Mahmoud Khalil’s Attorney: “This Is the McCarthy Era All Over Again”

Part of the Series

A federal judge in New Jersey will soon issue a ruling on where the deportation case of Mahmoud Khalil, a Palestinian student who led the student encampment at Columbia University last year, can be litigated. On March 8, Khalil was abducted in New York by agents from the Department of Homeland Security (DHS) who told him his lawful permanent residency status had been “revoked.” He is now languishing in a notorious Immigration and Customs Enforcement (ICE) jail in Louisiana, more than 1,000 miles from his U.S. citizen wife who is over eight months pregnant, while U.S. District Judge Michael E. Farbiarz decides where his case will be heard. Khalil has been charged with no crime.

On March 9, Khalil was sent to New Jersey and then transported to Louisiana late that night into the next morning. On March 10, a New York federal judge blocked Khalil’s deportation while his legal challenge is pending.

On March 28, a hearing took place in New Jersey before Judge Farbiarz. Baher Azmy, legal director at the Center for Constitutional Rights (CCR) and one of Khalil’s attorneys, told the judge that his client’s detention was “Kafkaesque.”

Khalil’s lawyers argued to Judge Farbiarz that the case should remain in New Jersey where he filed a petition for writ of habeas corpus and that he should be released on bail. The Trump administration wants the case to proceed in a Louisiana district court so it will eventually come before the Fifth U.S. Circuit Court of Appeals, which is packed with Trump appointees. In January, the Fifth Circuit ruled against the Deferred Action for Childhood Arrivals program. Judge Farbiaz said he would issue his jurisdictional ruling soon.

“Mahmoud Khalil must be freed,” Samah Sisay, staff attorney at CCR and another member of Khalil’s legal team, told me. “The government’s unlawful decision to arrest and transfer him to a remote immigration jail in Louisiana is a punitive and coercive tactic to quash his protected speech in support of Palestinian rights.”

Khalil said in a statement, “My unjust detention is indicative of the anti-Palestinian racism that both the Biden and Trump administrations have demonstrated over the past 16 months as the U.S. has continued to supply Israel with weapons to kill Palestinians and prevented international intervention.”

As the number of Palestinians killed in Israel’s genocidal campaign since October 7, 2023, surpasses 50,000, the Trump administration is intensifying its repression against critics of the Israeli regime, branding anyone who supports the Palestinian people as “antisemitic” and a supporter of terrorism. Even U.S. lawful permanent residents are now in Trump’s crosshairs. His administration says the arrest of Khalil is a “blueprint” for investigations and deportations of prominent student activists.

Khalil Was Targeted Pursuant to Trump’s Executive Orders

Shortly after his inauguration on January 20, 2025, Donald Trump signed two executive orders aimed at pro-Palestine advocacy: Executive Order 14161, “Protecting the United States from Foreign Terrorists and other National Security and Public Safety Threats” and Executive Order 14188, “Additional Measures to Combat Anti-Semitism.”

Executive Order 14161 declares that it is U.S. policy to “protect its citizens” from noncitizens who “espouse hateful ideology.” It articulates the administration’s intention to target noncitizens who “advocate for, aid, or support designated foreign terrorists and other threats to our national security,” those who hold “hateful” views, and those who “bear hostile attitudes toward [America’s] citizens, culture, government, institutions, or founding principles.” The order’s broad framing of “hostile attitudes” towards the U.S. government could encompass any form of political dissent, including advocacy for Palestinian rights.

Executive Order 14188 says that the administration will target for investigation “post-October 7, 2023, campus anti-Semitism.” The order adopts a definition of antisemitism that includes constitutionally protected criticism of the Israeli government and its policies. In a fact sheet accompanying Executive Order 14188, the White House describes the measure as “forceful and unprecedented,” specifically targeting “leftist, anti-American colleges and universities.” It frames the order as a “promise” to “deport Hamas sympathizers and revoke student visas,” conveying a clear message to all “resident aliens who joined in pro-jihadist protests” that the federal government “will find you, and we will deport you.”

Khalil was abducted in New York by agents from the Department of Homeland Security who told him his lawful permanent residency status had been “revoked.”

The abduction of Khalil was carried out “in support of President Trump’s executive orders prohibiting anti-Semitism, and in coordination with the Department of State,” DHS wrote in a statement. It accused Khalil, with no evidence, of having “led activities aligned to Hamas, a designated terrorist organization” and asserted that both “ICE and the Department of State are committed to enforcing President Trump’s executive orders and to protecting U.S. national security.”

