Speech Is Not a Crime.

The ICE arrest of pro-Palestinian protester Mahmoud Khalil is textbook authoritarianism.

Photo by K E on Unsplash

On Saturday, Columbia graduate student and US green card holder Mahmoud Khalil was arrested by ICE agents and spirited off from to a detention center in Louisiana. His pregnant US citizen wife wasn’t told where he was taken. As far as I can tell, no criminal charges against him have been filed. The Trump administration is deeming him a national security threat, it seems because of his involvement with campus groups protesting the Israel-Hamas war, and his anti-Israel and pro-Palestinian views. A federal judge has halted the deportation.

Cards on the table: I think the group Khalil belongs to, Columbia University Apartheid Divest (CUAD), is poisonous and led by bad actors who have harmed their cause far more than they’ve helped. I agree with their opposition to war in Gaza, their demands for a Palestinian state, and their view that Palestinians are among the most abused and ill-treated people on the planet, but I’m not on board with their broader aim of eliminating the state of Israel; I find their tactics — breaking generally-applicable rules and then expecting special treatment; interrupting other students’ learning; bulling and intimidating others; sympathizing with, echoing the language of, and even supporting terrorist organizations — to be abhorrent.

Nothing in the above paragraph actually matters.

I begin with all of this to say that it’s possibly to disagree with Khalil’s speech, to not make Khalil a hero or a martyr, and also to say that his arrest, detention, and attempted deportation is an egregious violation not only of his rights, but of everything America is supposed to stand for.

This is an emergency moment. We must meet it.

If Khalil actually committed a crime, then he should be investigated and charged. We are a nation of laws, and we have the ability to prosecute wrongdoers where appropriate. What’s particularly scary here is that the Trump administration is using an obscure decades-old statute to deport a legal resident of the United States — because, I suspect, they know that Khalil didn’t actually commit any serious crimes. Instead, they don’t like what he’s saying and advocating for.

The statute says that any “alien 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.” You may agree that Khalil meets this definition (I don’t). But the Trump administration seems (maybe? they haven’t said much) to be saying that anti-Semitism has serious adverse foreign policy consequences for the US. If so: Big news for all the Christian nationalists and white supremacists who have been tied to this administration over the years.

Consider how broad this statute is, and who else might fall within its expansive authority. In Putin’s Russia, LGBTQ activism has been classified as “extremist” and a threat to the state. Authoritarian governments throughout history have deemed liberals, journalists, academics, and others enemies of the state. This administration has already flagged words it wants to disappear, and they’re mostly about gender issues, race issues, and LGBTQ issues — these issues, and the people who work on them, are seen as dangerous by the current American leadership. Trump has said that he wants to deport many more Gaza protestors.

One of America’s foundational promises is found in the very first amendment to our constitution: When you are on American soil, you are generally free to speak, organize, assemble, and practice your faith freely without the government penalizing you. This is a beautiful, tremendous thing. It’s also often a difficult and uncomfortable thing; it means Nazis get to march in public, that someone can stand on a street corner and spit slurs, that Elon Musk can throw up an arm motion that looks a whole lot like a Heil Hitler and no one comes to arrest him. But it’s also a protective force: It means that activists can push boundaries. It means I can write this newsletter criticizing the Trump administration and not (hopefully) wind up in jail. It means that you and I are safer, even if we’re advocating for issues that are unpopular with the public, or unpopular with a particular political regime.

I think some of what CUAD and other anti-Israel groups at Columbia have said and done crosses the line into anti-Semitism. But while anti-Semitic speech is ugly, and while it is barred by Columbia’s policies, it is not a crime. The heart of the issue here, I’m guessing, is the question of whether Khalil and CUAD collaborated with or supported Hamas, a designated terrorist organization. But again, whatever your opinion of CUAD — and mine is quite low — I would hope that if the War on Terror years taught us anything, it’s that we should be awfully careful about an ever-expanding definition of terrorism and support for terrorism. Advocating for the same cause as Hamas, and even echoing Hamas’s language and imagery, is not the same thing as funneling them money or weapons. Is it abhorrent? Yes. Is it clear that Khalil himself even did that? As far as I can tell, no — which is why this administration is talking more about anti-Semitism than material support for terrorism in this case. And if Khalil does, in fact, pose a threat to national security, then the answer isn’t to set him loose in another country. The answer is to prove his crimes in a court of law.

