The Abduction of Mahmoud Khalil

The Abduction of Mahmoud Khalil

If the secretary of state can simply declare a legal permanent resident deportable based on their constitutionally protected activities, the First Amendment no longer applies to noncitizens.

Though the arrest of Mahmoud Khalil has been widely covered, it still does not cease to shock. A legal permanent resident of the United States, Khalil was returning to his Columbia University apartment building with his pregnant wife (a U.S. citizen) when he was approached by Immigration and Customs Enforcement agents looking to take him into custody in connection with his role as a prominent student protester on campus. The whole affair had a slapdash quality to it: the ICE agents claimed to be revoking his student visa, only to be told he had a green card, which prompted confusion. The lead agent, who had been honored by Donald Trump during his first presidency, then spoke to Khalil’s lawyer on the phone, but promptly hung up when the lawyer requested a copy of the warrant the agent claimed to have in his possession.

After Khalil was arrested and whisked away, his lawyer filed a habeas petition to have him released. This makes perfect sense; in a deportation action, qualified noncitizens are usually not detained unless there is a fear that they will abscond or otherwise pose a danger to the community. In this instance, there is neither, as Khalil’s wife is here, and he has not been charged with any crimes. In what looks like retaliation for filing the habeas action, the immigration authorities moved Khalil to a detention facility in Louisiana. This move also functions as an attempt to render him subject to the judges of the Western District of Louisiana, a far more conservative region of the equally conservative United States Court of Appeals for the Fifth Circuit.

The villainous nature of this move—taking Khalil over 1,000 miles away from his pregnant wife—could not be more obvious. The official White House X account post announcing Trump’s order to put Khalil into deportation proceedings began with a taunting “Shalom, Mahmoud!” And as the documents supporting his habeas petition cited, a recent case from the Second Circuit found it unconstitutional to impose punitive immigration-related consequences in retaliation for a noncitizen exercising their rights to protected speech and advocacy.

The Mahmoud Khalil detention is a new iteration of an old practice: using a Palestinian to shatter constitutional protections and increase government power. In this instance, the target is the free speech rights of all noncitizens. But we should be forewarned that if the government gets its way here, the speech rights of citizens will be next up in its crosshairs.

For decades, Palestinians have been subject to government overreach at the expense of constitutional rights more broadly. The examples from recent history are legion. In the wake of the Black September group’s attack on the Israeli Olympic team compound during the 1972 Munich Summer Olympics, the Nixon administration established the Cabinet Committee to Combat Terrorism (CCCT), which charged the FBI, the Immigration and Naturalization Service (INS, the precursor to ICE), and the State Department with monitoring and surveilling Arab noncitizens and American citizens of Arab origin alike. The CCCT’s most invasive and high-profile program, Operation Boulder, involved heightened visa reviews for all Arab noncitizens. Despite the program processing some 150,000 people, which resulted in a few hundred exclusions and deportations, it was discontinued in 1975 because in the government’s view it did not produce results. That is another way of stating that the Arab population in this country, including Palestinians, was not the terrorist threat that the government believed them to be. One unintended effect of the increased surveillance was to make the country’s hitherto politically withdrawn Arab community much more mobilized to meet the threat of government repression.

In the 1980s the Reagan administration once again targeted Palestinian immigrants for deportation. In an action overseen by then Assistant Attorney General John Bolton, the government tried to remove Fouad Rafeedie, a legal permanent resident of Palestinian origin from Ohio, on the grounds of his alleged membership in the Popular Front for the Liberation of Palestine (PFLP), designated a terrorist group by the government, after he attended a conference in Syria. He had received authorization to travel in and out of the United States and completed his trip within two weeks. When he returned, he and his companions were stopped and questioned at the airport about their trip. Based on confidential information, the government tried to put Rafeedie in summary exclusion proceedings. Exclusion differs from deportation in that the government may turn a noncitizen away at the border without a hearing or any right of appeal. All the federal courts that reviewed his case held that Rafeedie had a right to due process; as a legal permanent resident, he could not be summarily excluded. The government eventually dropped its attempts to remove Rafeedie, but the point was clear: the government was not afraid to use Palestinians to attempt to expand its powers, even in the face of obvious constitutional limits.

In 1987, INS agents arrested seven Palestinian immigrants and one Kenyan citizen (the L.A. 8) on charges they were members of the PFLP. The government suspected them based on their activities in Southern California, which entailed distributing literature and holding events around the Palestinian cause. Although they were targeted for their political views, some were charged with minor infractions, like overstaying a student visa or working without authorization. As the PFLP was a Marxist-Leninist group, they were accused of being removable on the basis of membership in a communist organization under the McCarran-Walter Act, which was ultimately declared unconstitutional and later repealed by Congress. The L.A. 8 prosecution was a twenty-year saga of deportation charges dismissed and new charges being filed as immigration law changed. Their case was finally dismissed in 2007, after the government failed to turn over the actual evidence demonstrating that they were in fact members of the PFLP.

In an article I wrote with Anthony O’Rourke at the end of 2023 in Dissent, we criticized the call by the Anti-Defamation League (ADL) to have the FBI investigate students protesting the Israeli military’s genocidal campaign for purportedly providing material support to Hamas, a designated Foreign Terrorist Organization (FTO). There never appeared to be a link between the protestors, who represented all walks of American life, and any FTO, let alone Hamas. The FBI, with its massive investigatory powers, surely knew that. The crime of providing material support to an FTO in the form of speech requires working in coordination with, or at the direction of, the FTO itself—something the protestors were plainly not doing. Independent advocacy for an FTO remains protected speech, even for a noncitizen. But facts and logic never win out when the issue is standing up for Palestinian rights in the United States.

