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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Well, it has happened again. Another college student who supported Palestine on campus has been accosted and detained for deportation by federal agents allegedly for being "engaged in support of Hamas," but with no evidence to that effect being released or cited by administration officials.

This arrest in Somerville, Massachusetts is drawing particular outrage after it was recorded on a security camera in a video that has now gone viral on the internet. I'm sure some of you have seen it. As Trump and others crack down on protesters wearing masks to conceal their identities, the agents in the video did exactly that themselves, even though they are government officials employed by the public. The student this time is identified as a 30-year-old Fulbright scholar at Tufts University, which is in Medford, Mass. A little north of Boston.

She's a doctoral student in child study and human development named Rumeysa Ozturk. According to The Boston Globe, she was not known as an outspoken protest leader on campus. She did co-author an op-ed in the student newspaper a year ago in which she identified as a "graduate student for Palestine" and called on the school to "divest" from companies with direct or indirect ties to Israel. The Globe notes that the op-ed makes no mention of Hamas. Here is Secretary of State Marco Rubio yesterday defending the detention.

Secretary of State Marco Rubio: We gave you a visa to come and study and get a degree, not to become a social activist that tears up our university campuses. If we've given you a visa and then you decide to do that, we're going to take it away. I encourage every country to do that, by the way, because I think it's crazy to invite students into your country that are coming onto your campus and destabilizing it. We're just not going to have it.

Brian Lehrer: Secretary of State Rubio. The Massachusetts Attorney General, Andrea Campbell, had a very different reaction. She said, "Based on what we know, it is alarming that the federal administration chose to ambush and detain her, apparently targeting a law-abiding individual because of her political views. This isn't public safety. It's intimidation," from the Massachusetts Attorney General.

According to account by the DC news organization, The Hill, Ozturk is one of at least eight international students and faculty members who have now been targeted in the Trump administration's crackdown on pro-Palestinian demonstrators. What is the law that makes someone deportable based on what kind of political activity, if any? What should the standards be for students if different from people here on other types of visas?

What constitutes engaging with Hamas? Is the Trump administration trying to deport people merely for their political views? What kind of country are we becoming if they're doing that? We'll talk now with Lindsay Nash, Cardozo University law professor and co-director of their Kathryn O. Greenberg Immigration Justice Clinic. Professor Nash, thanks for joining us. Welcome to WNYC.

Professor Lindsay Nash: Thank you for having me and thank you for highlighting this arrest, this really troubling situation.

Brian Lehrer: Listeners, our phones and text message chain are open for your comments, opinions from your point of view, personal experiences or questions. You can even ask for advice if you think you might be targeted for otherwise protected political speech. 212-433-WNYC, 212-433-9692. Targeted by the government or, for that matter, targeted by some of these groups that are doxing people and publishing their names and photos. Professor Nash, we're going to play another clip of Marco Rubio shortly that raises more specific legal questions, I think, about the student and the government. In general, do people here on student visas or here as actual immigrants have the same free speech rights as American citizens?

Professor Nash: The Supreme Court has said that non-citizens have free speech rights like US citizens. It said that in a case in 1945. We have this strong Supreme Court precedent. Now, the government has tried to argue that status matters, that that case involved someone who had lawful status. Here, we're talking about someone who also had lawful status as a student here on a visa. That status was only revoked or restricted because of that person's political speech from what we can tell now. Now, this is a situation where we don't know what the government is going to be relying on. We don't know the charges yet. Until the government moved to revoke her visa, she was here on lawful status as well.

Brian Lehrer: Well, in the Rubio clip we played, he said, "We give you a visa to study, not to become a social activist and tear up or destabilize our universities." Is writing an op-ed opposing the actions of the Israeli military within any definition of tearing up our campuses?

Professor Nash: I find it very hard to understand the government's position here. I think free speech is something that is really at the core of what the First Amendment protects. I think this kind of political speech is something that is at the heart of what the First Amendment protects. It seems like this is a situation where the government is equating criticism of its foreign policy with a real foreign policy, an adverse foreign policy consequence. I think that's dangerous territory here.