In a post on Truth Social, Trump described Khalil as a “Radical Foreign Pro-Hamas Student on the campus of Columbia University.” Trump declared that his administration would not tolerate “students at Columbia and other universities across the country who have engaged in pro-terrorist, anti-Semitic, anti-American activity” and promised to “find, apprehend, and deport these terrorist sympathizers from our country.”

On March 13, when asked if “any criticism of the Israeli government [is] a deportable offense,” if “any criticism of the United States [is] a deportable offense,” if “any criticism of the government [is] a deportable offense,” and if “protesting [is] a deportable offense,” DHS Deputy Secretary Troy Edgar did not dispute any of those statements.

Marco Rubio Invokes the Foreign Policy Ground Against Khalil

Khalil is the first such lawful permanent resident to be arrested using a vague and rarely used provision of the Immigration and Nationality Act (“foreign policy ground”) with no due process, in violation of his First Amendment freedom of speech. Title 8 U.S.C. § 1227(a)(4)(C) provides that, “An alien [non-citizen] 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.”

A Palestinian refugee with Algerian citizenship, Khalil played a prominent role in the protests at Columbia against Israel’s genocide. Last spring, while serving as a negotiator between student demonstrators and university officials, Khalil told CNN, “As a Palestinian student, I believe that the liberation of the Palestinian people and the Jewish people are intertwined and go hand-in-hand and you cannot achieve one without the other.” He characterized the movement as one “for social justice and freedom and equality for everyone,” adding, “There is, of course, no place for antisemitism. What we are witnessing is anti-Palestinian sentiment that’s taking different forms and antisemitism, Islamophobia, racism [are] some of these forms.”

Nevertheless, on March 9, Secretary of State Marco Rubio made a determination that Khalil’s “presence or activities in the United States would have serious adverse foreign policy consequences for the United States.”

On March 11, an administration spokesperson told The New York Times that “United States’ foreign policy includes combating antisemitism across the globe and that Mr. Khalil’s residency in the nation undermines that policy objective.”

The “foreign policy bar” expressly forbids the secretary of state from issuing a policy that would exclude or condition entry based on a noncitizen’s “past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States,” unless the secretary personally certifies to Congress that admitting the individual would compromise a compelling U.S. foreign policy interest. But Rubio has not provided the chairpersons of the House Foreign Affairs, Senate Foreign Relations, and House and Senate Judiciary Committees with any such certification.

Moreover, in 1990, the 101st Congress expressed its intent to restrict the executive’s power to exclude noncitizen speakers by affirming that such exclusions should not be based solely on “the possible content of an alien’s speech in this country,” that the secretary of state’s authority to decide that entry would negatively impact foreign policy interests should 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,” and that the “compelling foreign policy interest” standard should be applied strictly.

Since the “foreign policy ground” was enacted by Congress as part of the Immigration and Nationality Act several decades ago, it has rarely been invoked and is used for cases involving high-ranking government officials or alleged terrorists who are removable on other grounds and subject to high-profile prosecutions in their country of origin. It does not appear to have ever been applied to any individual for engaging in First Amendment protected speech.

“What the Trump administration is attempting to do to Mahmoud is truly outrageous,” attorney Marc Van Der Hout told me. “The provision of law that the government is trying to use to deport Mahmoud, a legal permanent resident of this country, is virtually unprecedented in this context.”

Khalil has been charged with no crime.

Van Der Hout, along with other members of his firm, is representing Khalil in his immigration proceedings and they are co-counsel in the federal court challenge to his arrest, detention and prosecution by the government. “The government is going after Mahmoud for his completely protected First Amendment activities and speech which the immigration statute itself forbids absent exceptional circumstances. We are challenging this in federal court, and we will be challenging it in the immigration arena as well,” Van Der Hout added.

Rubio’s Determination and the Targeting of Khalil Violate the First and Fifth Amendments

In his amended petition for writ of habeas corpus, filed on March 13, Khalil asserts that the government has violated his First Amendment right to freedom of speech, the Fifth Amendment’s requirement of due process and the Administrative Procedure Act (APA).

By targeting, arresting, transferring and detaining Khalil, the administration violated the First Amendment by retaliating against and punishing him for his past protected speech; preventing him from speaking while in detention; attempting to chill (through past punishment and ongoing threat) or prevent (through eventual removal) his future speech in the U.S.; depriving audiences of his present and future speech on matters of public concern; and chilling other individuals from expressing views sympathetic to the Palestinians.