The passage of the material support law itself in 1996 relied on what I believed to be a false premise—that foreign terrorist groups were raising money for violent activities under the guise of charitable organizations. There has never been any evidence produced that this was true. But that did not stop Congress from passing the law, for which the ADL and several other pro-Israeli groups lobbied.

In the post-9/11 world, the paranoid belief that terrorists lurked among us, bamboozling well-meaning Americans and spiriting away their money to fund violence, produced the conviction of five Palestinian Americans in 2008 on charges of materially supporting Hamas through the Holy Land Foundation for Relief and Development, then the country’s largest Muslim charity. The government never disputed that the money the Holy Land Five raised went to people in need and that they had no links to any violent activity—only that the aid enhanced Hamas’s legitimacy in the eyes of Palestinians in the West Bank and Gaza Strip. This was a far cry from raising money for violence through charity, but it did not derail the prosecution from producing sentences of up to sixty-five years in federal prison for the defendants’ nonviolent humanitarian activities. The outcome severely chilled charitable donations to Palestinians in need, as potential donors in the United States feared being on the wrong side of a terrorism investigation.

I know to be on my guard when discussing Palestine and its relationship to American law. Nonfactual and sensationalized claims are the order of the day. That’s why I had a nagging feeling as I listened to both Joe Biden and Trump repeatedly condemn the campus protests in 2023 and 2024. As a candidate, Trump threatened to deport those involved should he be elected. He made good on his promise with two executive orders that demand a crackdown on pro-Palestine protestors on campus, under the guise of combating antisemitism. The first order, from January 20, calls for enhanced vetting of what it deems the “foreign terrorist threat,” based on the assumption that such individuals are either already in the United States or actively trying to come here, and deporting them or excluding them as the case may be. The second order, issued nine days after, calls for action against those who are engaged in antisemitism, specifically targeting campus protesters and directly linking them to the October 7 attacks. It urges a number of measures, including “encouraging” the attorney general to pursue criminal prosecutions of those who would conspire to deny Jewish students their civil and constitutional rights.

Khalil’s case, coming on the heels of these executive orders, represents an attempted legal innovation made permissible by his Palestinian identity. Despite some fundamentally flimsy accusations of his “Hamas-aligned” activity, or possession of Hamas-supporting flyers—for which it has produced no evidence—the government finally admitted what it considers to be the deportability grounds. It was not relying on the wide and expansive concept of material support to Hamas, because it was clear that he had provided none. Instead, the government is arguing that he is deportable as 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,” a statutory provision that was declared unconstitutional in the one judicial opinion to have considered the law. Although the case was later dismissed on other grounds, the court noted that it would be impossible to know how to conform their speech beforehand to the unknown and shifting nature of U.S. foreign policy. No material support, no criminal grounds—just the determination of the secretary of state that a stateless Palestinian’s presence has adverse foreign policy consequences, based solely on First Amendment protected speech and association. At this point, we might pause here to ask a question on the substantive nature of what these “adverse foreign policy consequences” might be. During the over seventeen months since October 7, has there been any daylight between the United States and Israel on the fundamental issue of denying Palestinians any say in their future? We have witnessed a truly unprecedented level of military, diplomatic, and economic aid from the United States to the Israeli government during what a vast network of individual scholars, human rights groups, UN bodies, and multiple sovereign nations label a genocide. And the aid has not only never stopped, it has increased beyond all rationality.

The federal immigration statute that covers exclusion—a process far less protective of noncitizens than deportation—states that a noncitizen “shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien’s admission would compromise a compelling United States foreign policy interest.” The same provision also makes it clear that the secretary of state has to inform the heads of congressional committees on the judiciary and foreign affairs if they intend to designate someone under this part of the statute. The presumption is that the free speech rights of a noncitizen must be respected; given that this presumption exists in the far less protective realm of exclusion, it should function as a greater protection in the deportation hearings that Khalil is facing.

The true danger of Khalil’s proposed deportation is not in these procedural niceties. The Supreme Court has made it clear that the First Amendment applies to everyone in the United States, citizen or not, and regardless of whether the government finds it offensive. If the secretary of state can simply declare a legal permanent resident deportable as a threat to foreign policy based on their First Amendment protected activities, the First Amendment no longer applies to noncitizens in the United States. We must view this action as part and parcel of the Trump administration’s other challenges to what is settled constitutional law, such as the executive order purporting to overturn birthright citizenship.

In other words, Mahmoud Khalil’s plight constitutes a test case in amending the Constitution by executive action, free from the safeguards that make amendment such a difficult process. Here the beachhead is a stateless Palestinian, targeted in his homeland for extermination, and now persecuted in his supposed place of refuge. The American penchant for unfair treatment of Palestinians continues apace. We can only hope that the courts see this unconstitutional power grab for what it is—but the angry and unthinking self-righteousness of the executive makes for a terrifying foe.

Wadie E. Said is a Professor of Law and Dean’s Faculty Fellow at the University of Colorado Law School and the author of Crimes of Terror.