’re troublemakers. They’re agitators. They don’t love our country.”
White House Press Secretary Karoline Leavitt told reporters earlier on Tuesday that under the Immigration and Nationality Act, the secretary of state has the right to revoke a green card or a visa for individuals who are adversarial to the foreign policy and national security interests of the United States of America.”
Leavitt claimed Khalil had abused the privilege of studying at an American university by “siding with terrorists, Hamas terrorists who have killed innocent men, women and children,” adding that he “is an individual who 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.”
Leavitt and the Trump administration have yet to produce evidence to back up their claims, but legal experts say that even if he did, the administration would have a hard time proving their argument in court.
The administration has “been pretty open about the fact that his constitutionally protected speech activities are the basis for him being detained,” Esha Bhandari, deputy director of the Speech, Privacy, and Technology Project at the ACLU, tells Rolling Stone. “It’s not about any unlawful activity, unlawful conduct, not based on any crime, nothing like that. They’ve been very clear, it’s his speech. It’s his constitutionally protected speech, and they’re using that and saying that that poses a threat to the foreign policy interests of the United States.”
Bhandari notes that in order to invoke the Immigration and Nationality Act as described by Leavitt, the secretary of state would be required to certify to Congress that the individual whose immigration status was revoked posed a foreign policy threat. “Congress has made it clear through amendments to the INA and through its legislative history that this provision is not meant to be used to exclude people on the basis of their speech,” she says.
The legal provision is typically wielded against high-level officials of entities known to be adversarial to the United States — not college students. “That’s not what the intention of Congress was in placing the foreign policy bar in the INA,” Bhandari says. “But most importantly, if the administration wants to pursue this theory that they can deport someone on these grounds, then they’re going to run up squarely against the First Amendment.”
Conor T. Fitzpatrick, Supervising Senior Attorney at the Foundation for Individual Rights and Expression (FIRE), feels similarly. “To be clear — to the extent that this administration is arresting and attempting to deport a lawful permanent resident for his opinions — that is unconstitutional and that violates the law,” he says. “In America, the last thing anyone should fear after they voice a controversial opinion, is a midnight knock at the door from federal officials.”
Fitzpatrick notes that even if Trump and his administration feel that Khalil’s opinions are anti-American, it doesn’t mean they’re not protected. “What we’ve seen so far suggests that Mr. Khalil’s primary crime was his pro-Palestinian advocacy,” he says. “But pro Palestinian advocacy, even pro-Hamas advocacy, is protected by the First Amendment unless it amounts to what’s called material support for terrorism. And the easiest way to think about that dichotomy is that the First Amendment protects your right to give moral support to terrorists. It does not protect your right to give military support to terrorists.”
Fitzpatrick continues: “The First Amendment and American free speech principles mean that no idea and no opinion is out of bounds. If you don’t like an opinion, you can change the channel. You can now offer a counter argument, or you can walk away. You cannot, however, throw the speaker in jail.”
On Tuesday, FIRE issued an open letter to the Trump administration demanding the government clarify “the factual or legal basis for Mr. Khalil’s arrest.”
The organization warned that “the administration must not use immigration enforcement to punish and filter out ideas disfavored by the government or deny due process to anyone facing arrest and detention.”
Maya Berry, Executive Director of the Arab American Institute (AAI), says that for decades “there has been a concerted desire to put advocacy for Palestinian human rights — to place Arab Americans, specifically Palestinians — outside of what is deemed acceptable in terms of political opinions and political perspectives.”
While the U.S. government has the power to employ ideological exclusion against foreigners seeking legal entry into the United States, there is no carve out in the Constitution that would place green card residents or other visa holders outside of the protections of the First Amendment. “We can deny someone entry because we don’t like a T-shirt they’re wearing, that’s ideological exclusion,” Berry says, but “it’s a lot different once you’re in the country.”
“This particular young man has an American citizen wife, and he’s a legal permanent resident, which means he’s on the trajectory of becoming an American citizen,” she adds. “And the part that is extraordinary, I would suggest, is if you actually look at what they’re doing here, nobody has yet shown anything to demonstrate that Mahmoud engaged in any unlawful activity.”
On Monday, U.S. District Court Judge Jesse Furman issued an order blocking the government from proceeding with Khalil’s deportation until a court had a chance to review the constitutional issues raised by his detention. Despite the threats against protesters, activists opposing Khalil’s detention continue to rally at Columbia University.
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