Jonathan P. Baird

Occasionally a legal case comes along that captures attention both because of the drama of its circumstances and also because of the importance of its issues. Such a case is the arrest and disappearance of Mahmoud Khalil, a Palestinian masters degree graduate of Columbia University.

Khalil was arrested in New York in a most disturbing fashion. A squad of four unidentified men waited outside Khalil’s residence in an unmarked vehicle. When Khalil and his American wife who is eight months pregnant showed up, they asked if he was Mahmoud Khalil. They refused to identify themselves and they produced no warrant. One said he was from Homeland Security and said Khalil’s student visa had been revoked.

Khalil’s wife explained that Khalil was a legal permanent resident of the United States. He had a green card. The agents were thrown by that and they retreated to make a phone call. Returning quickly, they then announced Khalil’s green card had been revoked. Normally green cards can only be revoked after notice and a hearing before an immigration judge. That didn’t happen in Khalil’s case.

The agents then disappeared Khalil. First he was driven to New Jersey and then he was flown to Louisiana. ICE was playing a a jurisdiction forum-shopping game, hoping to get the case heard before a kangaroo court judge in the Deep South rather than a New York federal court judge. That way ICE hoped a court with no sympathy for immigrants would fast track Khalil out of the country.

The deportation was not fast tracked because of quick action by Khalil’s lawyers. They immediately filed a habeas corpus petition in New York and the court required that Khalil have access to counsel. The court ruled that Khalil must be allowed to stay in the U.S. while his case was pending.

There has been no allegation that Khalil committed any crime and he has not been charged with committing any crime. Khalil was apprehended because he was a prominent leader of pro-Palestinian demonstrations at Columbia last spring. He had served as a negotiator between Columbia administration officials and protesters at the Gaza solidarity encampment.

The seeming offense Khalil committed, according to the Trump administration, was to be “aligned with Hamas”. On social media, President Trump stated he wanted to deport Khalil for participating in pro-Palestinian protests at Columbia. He said it was the first “of many to come”.

The most common way to deport a green card holder is to prove the holder committed a crime. Because there was no crime, the government is relying on a little-used authority from the Immigration Nationality Act. Secretary of State Marco Rubio designated Khalil as someone whose activities “aligned with Hamas”. Rubio argued that he has reasonable grounds to believe Khalil’s presence would have “potentially serious adverse foreign policy consequences for the U.S.”.

Essentially, the deportation they desire is based on not liking Khalil’s speech although they have failed to cite with specificity anything he has said they find objectionable. Like so many, Khalil protested Israel’s war crimes in Gaza. He saw himself as a human rights advocate.

Under our First Amendment, no one can be punished for the ideas they express. The Supreme Court has been clear: government may not prohibit the expression of an idea simply because society finds that idea offensive or objectionable.

The First Amendment protects freedom of speech for both citizens and noncitizens. The government has provided no evidence for the proposition that Khalil is a Hamas supporter or that he is anti-semitic. Opposing Israel’s policies is not the same as antisemitism.

I am Jewish and I am revolted by Israel’s disgraceful conduct in Gaza. The October 7 Hamas attack was criminal but that does not let Israel off the hook for its extreme over-reaction killing over 46,000 people in Gaza since the war started. I hate antisemitism but under the First Amendment even if someone was expressing hateful antisemitic ideas (which Khalil wasn’t) that is protected speech.

The deportation action against Khalil is intended to have a chilling effect to inhibit people and make them afraid to speak up. Trump is opting for a tactic commonly used by dictators. Simply announce and label your enemy is a terrorist. Then you can disappear him and remove him from the country without any due process. This is Trump’s way around the law.

Dictators disappear people. What is worrisome about the Trump administration’s actions with Khalil is their emulation of the disappearance model pioneered by Latin American dictatorships during the Operation Condor dirty wars in the 1970’s-1980’s. In countries like Argentina and Chile, students, artists, intellectuals and leftists were singled out as enemies of the regime. Anyone considered suspicious could be put on a list and disappeared. Thousands were never seen again.

Unidentified goon squads in unmarked cars (like happened with Khalil) cruised the streets, seized those targeted and took them away to secret concentration camps. Thousands ended up drugged and tossed out of helicopters far out in the ocean. Fortunately we are not there yet and hopefully we never will be as courts still function.

These societies were so terrorized it became impossible for a legal system to function. Fear dominated public life. People, including lawyers and judges, did everything to avoid drawing attention to themselves.

The idea of disappearing people as happened in Latin America had Nazi origins under Hitler’s 1941 Night and Fog Decree. Field Marshall Wilhelm Keitel, who had been Chief of the German High Command and who was hanged at Nuremberg for war crimes described Night and Fog this way: “ The prisoners will disappear without a trace. It will be impossible to glean any information as to where they are or what will be their fate”.

If we are honest, we must acknowledge the lack of information we have about what the Trump Administration is doing now as far as rounding up immigrants, disappearing them into camps and deporting them. President Trump and his henchmen like Stephen Miller do not want us to know what they are doing. They just announced they are using the Alien Enemies Act, a zombie law, to allow for summary deportations.

Unlike in Latin America during the dirty wars, citizens and noncitizens in America still have some protection from courts but the Trump administration appears to have every intention to shred the constitution as they are doing in the Khalil case. Our situation is hardly reassuring. Whether you are Republican, Democratic or independent, all of us are threatened now by a regime of soulless nihilists who care only about their money. If Khalil can be deported, no one is safe.