Government's crackdown on Mahmoud Khalil's pro-Palestinian free speech threatens First Amendment protections

For over two months, the government has been targeting international students and scholars for arrest, detention and deportation based on their political views. Mahmoud Khalil, a green card holder and prominent advocate for Palestinian rights at Columbia University, was the first of these. He was taken from his home and detained 1,500 miles away from his family. He has been in detention since early March and was forced to miss the birth of his first child, solely because of his political beliefs.  

He isn’t the only one. Other students and scholars, like Rumeysa Ozturk, Mohsen Mahdawi, and Dr. Badar Khan Suri, have been arrested and detained, despite having committed no crime and having valid immigration status.  

This attempt by the government to suppress dissenting opinions is unconstitutional, and if it succeeds in court, it sets a troubling precedent that will impact all of us, citizens and noncitizens alike. But the First Amendment exists precisely to stop the government from punishing people for their political views. 

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To justify this brazen attack on free speech, the government is citing the Immigration and Nationality Act’s “Foreign Policy Ground.” The law states that a noncitizen is deportable if the Secretary of State believes their “presence or activities” in the country would have “potentially serious foreign policy consequences for the United States.”  

But it explicitly prohibits deportation because of someone’s views and associations, except in extreme cases such as those involving high-level foreign officials, and Congress made clear that “this authority would be used sparingly and not merely because there is a likelihood that an alien will make critical remarks about the United States or its policies.”  

This law is almost never invoked. In its court filings, the government has identified only five previous instances in which it has been used to remove noncitizens over the past three decades. In all that time, the law has never been cited to detain or deport anyone for their political beliefs – until it was used against Khalil.  

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Since then, the government has used it to argue that it has unlimited discretion to detain and deport any noncitizen whom the government considers a foreign policy risk for any reason – and that the courts are powerless to review its decisions, even if they violate the First Amendment. 

In Khalil’s case, and several others, the only evidence the government has cited in support of its foreign policy claims is constitutionally protected speech about Israel and Palestine. 

According to Deputy DHS Secretary Troy Edgar, Khalil was targeted for “put[ting] himself in the middle of the process of basically pro-Palestinian activity.” When asked if “any criticism of the Israeli government,” “any criticism of the United States,” “any criticism of the government” or “protesting” are deportable offenses, Mr. Edgar did not provide a direct answer. Instead, he stated if Mr. Khalil admitted an intention to “go and protest” when he had initially applied for a student visa, “we would have never let him into the country.”  

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Similarly, Ozturk’s student visa was targeted because government officials didn’t like the op-ed she co-wrote in the Tufts University student newspaper. Secretary of State Marco Rubio said this kind of advocacy was “creating a ruckus” that justified her removal from the country.  

And so, after her visa was secretly revoked, she was snatched off the streets of Somerville, Mass., by masked, plainclothes ICE agents, transported across multiple states overnight, and thrown into a detention facility in Louisiana – where she remained for six weeks until another court ordered her release.  

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The government has tried to undermine the Constitution in these cases by arguing that the First Amendment does not apply to noncitizens, but that’s just wrong. The Supreme Court recognized 80 years ago that “freedom of speech and of press is accorded aliens residing in this country.” That freedom protects all of us – citizens and noncitizens alike – from government officials who would abuse their power to suppress criticism. 

Fortunately, the federal courts are beginning to stand up to these flagrant First Amendment violations. Mohsen Mahdawi, Rumeysa Ozturk, and Badar Khan Suri have all been released on bail while their cases proceed. As the federal court in Mahdawi’s case recognized when it ordered his release, it is “extraordinary” that “[l]egal residents—not charged with crimes or misconduct—are being arrested and threatened with deportation for stating their views on the political issues of the day.”  

However, Mahmoud Khalil is still being held in Louisiana, far away from his wife and newborn son, as his request for release remains pending. Regardless of what you think about Israel or Palestine, we should all defend our First Amendment right to free speech. Because if freedom of speech means anything, it means the government can’t arrest you, detain you for weeks or months on end, and remove you from the country just because it doesn’t like what you have to say.