Brian Lehrer: On becoming what Rubio called a social activist or coming here to be a social activist, Ozturk's activism was in response to an epochal event. We all know this. That happened to take place when she was here, no matter what anybody's point of view is on one side or another of that. She was expressing an opinion about it in a student newspaper op-ed. For you as a lawyer, is that in violation of the actual legal terms of a student visa in any way or would Rubio or the government in any way have to prove that she "came here to be a social activist" as opposed to reacted to a big event in the world that took place while she happened to be here?

Professor Nash: I'm not aware of any way that what she was doing would violate the terms of her visa. I think we don't know what the charges are that the government is going to bring, but what Secretary Rubio has said yesterday was that they determined that her alleged activities would have a "potentially serious adverse foreign policy consequence" and would compromise the compelling US foreign policy interest. That sounds like they're thinking about the same or maybe have already charged her with the same kind of charges that they initially filed against Mahmoud Khalil. It sounds like they're making that kind of argument but not offering any evidence to think that that is justified. It's not clear. Oh sorry, go ahead.

Brian Lehrer: Oh, I was just going to ask, have they offered any evidence in the Khalil case?

Professor Nash: I'm not aware of any evidence. I know they talked about his involvement in certain protests and leaflets that were disseminated at those protests. I have not heard of any connection to anything that he did. Then they subsequently added some other charges after the fact. I think that what we're seeing here is a situation that may be very much like that in some of these other arrests we've heard about where they're understanding political speech to present an adverse foreign policy consequence in a way that I think is really concerning for a lot of people here.

Brian Lehrer: Right. For you as a lawyer, have you ever heard of that before? We could go back to all kinds of moments in recent US history, the Iraq War, where there were big demonstrations that were against the US policy there. Back to the Vietnam War, there are so many other things that involve foreign policy and big protests by native-born US citizens, among others. I've never personally heard of this claim before. Do you know of any time in US history when it's been made? Do they need to prove in court somehow, in immigration court in this case, that the difference of opinion being expressed by these students or recent ex-students somehow gets in the way of the US actually having its own foreign policy?

Professor Nash: I'm not aware of any instance. With respect to your first question, I'm not aware of instances where they've used this type of charge that's essentially saying that the Secretary of State's determination, that their presence or their activities would create this adverse foreign policy consequence. I'm not aware of any instance where they've used that charge in this way. Frankly, my understanding is that there are very few instances where the government has used this charge generally.

As to what they have to prove, I think that's a little bit of an open question. The novelty of this type of charge makes it difficult to know. What we do know is that the only federal court that has really looked at this provision has found it clearly unconstitutional on a number of grounds. That was in a decision issued by President Trump's sister in 1996. What the court found was that this type of charge that essentially says that the Secretary of State's determination would render a person deportable violates their right to due process because they don't have an opportunity to show that is not justified.

It's unconstitutionally vague because there's no standards to apply. It's an unconstitutional delegation of authority that Congress has to say when someone should be deportable to the executive without any kind of standards to guide it. I think that we'll see those kinds of arguments coming up here again. Courts will have to consider whether this provision is constitutional, whether it can be applied. If so, what the government would need to show to justify it.

Brian Lehrer: Listener writes in a text, "My kid is a tough student. I think this whole thing is so distressing. If the government has charges and a person is not dangerous, why are they taking people away in the manner they are? Why not charge and go to court first? This is part of what is so scary." Can you answer that parent's question?

Professor Nash: Yes, I think that is a very good question. I think there's a big question about why they're doing this. There's no requirement that somebody be detained while their removal proceedings are ongoing. There was no apparent need here. Normally, the reasons that might justify detention have to do with a potential risk to public safety or the risk that the person won't appear in immigration court. This is a PhD student here on a Fulbright where no issue has been suggested that detention would have been justified.

