The arrest and attempted deportation of former Columbia graduate student Mahmoud Khalil raises serious concerns over potential violations of First Amendment free speech rights—Khalil was a student protestor—and the un-checked use of government surveillance. But most of all it exemplifies the Trump administration’s contempt for due process.
Let’s start with the fact that the 30-year-old Khalil is a lawful permanent resident married to a U.S. citizen. The ICE agents who arrested him over the weekend apparently did not know this; they reportedly told Khalil they were revoking his student visa when first attempting to detain him. (They reportedly also threatened his wife with arrest.) Once shown paperwork proving his lawful status, one agent was heard on a phone call explaining that, “he has a green card.” Undeterred by this discovery, however, the agents subsequently told Khalil that they were revoking that green card too.
They can’t do that.
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A person granted a green card has lawful permanent resident status in the United States which entitles them to nearly all the same rights as citizens. Lawful permanent residency can be revoked if a person is found to have committed fraud in their application, to have committed crimes like fraud or aggravated assault, or is otherwise determined to be a national security risk—but this normally requires notice to the green card holder and a hearing at which the government bears the burden of proof. Such a process typically can take years. The rescission of a person’s green card is faster, but involves situations where the holder has left the U.S. for many years or is choosing to give up their permanent resident status. Neither scenario allows an ICE agent (or even a President) to shortcut the process by merely snapping their fingers.
President Donald Trump near-immediately bragged about Khalil’s arrest on Truth Social, promising it would be the first of “many to come” and vowing to deport more university students who he believes are “terrorist sympathizers” as part of efforts to combat antisemitism.
Khalil was involved in pro-Palestinian protests at Columbia, and the Trump administration is arguing this constitutes him “siding with terrorists,” specifically Hamas. No concrete evidence to support this allegation—which both Khalil and his attorney deny—has emerged. Although one provision of U.S. immigration law does allow the possibility of removing a non-citizen who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization,” it does not dispense with due process protections the accused non-citizen is afforded.
Speaking in court Wednesday in New York City, lawyers representing the Trump administration’s Department of Justice confirmed Secretary of State Marco Rubio is relying upon a different provision of federal immigration law that allows for the deportation of a foreigner if that person’s presence or activities “would have potentially serious adverse foreign policy consequences for the United States.”
In an earlier tweet, Rubio wrote that, “We will be revoking the visas and/or green cards of Hamas supporters in America so they can be deported”—an inflammatory message devoid of any reference to the processes and judicial scrutiny that should take place before deportation occurs.
Any commitment to First Amendment rights—a cause the Trump administration often champions—is noticeably missing from these and other Trump administration statements. The First Amendment doesn’t operate as a complete bar against deportation, to be clear; there are complex constitutional questions to be asked in determining what is free speech versus support for a terrorist organization. But the legality of such an action has to be litigated.
Khalil’s case, then, and thorny legal issues it represents are on a fast-track to such litigation. Others will likely follow. Manhattan federal judge Jesse Furman, an Obama appointee, had earlier this week temporarily barred the Trump administration from deporting Khalil; during Wednesday’s hearing, the court extended the deportation ban pending further briefing. It also ordered the government to allow Khalil to have at least two privileged phone calls with his lawyers, who said they had been unable to speak with their client since his arrest and transportation from New York City to a detention facility in Louisiana.
The judge’s order was responding to fast action by Khalil’s lawyers who filed a petition for a writ of habeas corpus seeking to stop the government action. Their use of a habeus corpus petition is significant.
Although, typically associated today with post-conviction relief by prisoners, the “Great Writ” —from the Latin term “that you have the body”—has long served as tool for seeking review of unjust incarceration. It was used, for example, extensively during the Reconstruction era by defendants seeking relief from retaliatory, racist detention, raised by Japanese Americans incarcerated by Executive Order 9066 and invoked by Guantanamo Bay detainees during the War on Terror. The writ has a darker side as well; legal scholars have argued that using it to challenge detentions allows the government to identify weaknesses in its authority and remedy them—an outcome odious to the protection of civil liberties.
(Trump’s DOJ lawyers refused to transport Khalil back from Louisiana absent a court order, and said they plan to file a motion seeking to dismiss his habeas corpus petition, arguing that the New York federal court lacked jurisdiction because Khalil had physically been moved elsewhere before it was filed.)
Legal processes, like swords, do not choose their wielder. Those who do not agree with Mahmoud Khalil’s views and actions may still support his right to due process. Others, of course, may not. But the issues raised by his case and the precedents it could set will not be limited only to pro-Palestinian protestors for they involve the scope of government power and how citizens can challenge it.
Therein resides the value of such legal swords—they possess the ability to cut through yet unknown circumstances to clear a path for justice.
