The Foundation for Individual Rights and Expression sees a speech code at work in the current administration's action.
Yesterday, an administration official told The Free Press, “The allegation here is not that [Khalil] was breaking the law.” This was confirmed today by White House Press Secretary Karoline Leavitt, who announced Khalil is being targeted under a law that she characterized as allowing the secretary of state to personally deem individuals “adversarial to the foreign policy and national security interests of the United States of America.”Once the punishment cycles of a grim strategy outcome begin, ending them is hard. While the Foundation essay concludes, "This is America. We don't throw people in detention centers because of their politics. Doing so betrays our national commitment to freedom of speech," I have no doubt that people still being held on "insurrection" charges after that futile and stupid gesture at the Federal Capitol might think differently; and the continued loose talk about "misinformation" or "disinformation" as a way of stifling opposing points of view is a betrayal.
Leavitt said Khalil “sid[ed] with terrorists,” “organized group protests” that “disrupted college campus classes and harassed Jewish American students and made them feel unsafe,” and distributed “pro-Hamas propaganda.” She also said the Department of Homeland Security is trying to track down “other individuals who have engaged in pro-Hamas activity” at Columbia University.
The law Leavitt appears to be citing requires the secretary of state to have "reasonable ground to believe” the person’s “presence or activities in the United States . . . would have potentially serious adverse foreign policy consequences for the United States.”
The administration is wielding this standard — deportation for people whose activities could cause “serious adverse foreign policy consequences for the United States” — to arrest and detain an individual graduate student. In explaining how he met this standard, the administration did not allege Khalil committed a crime. But it did explicitly cite the content of his speech, characterizing it as “anti-American” and “pro-Hamas.” Protesting government policy is protected by the First Amendment, as is rhetorical support for a terrorist group (if not directly coordinated with it, which the government has not alleged here).
Disrupting college classes and harassing students is not protected expression, to be sure, and Leavitt stated that Khalil organized protests that may have done so. But the administration has not detailed Khalil’s specific actions with respect to those protests, so it remains unclear whether Khalil himself violated any campus rules against discriminatory harassment. Whether any such violation justifies detention and deportation is a separate question. In either adjudication, Khalil must be afforded due process.
There are millions of people lawfully present in the United States without citizenship. The administration’s actions will cause them to self-censor rather than risk government retaliation. Lawful permanent residents and students on visas will fear a knock on the door simply for speaking their minds.
But the onus is on resident aliens to be circumspect about speaking their minds.
An alien’s admission to or presence in the United States is a privilege, and our fundamental law does not require the government to admit any non-Americans. Nevertheless, the current against ideology-based immigration restrictions has been a long-term trend in statutory law and government policy. It started during the Cold War, when progressives contended that anti-anti-Communism was more dangerous than Communism itself. It picked up steam after jihadist terrorism became a profound threat in the 1990s, when administrations of both parties recoiled from the remorseless fact that jihadism is driven by sharia supremacism — an interpretation of fundamentalist Islam prevalent in the Middle East and many Islamic enclaves that have sprouted up in the West.The law as applied is subject to all manner of logic-chopping, but Andrew McCarthy suggests the administration is applying it properly in seeking the removal of Mr Khalil.
I do not believe that Khalil’s activities in the U.S. should be deemed lawful speech and association. If reports are correct, Khalil was active as an agent of agitators who carried out lawless activities. That is not mere speech and association, and it would be unlawful if engaged in by Americans — indeed, that is why dozens of Americans were arrested in connection with the campus unrest.Such an overhaul, though, requires an Act of Congress. Good luck with that.
Nevertheless, the Trump administration is clearly trying to ensure that it has a legal basis to deport pro-Hamas activists even if a court finds that their behavior would have been immune from prosecution, on First Amendment grounds, if engaged in by Americans. It thus makes sense to rely on Secretary Rubio’s judgment regarding the foreign policy ramifications of Khalil’s activities.
As a secondary position, the administration should also argue that Khalil is deportable for pro-Hamas activity. The Justice Department should also be aggressively investigating to uncover whether the conduct of Khalil and his cohort is worthy of prosecution — as material support to terrorism and/or as any form of immigration fraud (i.e., did Khalil and others similarly situated make misrepresentations or material omissions in seeking entry into the United States or in seeking to adjust their immigration status?).
As we’ve seen with the surge of Jew-hatred and pro-terrorist agitation on campus and on our streets, it is vital to national security and domestic tranquility that we overhaul immigration laws that frustrate the government’s constitutional authority to exclude and deport aliens based on their adherence to anti-American, anti-constitutional ideologies.
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