ICE could have simply provided her with what's called a notice to appear, a document saying to appear in court. What happened here sounds much more like the stories I'd hear from clients who have fled an authoritarian regime than what I would expect to see here. Part of this has to do with the fact that in the immigration system, unlike in the criminal system, ICE officers can make arrests without having to ask a judge for a warrant beforehand or bring a person before a judge for a probable cause determination to see if there was probable cause for an arrest after the fact.

Those would give an opportunity for a court to step in and say and make some initial ruling about whether this arrest was justified, but we don't have that here. That's part of what's going on and I think part of why the attorneys in these cases are trying to bring these matters before courts so that courts can take a look at what's happening before it gets too far down the line.

Brian Lehrer: Listener writes, "The administration has invoked the Alien Enemies Act, so they don't have to provide evidence." Now, that was true or that's what they're claiming in the case of those Venezuelan alleged gang members who were deported to El Salvador. Are they claiming that here?

Professor Nash: They're not making the same exact type of claim that the President can order them deported without any kind of review. If they are invoking what it sounds like they might be invoking, that is to say, if they're invoking the type of charge that I was just talking about, in their view, it very much limits the extent to which immigration courts can review that determination that a person's deportable. I think this is of a piece with what they're doing in some of these other cases insofar as they're trying to use different mechanisms that allow them to deport people very quickly without courts really looking at this and looking to see what's going on and reviewing whether it complies with the law.

Brian Lehrer: On some possible parallels from history, one listener writes, "John Lennon had to promise the Nixon administration not to engage in anti-war activities to remain in the United States." Another one writes, "Wasn't Charlie Chaplin, a green card holder, refused entry back into the United States on being a communist sympathizer?" Do you know about those examples? Are they accurate?

Professor Nash: I can't speak to the facts of those particular cases, but there have been other moments where our immigration system has allowed for the targeting of people based on different viewpoints or political views. Those are really ugly moments in our history. Those are notorious moments that we would not want to repeat today. I think that is not and shouldn't be the standard for what we expect of our government now.

Brian Lehrer: A few listeners hating on Rubio in their text. One writes, "Maybe Rubio should return to Cuba if he hates free speech so much." Another one writes, "Just wait until Donald strips Marco of his birthright citizenship and sends him back to Cuba," citing Wikipedia saying, "Rubio's parents were not US citizens at the time of his birth." Those are just people's opinions about Rubio. Do you happen to know, though, offhand if that's a true fact? I'd never seen it one way or the other if he was born here to parents who are not legal immigrants.

Professor Nash: I don't happen to know that. I don't. I do think the concerns that if the government is permitted to use power in these ways and to deport people without any kind of review could be a very slippery slope. If there's no opportunity to say, "This is inappropriate. You have the wrong person. I don't fit in the criteria of people who can be deported," there are many troubling repercussions of that, including deporting people who are not deportable at all.

Brian Lehrer: Just to be clear, that listener texted that Rubio's parents were not US citizens at the time, not that they were here undocumented, just to be accurate. Rachel in Rockland County, you're on WNYC with Lindsay Nash, Cardozo University law professor, as we talk about the case of the Tufts student now arrested by masked federal agents and being locked up like Mahmoud Khalil in Louisiana, even though her peeps are in Boston. Rachel, you're on WNYC. Hello.

Rachel: Hi. Hi, Lindsay. Thank you so much. I have so many concerns about all of this. One of my concerns or one of my things I'm wondering about is when we take an inter-- so Marco Rubio is saying that these people are being detained for-- that these students should be sent back because they're here and they are spewing anti-American ideology. What he's talking about is anti-American ideology is that they are pro-Hamas or that the American ideology is anti-Hamas.

