Blueprints for a Crackdown

Since Israel launched its genocidal war against the Palestinian people of Gaza, the US government has done everything in its power to back the slaughter. They have raced to provide Israel with the weapons it has used to massacre civilians. They have repeatedly immunized Israel from accountability on the international stage and blocked cease-fire resolutions at the United Nations Security Council. And at home, the US government has shown its willingness to shred the First Amendment to suppress the growing outrage at Israel’s conduct.

Under the Biden administration, the United States entered a crisis for civil liberties reminiscent of the early “war on terror” period. As intolerable as that was, Donald Trump, backed by hard-right supporters of Israel, has sought to take the United States back to the McCarthy era or first Red Scare.

On the campaign trail, Trump made clear his intent to deport student protesters. Such calls mirrored a plan put forward by the Heritage Foundation, a right-wing think tank, to destroy the Palestine solidarity movement. After Trump was elected, the hard-right Zionist group Betar boasted it was providing the incoming Trump administration with deportation lists. According to the group, Khalil, who was a negotiator between student protesters and the administration at Columbia, was named as a potential target for the Trump administration.

Once elected, Trump signed a series of executive orders ostensibly targeting antisemitism and support for terrorism. These orders were widely understood as being about cracking down on noncitizens, especially student visa holders, who supported Palestinian human rights. As part of this effort, the Trump administration launched a whole-of-government initiative centering on the State Department but also including the Department of Homeland Security and Department of Justice.

Arrests of noncitizens soon followed. Many observers were surprised when the Trump administration’s legal basis for the arrests was an obscure McCarthy-era law. Written in vague and obtuse language, the provision creates a process where the secretary of state can unilaterally decree a noncitizens’ presence in the US poses “serious adverse foreign policy consequences.” Once such a determination has been formally made, that individual can be deported. Prior to Trump’s politically motivated deportation wave, only one federal judge, Maryanne Trump Barry, had weighed in on the law. The judge, who also happened to be Trump’s sister, found the law to be unconstitutional in a 1996 ruling that was later overturned for unrelated reasons.

While federal judges can exercise some judicial oversight over deportations, removal proceedings take place in immigration courts. Immigration courts are not part of the federal judiciary but the Department of Justice. Immigration judges quite literally are employed by the same body seeking deportation. Under the Clinton administration, the Board of Immigration Appeals ruled that if a secretary of state determines a noncitizen poses a foreign policy threat, immigration judges must find them removable. It must be noted that the Board of Immigration Appeals is not only appointed by the attorney general, but their decisions can be modified or even reversed by the attorney general. The ruling was binding on all immigration judges.

Legal Whiplash

Following Khalil’s warrantless arrest on March 8, he has been involved in two parallel legal proceedings. One has been in Louisiana, where he stood before an immigration court as part of his removal proceedings. Khalil has also filed a habeas petition in federal court challenging the constitutionality of his detention.

In immigration court, Judge Jamee E. Comans, a former lawyer for Immigration and Customs Enforcement (ICE), has ruled that Khalil was removable as Secretary of State Marco Rubio had determined he was a threat to US national security. The Trump administration also brought up other grounds for deporting Khalil, claiming that his immigration application was misleading. Khalil’s attorneys deny that charge and have attempted to submit evidence refuting it. As the immigration judge made her decision solely on the Rubio determination, Comans refused to hear their evidence.

Khalil’s constitutional challenge is being heard in New Jersey by Judge Farbiarz. As part of this challenge, Khalil has sought a preliminary injunction preventing the Trump administration from detaining him and setting aside the Rubio determination against him. The injunction also sought to stop the Trump administration from “enforcing their Policy of arresting, detaining, and removing noncitizens who engage in speech in the United States supporting Palestinian rights or critical of Israel.”

On May 28, Farbiarz ruled that Khalil was likely to succeed on his claim that the law the Rubio determination was based on was likely unconstitutional when applied to his domestic speech. The judge also ruled that Khalil was unlikely to succeed on his constitutional challenges to the Trump administration’s second ground for his deportation. Instead of granting the injunction, the judge demanded further arguments from Khalil’s lawyers. After weighing those arguments, Farbiarz ruled in favor of Khalil, stating that the government could not detain him based on the Rubio determination.

The judge stayed Khalil’s release for two days in order to give the government a chance to appeal. When the deadline came for the order to go into effect, the government had not yet appealed. Instead, they had another trick up their sleeve. They now claimed Khalil was not being detained based on the Rubio determination, but on the charge he submitted a misleading immigration application. Thus, the judge’s injunction did not apply to his ongoing detention. Surprisingly, Farbiarz agreed with the government.

Following this, Khalil again requested he be granted bail or transferred from Louisiana to New Jersey. After over a hundred days in detention, the federal judge finally ruled on his request for bail and ordered that Khalil be set free. As part of the conditions of his bail, Khalil has had to surrender his passport and is restricted in where he can travel. Given that the US government is trying to expel Khalil from the country, these provisions are particularly perverse.

Khalil is free from custody, but his legal battles continue. Both Khalil’s removal proceedings in immigration court and his habeas challenge in federal court remain very much ongoing. And the Trump administration has made clear it will appeal both the judge’s injunction and his granting of bail.

For now, Khalil’s release is not only a much-needed victory for a young father separated from his family. It is also a setback for the Trump administration in its campaign to curtail the First Amendment rights of those willing to stand up to Israel’s genocide.