Free Speech Under Fire

Friday’s ruling is part of a broader crackdown on free speech rights related to Israel’s assault on Gaza. According to Irene Khan, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the war in Gaza “has unleashed a global crisis of freedom of expression.” The United States, which is Israel’s primary backer, has not been immune to this crisis.

The Biden administration not only offered military support to Israel’s genocidal campaign in Gaza; it condemned congressional supporters of a cease-fire as “repugnant” and Columbia University student protests as “antisemitic.” At the same time, it was completely silent about nationwide violations of First Amendment rights as student protesters were repressed, often facing violence with the approval of federal politicians.

In November 2024, Trump was elected president on a platform that called for expanding immigration enforcement. In preparation for the second Trump administration, the far-right Zionist group Betar announced that it was using facial recognition technology to determine which pro-Palestine protesters were student visa holders, with the aim of creating deportation lists. According to Betar, Khalil was one of the students on its deportation lists.

In March, the Trump administration launched the AI-powered “Catch and Revoke” program to target student visa holders who are purportedly sympathetic to foreign terrorist organizations like Hamas. (The administration, of course, has indicated that it views any criticism of Israel as sympathy with Hamas or antisemitism.) According to a report in Axios, Catch and Revoke is a whole-of-government initiative involving the State Department, the Department of Justice, and the Department of Homeland Security. The FBI and ICE are part of the Department of Justice and the Department of Homeland Security, respectively.

The program rightfully generated controversy after it was revealed to be using artificial intelligence to surveil student visa holders’ social media accounts in order to find posts about Palestine. The AI-driven mass surveillance of social media to select individuals for government retaliation based on thought crimes is both dystopian and a Pandora’s box that, once opened, will not remain limited to immigration enforcement.

But Catch and Revoke uses low-tech methods as well. It relies on public reports about political demonstrations and lawfare complaints filed against universities by anti-Palestinian groups. And there is growing evidence that its efforts have been at least partially fueled by the deportation lists and blacklists created by private citizens. (Along with the advocacy organization Defending Rights & Dissent, I have filed a series of Freedom of Information Act requests to learn about the scope of Catch and Revoke and the role of independent blacklisters and the Israeli government in spurring retaliatory action against Palestinian solidarity activists.)

Khalil Before the Courts

As soon as Khalil was abducted by ICE agents, his lawyers filed a habeas corpus petition in federal court. As a result, there are two separate legal proceedings in two separate court systems concerning Khalil’s fate. Although immigration law can have life-and-death ramifications, it is considered a civil, administrative matter. Immigration judges are not part of the federal judiciary created by Article III of the US Constitution. Instead they work for the Department of Justice, part of the same executive branch that is seeking to deport Khalil.

A habeas petition argues in federal court that one has been unlawfully detained. While habeas petitions typically name the jailer as the defendant in a lawsuit, they provide a vehicle for a wide range of legal remedies. Those who have been wrongfully convicted of a crime challenge their initial trial through habeas petitions. And earlier this week, the Supreme Court ruled that habeas petitions were the means by which one should challenge a potential deportation under the Alien Enemies Act, a 1798 wartime law that has been recently invoked by the Trump administration to allow the president to detain and deport citizens of an “enemy nation.”

In Khalil’s habeas petition, he is asserting that his deportation is an unconstitutional retaliation against him for his First Amendment–protected speech. Because immigration judges generally do not make rulings on the constitutionality of the underlying statute, if Khalil were to prevail on a constitutional issue, it would be as part of his habeas petition.

After a fight between the Trump administration and Khalil’s legal team about what court should hear his habeas petition, two separate federal judges have ruled that the District Court of New Jersey has jurisdiction over the petition. Khalil’s immigration hearing, on the other hand, took place at the LaSalle Detention Center in Jena, Louisiana, where he is being detained. The Trump administration is currently arguing that a federal court cannot entertain Khalil’s habeas petition. The government’s argument is twofold: first, that it is too early in the parallel immigration hearing process for a federal court to step in, and second, that Rubio’s determination that Khalil’s presence in the United States has adverse implications for foreign policy is a political question no court can review.

Khalil was arrested on March 8 and has been in detention for over a month. Yet the process by which Judge Comans made her determination that he could be removed from the country was remarkably expeditious. Khalil had his first immigration hearing on Tuesday, April 8. While journalists and supporters could attend the hearing in person, Comans blocked the public from attending remotely.

I was denied remote access to the hearing on Tuesday, along with at least two other reporters, Sam Carliner of Left Voice and Katrina Kaufman of CBS News. In spite of a plea from press freedom organizations to reverse this decision for Friday’s hearing, the judge declined to open access to the hearing to journalists who were not present at the detention center (full disclosure: my organization, Defending Rights & Dissent, signed on to the appeal, which was initiated by the Freedom of the Press Foundation).

According to a report from ABC News, the judge forced Khalil’s lawyers to plead on the spot to the government’s myriad accusations during Tuesday’s hearing. Judge Comans gave the government twenty-four hours to present evidence while noting that she would rule on it on Friday. The defense asked for more time to review and respond to the government’s evidence, but this request was denied. Marc Van Der Hout, a lawyer for Khalil who also acted as counsel to the LA Eight, called the Friday timeline a rush to judgment that would deprive Khalil of due process.

Following the judge’s request, the government produced a two-page memo from Rubio. The sparse memo was obtained and published by the Associated Press. It made clear that Rubio believes he can deport individuals for “past, current, or expected beliefs, statements, or associations that are otherwise lawful.” The memo claimed the United States had a compelling foreign policy interest in combating antisemitism and that the political protests Khalil took part in against Israel’s genocide were “antisemitic” and “disruptive.”

This was the extent of the government’s case against Khalil. The memo refers to a profile of Khalil prepared by Homeland Security Investigations, a law enforcement agency within ICE, but that profile was not included in the documents released by the Associated Press. Khalil’s lawyers asked to depose Rubio about his determination, but Comans rejected that request.

A little over seventy-two hours after Khalil’s first immigration hearing, an immigration judge found Rubio’s determination satisfactory under the law to support removing the US permanent resident from the country. Van Der Hout called it a “kangaroo court.”

What Happens Next?

Khalil’s battle is not over. His habeas petition challenging the constitutionality of his detention is still a live issue that will be considered before a federal court. The federal judge has ordered that Khalil’s deportation be stayed until he can rule on the habeas petition.

Even in immigration court, Khalil still has options. Having been found to be removable, Khalil can request relief from deportation. He can also eventually appeal the judge’s decision to the Board of Immigration Appeals.

But the ease with which the Trump administration has been able to have Khalil abducted, whisk him away to a private prison in Louisiana, and have an administrative judge ratify a legal assault on the First Amendment rights of a US permanent resident is troubling, to say the least.

For now, Khalil remains a political prisoner in the United States. And his case remains intertwined with the fate of free speech in this country.