I don't think most of these students are pro-Hamas. I believe that they are pro-Palestine and pro saving the lives of all of these people who are being killed. My thought is also that when one comes to a country, people coming into this country, when I went to foreign country to study, aren't they encouraged to learn about the government of that country and to live culturally as people do in that country? In our country, we are encouraged free speech. I'm confused by that because they're getting these marauding gangs dressed in black. Terrifying. I can't imagine what that young woman went through gathering these people for free speech when I would imagine--

Brian Lehrer: Right, that's a really great point. Really interesting point you're making that if they're expected to live by the standards of the United States, the values of the United States while they're in the United States, one of the core values of the United States is the ability to protest the actions of the government. Rachel, that's a really interesting point. Maybe your reporter will put it to Marco Rubio.

On supporting Hamas, which the caller also mentions, Professor Nash, the line the government is using is supporting Hamas or, in this case, "engaged in support of Hamas." They produced no evidence of that. The op-ed Ms. Ozturk wrote in the student newspaper, which I read this morning, makes no mention of Hamas or violent or armed resistance or anything like that.

It calls for divestment from companies doing business with Israel, directly or indirectly divestment by the school. Even hypothetically, what would constitute support for Hamas under the law? When would that be illegal or a violation of someone's visa? I think this is a sensitive question, a sensitive part of this topic to raise. I think we may wind up seeing this one way or another in court.

Professor Nash: I think that this is a good question and a difficult question because often the standard for what they have to show depends on how they're charged and the procedure around it. Here, what has happened is that Secretary Rubio has revoked this visa. According to reports, Ms. Ozturk's student status has been terminated. The secretary does have significant authority to revoke a visa, not unfettered authority, but significant authority to revoke a visa. I think we need to hear what the actual basis is and what types of charges they're bringing to say that Ms. Ozturk is deportable.

If the charge that it sounds like they're bringing is what they, in fact, plan to charge, which is that her presence or her activities would have a potentially adverse foreign policy consequence, then it doesn't necessarily have to prove or it's not clear that they would have to prove that she has specifically engaged in activities associated with Hamas. It seems to, at minimum, require that there be some concrete foreign policy consequence. I think that's what the government would have to justify. I am not aware of how that could be justified in this case. It seems like we haven't heard that. Despite all of these arrests, we have not heard that connection being made, which suggests--

Brian Lehrer: Right, so they don't have to prove engagement with Hamas, but that's what one person from the government quipped briefly when asked why her. They said, "Engaged in support of Hamas." Just hypothetically, even though I understand what you're saying, they don't even have to demonstrate that. They just have to demonstrate that she would be an impediment to foreign policy in some way.

Hypothetically, what if someone genuinely believes, as some people do, that armed resistance is legitimate after decades of oppression or denial of basic rights, apartheid policies for those who see the treatment of Palestinians that way? Obviously, that's a matter of debate, but we remember the demonstration in Times Square on October 8th, 2023, day after the attack where some people were saying, "This is what decolonization looks like." That's a political opinion that supports what they see as armed resistance, what can also be labeled "terrorism," especially if it's aimed at civilians. If that is someone's belief, what's the status of that for an American born here? Is it different for anyone here as a visitor or an immigrant?

Professor Nash: I can't speak to the different ways that that would work for-- I'll start first with the way that this might come up in the immigration context and what the standard might be or how it might come into play. People can be excluded from the country. They can be considered inadmissible, so they can't come into the country for terrorism-related activities. A belief is not enough. It requires some sort of action.

Some examples might be that someone has engaged in what's defined as terrorist activity. That might be actually seizing or detaining someone. It might be soliciting funds or other things of value for that type of activity, gathering information on potential targets for terrorist activity, helping plan something. That's the type of thing we would typically expect to see for someone to be excluded or found inadmissible on the basis of terrorism-related activity.

Brian Lehrer: This, I think, gets us to the second Rubio clip, which we'll play after the break and take more calls and texts with Professor Lindsay Nash from the Cardozo Law School as we talk about the detention outside Tufts University of Rumeysa Ozturk and the ongoing day by day or every few days detention of another individual who seemed to be associated in some way or another with pro-Palestinian demonstrations and the free speech questions involved. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC as we continue to talk about the Rumeysa Ozturk case and the larger picture of those kinds of detentions of students or recent students involved in pro-Palestinian demonstrations since the Trump administration took office. Another text. "I find it so cynical that the administration is using anti-Semitism, anti-Zionism, and pro-Hamas speech as its pretext, thereby attempting to neutralize the Jewish community, which has so often defended unpopular speech." Here is the second Marco Rubio clip from yesterday. This begins with a reporter's question about the Ozturk case. Listen carefully to some of Rubio's precise language that we'll follow up on, on the other side.