The “foreign policy ground” violates due process as it is unconstitutionally vague because ordinary people cannot understand what conduct is prohibited and it allows for arbitrary and discriminatory enforcement.

The government’s policy of targeting noncitizens for removal is arbitrary and capricious (as prohibited by the APA), constitutes an abuse of discretion, is contrary to the First Amendment, contrary to law, and was promulgated in excess of statutory jurisdiction.

Khalil’s arrest is having a chilling effect on political debate about a significant international issue. His lawyers wrote in their preliminary injunction motion that many noncitizens, including lawful permanent residents, “now live in fear that they will be next if their actual or imputed speech brings them into the crosshairs of this administration, and many are choosing to stay silent going forward.” Trump and Rubio could apply their policy “to any pro-Palestine speech by any noncitizen.”

Khalil’s Arrest Is “the First of Many to Come”

Nine days after Khalil’s abduction, in an attempt to bolster its case against him, the U.S. government came up with a new rationale to deport him. On March 17, DHS charged that Khalil had omitted from his application for permanent residency that he was a member of the United Nations Relief and Works for Palestine Refugees (UNRWA), that he was employed by the Syria Office of the British Embassy in Beirut, and that he was a member of the Columbia University Apartheid Divest, a coalition of student groups promoting the demands of the Boycott, Divestment, Sanctions (BDS) movement.

Khalil’s arrest is “the first of many to come,” Trump posted on Truth Social. Indeed, his repression against pro-Palestinian voices is proceeding apace.

Trump’s regime is rounding up students and faculty who are lawfully in the country, whether they have a green card or a visa.

Yunseo Chung, another lawful permanent resident and a third-year student at Columbia, has also been targeted by the Trump administration. Born in South Korea, Chung has resided in the U.S. since she was 7 years old. Although she has not made public statements to the press or assumed a high-profile role in pro-Palestine protests, Chung participated in a March 5 demonstration opposing the university’s excessive punishments for student protesters facing campus disciplinary proceedings.

Trump’s administration says the arrest of Khalil is a “blueprint” for deportations of prominent student activists.

Days later, the government launched a series of unlawful efforts to arrest, detain and remove Chung from the U.S., claiming it had “revoked” her lawful permanent residency status. Rubio invoked the same “foreign policy ground” against Chung that he rendered against Khalil. Chung has sued officials of the Trump administration to prevent them from detaining, transferring or removing her from the U.S.

Several students and professors lawfully present in the U.S. with visas have been detained and deported for their pro-Palestinian activism and many have filed legal challenges against the Trump administration. On March 27, Rubio declared that at least 300 foreign students have had their visas revoked.

The administration is apparently targeting noncitizen students for deportation just for “liking or sharing posts that highlighted ‘human rights violations’ in the war in Gaza,” signing “open letters related to the war,” and “call[ing] for ‘Palestinian liberation.’” The Israeli newspaper Haaretz asserted that ICE has “reportedly paused its human trafficking and drug smuggling investigations to have agents monitor social media for posts and likes from pro-Palestinian students.”

Trump’s witch hunt against pro-Palestinian voices harkens back to a dark time in our history.

“This is the McCarthy era all over again,” attorney Van Der Hout told me. “The government tried this 40 years ago against a group of Palestinians I represented in Los Angeles and, after 20 years, the case was thrown out for government misconduct. It was outrageous then, and it’s outrageous now. Mahmoud will be challenging this until his rights to speak out about what is happening in Palestine and anywhere else are vindicated.”

Attorney Sisay told me that, “As long as he remains in ICE custody, away from his pregnant wife and movement community, his ability to speak freely, and the ability of many other students speaking out against the Israeli government’s genocide in Gaza, will continue to be chilled.”

Note: After this article went to press, Judge Farbiarz refused the Trump administration’s request to transfer Khalil’s legal challenge to Louisiana. The U.S. District Court for the District of New Jersey ruled that the challenge to ICE’s unlawful detention of Khalil should continue in New Jersey. “I am relieved at the court’s decision today to keep my husband’s ongoing case in New Jersey. This is an important step towards securing Mahmoud’s freedom, but there is still a lot more to be done,” said Dr. Noor Abdalla, Khalil’s wife.

Posted in Progressive Political News