Columbia University graduate student Mahmoud Khalil has been summarily imprisoned for leading pro-Palestinian protests at Columbia, in New York City, last spring, but according to US secretary of state Marco Rubio, his arrest and threatened deportation ‘is not about free speech’.
Khalil, who identifies as Palestinian, holds a green card; he is a legal, permanent US resident, married to a US citizen and has not been accused of committing any crime. Still, having been grabbed in New York for protesting in New York last weekend, he was whisked off to an immigration detention centre in Louisiana, far from his lawyers and family. Federal judge Jesse Furman is considering his request to be returned to New York, and in the meantime has ordered that he be allowed phone calls with his lawyers, a right that the government had denied.
What is the basis for detaining Khalil with no due process? Invoking an obscure, rarely used statute, Rubio has declared that his presence on American soil could have ‘potentially serious adverse foreign-policy consequences’. Or as White House press secretary Karoline Leavitt explained, he ‘had sided with terrorists’, and ‘participat[ed] in protests at which pro-Hamas fliers were handed out’.
In other words, Khalil was guilty of engaging in constitutionally protected speech that offended the Trump administration. As the Foundation for Individual Rights and Expression (FIRE) observes, ‘the administration did not allege that Khalil committed a crime. But it did explicitly cite the content of his speech, characterising it as anti-American and pro-Hamas.’
Sadly, this needs to be said – the First Amendment protects the right to engage in anti-American and pro-Hamas speech and to protest against government policy in the Middle East, extravagantly and even with anti-Semitic fervour. To suggest otherwise is to engage in right-wing wokeism, conditioning speech rights on inoffensiveness.
Whether a legal US resident who does not hold citizenship can be deported because government officials fear the ‘serious, adverse’ consequences of his speech will be a question for the federal courts and, perhaps, ultimately the Supreme Court – unless the administration deports Khalil or sends him to Guantanamo first, extra-judicially. But even if his rights are ultimately vindicated in court, his ordeal will have chilled pro-Palestinian speech, among citizens and non-citizens alike. The Trump White House has already won.
Sadly, this also needs to be said – defending Khalil’s rights does not entail defending or even slightly sympathising with the content of his speech, valorising his politics or his character, or assuming that he would defend the speech rights of his enemies. Perhaps he would welcome the prosecution of anti-Hamas, pro-Zionist agitators whose speech deeply offended a government focussed on Palestinian rights. Who knows? Who cares? Free-speech advocates don’t defend Khalil’s rights because we assume he is one of our own. We defend his rights because they’re everyone’s rights.
The Trump administration will not stop with prosecution of Khalil. Trump himself has warned that his arrest is the first of ‘many to come’. The New York Times reports that federal investigators have ‘scoured the internet for social-media posts and videos that the administration could argue showed sympathy toward Hamas’. So far, investigators have ‘handed over multiple reports to the State Department’.
The administration is also targeting universities accused of hosting anti-Semitic, ‘illegal’ protests. It has cancelled $400million due to Columbia in federal grants and contracts, offering to discuss the cancellation if the university accedes to its demands regarding admissions, disciplinary procedures and academic departments. To merely enter into a discussion about restoring funding, Columbia might have to put itself into a kind of receivership. The Trump administration has threatened 60 other universities (as well as innumerable students) with investigations and sanctions, including arrest.
Trump has not defined an illegal protest. It is, however, a fair description of some pro-Palestinian protests last spring that involved vandalism and targeted, discriminatory harassment, which are not protected by the First Amendment. But Trump’s definition of legal and illegal protests is apparently viewpoint-based, depending on whether they favour and flatter or oppose him. Trump has pardoned violent ‘January 6’ supporters who conducted a bloody assault on Congress and the US Capitol. His concern about anti-Semitism, which flourishes on the right as well as the left, is similarly selective.
Some ardent Zionists may celebrate initiatives allegedly aimed at crushing left-wing anti-Semitism, but none should delude him or herself into thinking that they’re good for the Jews. Trump equates the interests of a right-wing Israeli government with the interests of all Jewish Americans, condemning Jews who criticise Israeli government policy or decline to base their votes in American elections on Israeli priorities. Jews were once accused of harbouring dual loyalties to America and Israel. Now they’re condemned by the president for not harbouring them.
Trump simply inverts an anti-Semitic trope. Jews who vote for Democrats ‘hate Israel’ and ‘hate their religion’, he said this week. ‘They should be ashamed of themselves.’ Democratic Senate minority leader Chuck Schumer, a quintessential New York Jew, supporter of Israel and author of a forthcoming book on anti-Semitism is, in Trump’s view, a ‘Palestinian’, and even ‘a proud member of Hamas’. It’s vicious nonsense, but it sends a message about the supposed disloyalty of Jewish Democrats.
So the crusade against pro-Palestinian protesters is not aimed at curbing anti-Semitism or terrorism. It’s aimed at curbing dissent, like several other administration initiatives. Trump is following through on his promise to punish people and businesses on his enemies list. He is targeting law firms that represented his political opponents, stripping their lawyers of security clearances, denying them access to federal buildings and denying government contractors the right to retain them. The conservative Wall Street Journal condemns these efforts as a betrayal of a ‘cornerstone principle of American justice’ – the universal right to legal representation.
Federal district-court judge Beryl Howell has blocked an expansive Executive Order retaliating against the law firm of Perkins Coie, which had represented Hillary Clinton. But here, too, the message has been sent and the damage done: oppose the president, represent or otherwise align yourself with his opponents, and you put yourself at grave risk. As Howell noted, ‘I’m sure many in the legal industry are watching with horror at what Perkins Coie is going through here’.
So should we all. The Trump administration is successfully stamping out diversity, equity and inclusion (DEI) programmes in education and private enterprise, partly by stamping out speech rights. It should be obvious by now that Trump’s opposition to wokeism is not support for free speech. Consider the administration’s targeting of verboten words, scrubbed from public websites and school curricula and considered red flags for officials awarding grants or contracts. The New York Times has compiled a long, ‘likely incomplete’ federal bad-word list. It includes ‘advocates’, ‘activism’, ‘at risk’, ‘oppression’, ‘Native American’ and – my favourites – ‘women’ and ‘injustice’. It’s going to be a long four years.
Wendy Kaminer is an author, a lawyer and a former national board member of the American Civil Liberties Union.