Reporter: -what the specific action she took led to her visa being revoked and what was your State Department's role in that process?

Secretary of State Marco Rubio: Oh, we revoked her visa. It’s an F1 visa, I believe. We revoked it and here’s why. I’ll say it again. I’ve said it everywhere. Let me be abundantly clear, okay? If you go apply for a visa right now anywhere in the world-- Let me just send this message out. If you apply for a visa to enter the United States and be a student and you tell us that the reason why you’re coming to the United States is not just because you want to write op-eds but because you want to participate in movements that are involved in doing things like vandalizing universities, harassing students, taking over buildings, creating a ruckus, we’re not going to give you a visa.

If you lie to us and get a visa and then enter the United States and with that visa participate in that sort of activity, we’re going to take away your visa. Now, once you’ve lost your visa, you’re no longer legally in the United States. We have a right like every country in the world has a right to remove you from our country. It’s just that simple. I think it’s crazy. I think it’s stupid for any country in the world to welcome people into their country that are going to go to your universities as visitors, they’re visitors, and say, "I’m going to your universities to start a riot. I’m going to your universities to take over a library and harass people." I don’t care what movement you’re involved in.

Brian Lehrer: Secretary of State Marco Rubio. Our guest is law professor Lindsay Nash from Cardozo University. She's with their immigration justice center there. Professor Nash, the reporter asked, "What was the specific action that led to her visa being revoked?" He never answers with a specific action, but he said, participate in movements that are involved in harassing students, vandalizing buildings, et cetera. Is participating in a protest movement where some people do those things but the individual did not, they just peacefully express their point of view if that's the case here, is a student legally responsible under immigration law for what others may have done as part of the same movement? I think this is an issue in the Mahmoud Khalil case too.

Professor Nash: I think from what we know now in immigration law when you have status, there are ways you can lose status. The ways that you lose status are typically based on some kind of conduct that the person has committed, a criminal offense, some kind of fraud or misrepresentation, not that they can be held liable for the actions of others and have their status taken away from them.

I think that's important to think about here because we have only really heard, in the case of Mahmoud Khalil, the discussions of why the government has taken the action it has against him, have talked about these leaflets that it has not connected with him. I think what we're seeing is a targeting of speech based on other actions that other people may have taken without any clear connection between the two.

Brian Lehrer: Here's another phone caller. Jim in Sea Cliff, you're on WNYC. Hi, Jim.

Jim: Hi, Brian. Thank you. I think while the legal conversation is relevant and will be more relevant in the future, it's not the point today. I think the point of this administration is to send out goon squads to intimidate foreign students and to put a chilling effect over all of academia and, not only that, on American people. Today, they're saying it's about supporting Hamas. Tomorrow, it's going to be you or I complaining about Elon Musk and DOGE. Really what's emerging is a fascist regime. What I've experienced just as of late is a foreign worker who is a graduate student, fully qualified for a very technical job, refusing a job offer for fear of being detained at the US border. This is not about free speech really. It's about intimidation.

Brian Lehrer: Which is exactly what the attorney general of Massachusetts said in the quote that I read. I'm sure, Professor Nash, you would agree.

Professor Nash: Absolutely. I think it's the whole process around Ms. Ozturk's arrest, the masks, the pulling her off the street, approaching her in a black-hooded sweatshirt. It's terrifying. We have no reason to believe any of that was justified. I think that is designed to make people afraid. I think when we see these actions like this, whisking them out of the jurisdiction before they can contact their attorneys, before their attorneys can file anything, is designed to make people afraid. We've seen other examples of this from this administration. I absolutely agree.