Instead, it’s not even totally clear what Khalil is being accused of having done. He “led activities aligned to Hamas,” according to Secretary of State Marco Rubio. But again, being ideologically aligned with a group is not the same as providing material support to a group. And this is an extremely slippery slope. Consider Ukraine, for example. The Russian narrative is that Ukrainians fighting in their own defense are terrorists, Nazis, and extremists. We know this administration is sympathetic to the Putin narrative, and hostile to Ukraine and its leader. I think there is a world of difference between Hamas and Ukrainian freedom fighters, but that’s not really relevant. Does this administration believe there is a world of difference between Hamas and Ukrainian freedom fighters?

In fact, the real objection to Khalil seems to be that he was a member of a group that led protests at Columbia that sometimes devolved into anti-Semitism and made some Jewish students feel unsafe. Some of the Columbia protests violated university rules; others violated the law. I haven’t seen evidence that Khalil participated in any of those, but even if he did, the appropriate response would be from Columbia — not for ICE to snatch him from his house and deport him on Trump’s orders. Legal residents in the United States may not have quite as many rights as citizens, but they have rights — including free speech rights.

There is much to say about the manipulation of anti-Semitism here, and not to be too crass about it, but acting like Nazis to further the aims of America and Israel’s most far-right religious extremists may not be exactly good for the Jews — which is part of why you see so many progressive Jewish groups, as well as civil liberties groups, screaming about this arrest. Anti-Semitism is bad. But anti-Semitism is not illegal, any more than racism or sexism is illegal. (If anti-Semitism were illegal, I suspect many people affiliated with the Trump administration would be in jail).

This is a linchpin moment: Do we stand up for our principles as this administration runs roughshod over free speech and due process? Or do too many liberals pause, because Khalil and the movement he represents is politically complicated, politically inconvenient, or politically objectionable?

The first step is separating this arrest from however you feel about last year’s campus protests (again, cards on the table, my view is that protest was absolutely necessary and justified, while some of the leaders of the pro-Palestinian groups behaved abhorrently and in ways that were not necessary and not justified and badly hurt the cause of Palestinian freedom). That doesn’t matter. The whole thing about the First Amendment is it’s not “freedom for speech I like.”

What is clear is that American universities are under fire, and they are not going to do the right thing here. Columbia should have done more from the get to enforce viewpoint-neutral rules on student protests, and I wish that organizations working for a very worthy cause — the immediate end to the mass killing and immiseration of Palestinians by Israel, a ceasefire in this awful war, and eventually a Palestinian state — wouldn’t so quickly devolve into insanity. And Columbia is continuing its position of absolute chickenshit by saying virtually nothing about this arrest, and kowtowing to an administration that is very, very transparent about its intentions to scoop up its students, remove them from the country, and provide no justification other than “we don’t like them.”

There’s an odd narrative that emerged in the wake of Trump’s 2024 win that the resistance didn’t work. But that’s not true: It did work; it didn’t stop every bad Trump administration action, but it slowed, limited, and stopped a lot of them. We need to resist better and smarter this time around. But we cannot go quietly into the kind of authoritarianism that grabs US residents with loose justification and deports them because it objects to the content of their speech.

Trump has not even been in office for two months. This is him testing the waters — it is, to badly mix metaphors, an opening bid, a first step. Where do you think this is going?

xx Jill

---

This message is sponsored by ACLU Foundation

The Trump Administration is pushing a dangerous and sweeping attempt to control our bodies, our families, and our lives and a Supreme Court case this term will shape the future of transgender people’s freedom – and bodily autonomy for all. The state of Tennessee wants the Supreme Court to expand its ruling overturning Roe v. Wade to allow the state to target transgender people’s autonomy over their own bodies. Continuing down this road will hurt everyone's freedom to control their bodies and lives.

The ACLU told the court that everyone deserves the freedom to control their bodies and seek the health care they need. The government has no right to deny a transgender person the health care they need, just as they have no right telling someone if, when, or how they start a family.

Join the ACLU in calling on the Supreme Court to uphold constitutional guarantees for everyone – including trans people. Add your name here.