Yesterday, New Jersey Federal Judge Michael Farbiarz once more ordered the release of Mahmoud Khalil, a green card holder and former Columbia University grad student who was abruptly taken into custody by immigration agents in March from his uptown apartment and sent to a detention facility in Louisiana.
His case is the first known attempt by President Trump’s administration to use an obscure provision of a 1952 immigration law that says “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 is deportable.”
That theoretically enables the secretary of state to remove anyone fitting the definition, but even on those extraordinarily expansive grounds, the federal government has never been able to explain just how a campus protester could possibly cause “serious adverse” foreign policy problems. Khalil’s only action was pro-Palestinian/anti-Israel speech. And speech is protected, which is why Farbiarz thinks that the 1952 law is unconstitutional.
Khalil has been locked up since March despite being charged with no crime nor any specific immigration offense. The basic facts are that he was taken into custody and kept in detention exclusively for engaging in speech, a reality that the government does not and never has disputed and which holds regardless of whether you agree with his speech.
This is the second time that Farbiarz has ordered Khalil released; after the first, the administration refused to release him on the argument that it was no longer doing so over the speech question but some alleged inaccuracy in Khalil‘s petition for permanent residency. This is what authoritarian governments do: once it’s been determined that you are a political enemy of the state, they will simply keep fishing for ways to take away your rights and your ability to oppose them.
This country cannot have a lawless government. Fortunately, we still have an independent judiciary that can step in to block some of the administration’s abuses, though the courts now find themselves overwhelmed by trying to parse the onslaught of Trump‘s abuses.
This is ultimately about more than Khalil and more than the specific arguments at issue here. Each of the nearly 25 million noncitizens in the country, including the many legal permanent residents who had assumed that they were fairly insulated from the government’s capriciousness, have now seen a man kept locked away for months for the simple act of expressing a political position, and the case is far from over.
The White House, which since Jan. 20 has denigrated the authority of the courts, said in response to Farbiarz’s order that the court “lacked jurisdiction“ and they would be appealing and looking “forward to removing Khalil from the United States.”
Why would anyone take the risk to speak on practically anything remotely controversial — from the Mideast to tariffs to local elections — when the federal government has granted itself the power to ruin their lives for disfavored speech? Even citizens, seeing the extent of the administration’s efforts here, might think twice about using their own First Amendment rights. The only solution here is for Trump to be roundly defeated in the courts, and in the court of public opinion.