Brian Lehrer: Also on making people afraid. Part of the coverage of this story is about pro-Israel groups that are compiling lists of students they want to target and sharing them with the government and/or the public, groups that include Canary Mission and Betar US. From what I've been reading, even the Anti-Defamation League has been critical of some of the tactics those groups used. Do you have reason to believe that they are responsible for identifying some of the eight or more people with campus ties who've been detained so far? I've read that there is a connection in this case.

Professor Nash: I've read reports about that as well. I don't have personal knowledge of their communications directly with the government or the government's decision-making with respect to those lists. I will say, this is not the first time that private citizens have tried to get the government to use its deportation authority to target people against whom they have a particular type of animus or to retaliate against people they disagree with.

We should be able to expect our government to implement the law without that animus and consistent with the laws and the Constitution. The troubling thing here is that the administration generally, even outside of the immigration realm, appears to be using its enforcement powers to do exactly that. To target based on animus, to use them based on a desire to retaliate. I think that's part of a larger picture that we're seeing in this administration.

Brian Lehrer: Can you talk about doxing? I see, for example, names and photos being released. I was looking at one of the pages by Canary Mission. Can you remind everyone what doxing is and when that is okay? I don't know exactly if there's law that applies to doxing. Well, I don't know. Is it?

Professor Nash: Doxing is sharing someone's private information online without their consent, often done with a malicious intent. We've seen that it puts their information out there so other people can target them in different ways. As for the legality of that, it's a little bit outside my wheelhouse. I'm not sure when it crosses that line as a matter of law. I will say, I think that that's something that is really troubling when people are invading people's privacy in that way without their consent and putting them at potentially very real risk.

Brian Lehrer: Yes, and that brings up the issue of masks. Another text message. Listener writes, "Is it common practice for ICE agents to wear masks when arresting people as they did with a Tufts student?" This text makes a point that I was just about to make too. "It seems a bit ironic seeing as how the government wants to curtail mask-wearing on university campuses during protests." That's true, right?

The Trump administration, the Hochul administration at the New York State level, Columbia University, and others don't want masks used to conceal protesters' identities. There are different levels of that policy, but not to be used while harassing students or committing crimes or used at all during protests. This kind of doxing is one reason that peaceful protesters want to conceal their faces, right? Do Trump and Hochul or Columbia take a stand that you know of against doxing in any way or what can you say about the masks?

Professor Nash: I don't know their stand on doxing generally. I will say, most of the time, when ICE officers make arrests, most arrests in the interior of the United States are made in conjunction with state and local institutions, criminal legal institutions. I don't believe that masks are any part of that type of enforcement. I think that it's really another example of why we should be concerned that ICE officers are coming into this with masks because it suggests that it creates this chilling effect.

I think it makes it difficult to hold officers and the government to account for what's happening here if we don't even know who is coming in to make these arrests or what they're doing. They come in without uniforms. It's a really terrifying situation. I don't believe that it's the norm. Another thing about this that's also unusual, though, is that we have the whole arrest on video. I think that should give us a good window into how immigration enforcement can be really terrifying in people's communities or whether or not it's part of this most recent rash of arrests.

Brian Lehrer: Right. We have it on video just by the randomness of a security camera happening to be placed angled right at that spot on the sidewalk where the arrest took place. We can see on the video, the federal agents who arrested Ms. Ozturk were masked even though they are public officials employed by the people of the United States. How unusual is that? When is that legal for anyone with the police?

Professor Nash: It really seems like the administration is talking out both sides of its mask and-- both sides of its mouth in terms of masks.

Brian Lehrer: No, I think you were right the first time. Talking out of both sides of its mask.

Professor Nash: Yes, [chuckles] it's true. I am not aware of the law and when officers can wear masks because, frankly, it hasn't tended to come up. We see in different situations where officers don't want to give information to the person who's being arrested or bystanders about the arrests. I think that masks only create more concerns in that way. It's both chilling for people who are around. It's scary for the person who's being arrested. It makes it difficult to get information about what's happening or to hold officers involved in these arrests to account.

Brian Lehrer: Here's a question in a text message. I thought we might get a lot of phone calls like this with people asking for advice, but we haven't. We've gotten phone calls with people weighing in or asking policy questions or talking about the big point that a lot of people are making, which is this isn't just about the law in the cases of these eight or so individuals. This is about the attempt to intimidate others from using free speech rights in this country, immigrants or not. However, this listener writes, "For people in the US on a student visa, who should we have on speed dial? Who should we call if ICE shows up to detain us? Can you, as an immigration lawyer, give people any advice?"

Professor Nash: I think that's exactly the right question to be asking in particular, this idea of speed dial, because what we're seeing is that people are being targeted and then whisked out of the jurisdiction before they have an opportunity to consult with anyone to file it in court within hours of their arrest. What I would actually say is that if I were in this situation, I would want to be talking to a lawyer before ICE comes to the door and make sure that there's a plan so that if a person is arrested, a lawyer can file in court within a few hours of that arrest if there's something flawed about the arrest or there's concerns there.

I think what we're seeing is people are being whisked away so quickly to other jurisdictions that there's not much time once a person is in contact with ICE. They should be talking to a lawyer beforehand to understand what they need to do to be able to make any claims that they have and to be able to get access to their counsel.

Brian Lehrer: Here's a Tufts grad, who's a lawyer in New York City. They say it's Callie in Brooklyn. You're on WNYC. Hello, Callie.

Callie: Hi. Thanks for having me. Yes, I'm a Tufts grad. I'm Jewish. I'm a lawyer. This just could not hit closer to home for me. I disagree with a lot of the statements that were made in a lot of the protests, but I do fundamentally believe that people in this country are protected, not just citizens, to express their opinions, especially in The Tufts Daily, which is a newspaper I wrote an op-ed in when I was 20 years old about being Jewish and about how that can be complicated at times.

I'm just wondering, where do we go from here? They've been arrested. They've been whisked out of the jurisdiction in violation of the court's order. They're being requested to be sent back to Massachusetts. What do we do when the ICE agents refuse to bring her back? What happens with that constitutional crisis? Does the judge order the marshals to put the ICE agents in jail for contempt of court? Where do we go when ICE refuses to follow orders? Obviously, Venezuelan immigrants is the same thing, yes.

Brian Lehrer: Professor Nash?

Professor Nash: I think the larger question of what we do if ICE refuses to follow a court order is a hard one and it's one that, I think, is increasingly coming up in these cases. As for these kinds of arrests, I think that we're at the early stage of the arrest in these cases. People have filed suit in court. Mr. Khalil's case is in New Jersey right now. I think attorneys are very appropriately challenging, not only these arrests but the larger policy.

I think we will start to get guidance from the courts about what the government is doing and what the limits are. I think it's hard to say what will happen in any one individual case, particularly where a person has been whisked far away from home and is in detention and far from their families and attorneys. I think that the pushback to this type of strategy is ongoing. I think we'll hear more from the courts on where the limits are. I think that should give us some guidance on what we can expect and how to protect against that for people who are in this situation.

Brian Lehrer: Callie, thank you for your call. Here's a shoe-on-the-other-foot question from a listener in a text. It says, "Let's put the shoe on the other foot for a second. When I was a Peace Corps volunteer in a small West African country, some fellow volunteers were sent home after attending protests against the country's dictator. To be clear, I oppose vehemently what is happening to these students today," the listener writes, "but this may be a useful counterpoint nonetheless."

What about some shoe-on-the-other-foot hypotheticals for-- and that was a real case apparently that the listener writes about. If it was an American in some other country getting loud about that country's foreign policy or, on the doxing, if it was somebody who was publicizing the names and photos of Klan demonstrators or something like that, would we be having the same conversation? Would you be having the same conversation?

Professor Nash: I think we know that this happens in other countries in other regimes, but I think our right to free speech is something that we have had for a long time. It's something that I think we should be very, very proud of. That's something that is special here and that's protected. That's something that's been an important part of our country for hundreds of years. I understand that some other countries do that, but I think we aspire to do better. We have done better for a long time. I think that what we're seeing here is a really troubling effort to erode those protections that we have held so dear.

Brian Lehrer: Last question and it comes from Joythi in Yonkers. You're on WNYC with Lindsay Nash from the Cardozo Law School. Hello, Joythi.

Joythi: Hi. Can you hear me?

Brian Lehrer: Yes.

Joythi: Thank you so much for doing this segment. I was wondering, both Mahmoud Khalil and the PhD student Ozturk are here legally. I was wondering what due process rights they have. Don't they have to be charged with something or how is it that they can be detained by plainclothes officers who are not identifying themselves? They haven't been charged with anything. What due process rights do they have given that they are here legally? How is it--

Brian Lehrer: Go ahead. I think you're now going to ask the question that I thought you were going to ask.

Joythi: Oh okay. [chuckles]

Brian Lehrer: Do it.

Joythi: That's what I was wondering. What due process rights do they have since they are here legally? Can they be detained without being charged with anything? Can they be taken to another state?

Brian Lehrer: Yes, and that's the one that you had told our screener that I wanted to end with. Of course, we've been talking through this whole segment about what their rights are globally to the heart of your question, Joythi, so you can summarize on that if you want, Professor Nash, as we finish up. What about this transfer to Louisiana, which is also outraging people?

In the case of Mr. Khalil, he was separated from his wife who lives here in the city and is a US citizen. Doesn't even matter that she's a US citizen, I don't think. She's his wife and she was eight months pregnant at the time of the deportation. She must be nine months pregnant now. Instead of the detention center for immigrants in New Jersey, where he was first taken, they put him in Louisiana. Now, they put this Tufts student with her people in Massachusetts in Louisiana too.

Professor Nash: Yes, so as a threshold matter, it's important to understand. Ms. Ozturk, Mr. Khalil, they have due process rights. They have the rights to the procedural protections that come with that. It means that the government has to give them meaningful notice of the charges against them. They've given that to Mr. Khalil. They later went back to amend the charge or add a charge, I think, because they had some concern with the charge, probably along the lines of what I described. That would be my guess. I don't know.

What their right to due process means is that they have an opportunity to respond to these charges and a deportation hearing. The technical term is a removal hearing before an immigration judge. They should have the opportunity to go through that process. Now, if the government is bringing these charges and saying, "You, Judge, can't look behind these charges. We get to say if this person is deportable and this person can't contest that," then that's where the due process problem that I was describing comes in.

That's where the due process problem that the court found in that 1996 case comes in. I think there's going to be some fights in court or some arguments in court about whether the process that they're being afforded actually gives them the due process rights to which they're entitled. I think the government's effort to get them out of the jurisdiction should raise some serious concerns.

I know their attorneys are making efforts to get them out of detention and to bring them back. We know that when people are forced to defend themselves far away from their family and friends and home and lawyers, that really prejudices their ability to defend themselves in court. I think you're right to be concerned about that. My hope is that courts will recognize that and be open to some of their lawyers' efforts to bring them back to their homes and their communities.

Brian Lehrer: I'll give the last word to a listener who texts, "The Peace Corps example," the shoe-on-the-other-foot example from a previous listener, "does not align with the Tufts story as a counterpoint, precisely because we are all assuming and hoping that we do not yet live in an oppressive dictatorship, yet I too was a Peace Corps volunteer in an authoritarian African country," this listener writes, "and often reflected on my gratitude that my own country was so different." Thank you for that text, listener. We'll see how long that's the case. We've been talking about the Rumeysa Ozturk case and the larger implications with Lindsay Nash, law professor at the Cardozo Law School. Thank you for joining us.

Professor Nash: Thank you.

Brian Lehrer: Brian Lehrer on WNYC. Much more to come.

 

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