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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning again, everyone. We'll talk in detail now about the detention for deportation of recent Columbia grad school graduate Mahmoud Khalil, a leader of the campus protests there since October 7, 2023, calling for the school to divest from Israel. He was a lead negotiator with the school when the encampments were taking place last school year. As I mentioned in our previous segment, he is a green card holder, legal permanent residence.

He was entering his building where he lives with his eight-month pregnant US Citizen wife near Columbia when ICE agents detained him and put him in an immigrant detention facility, first in New Jersey and then in Louisiana to the shock of his wife who was going to visit him in Jersey. We'll focus on the legal aspects of the attempt to deport him, as well as what anyone thinks is right or wrong. The case is in court today. My guest on the legal angle is Peter Markowitz, law professor at the Cardozo Law School and co-director of the Kathryn Greenberg Immigration Justice Clinic there. Professor Markowitz, thanks for coming on for this. Welcome to WNYC.

Peter Markowitz: Thank you for having me, Brian, and thank you for shining a light on this important issue.

Brian Lehrer: Is Mahmoud Khalil accused of committing a crime?

Peter Markowitz: I'm glad you started there because the answer is no. We have to be a little careful because there's limited information in the public record so far. I'm sure we'll learn more in the days to come and maybe even in the hearing that's going on right now. From everything we know so far, it is very clear that the charges against him are civil immigration charges. That is, he's not been accused of any acts of violence, not been accused of any criminality, no incitement to violence.

It appears based on some conversation between his attorney and an ICE agent, that he may be charged as removable. That's the formal term for deportation under a very infrequently used provision that purports to give the Secretary of State broad discretion to designate anybody for deportation that they deem to have a serious adverse effect on US foreign policies.

Brian Lehrer: I think I have the quote from that provision of that law, the Immigration and Nationality Act. I'm going to read it. "An alien whose presence or activities in the United States the Secretary of State has reasonable grounds to believe would have serious adverse foreign policy consequences for the United States is deportable." What's your understanding of the origin and purpose of that provision? How do we know if it applies here?

Peter Markowitz: One of the things that's important to know about that provision, it's been in law for some time. It was recodified into law in 1996 in its current form, but it predates even that. One of the important things to know is this is a very, very rarely used provision. It is extraordinarily unusual to have the proceedings that we are seeing here. It's some evidence of the retaliatory instincts of this administration.

There was a case that is quite notable where a judge, remarkably for the current moment, the judge was President Trump's sister, had the occasion to consider this exact provision in a predecessor law and found it to be unconstitutional because it gave no notice to anybody of what they needed to do to protect themselves from deportation and no opportunity to look at evidence and rebut evidence against them. That constitutional holding was appealed eventually and the higher court didn't disagree with that assessment but did find that it had no power to opine on the constitutional question. It is a very unusual provision. It is one of questionable constitutional merit, and it is one that we're going to learn a lot more about in the days to come.

Brian Lehrer: Also, there's something else in that provision as cited on the website Zeteo. It says that people "shall not be excludable or subject to restrictions or conditions on entry into the United States because of their 'past, current or expected beliefs, statements, or associations' if such beliefs, statements, or associations would be lawful within the United States." There's a quote supposedly from that same law and that same provision which would make it seem like people are protected from viewpoint discrimination being the reason that the Secretary of State says they're standing in the way of US Foreign policy.

Peter Markowitz: Precisely. All laws written by Congress have to be consistent with the Constitution. The Constitution applies to noncitizens. It doesn't always apply in exactly the same way or to the same extent. Mr. Khalil is entitled to the most robust level of constitutional protections for noncitizens. People who, like him, have green cards, are permanent residents get the highest level. The First Amendment and the due process protections in the Constitution have been clearly held to apply. If this law were interpreted to allow, as this administration seems to think, it to pick and choose the speech that it likes and target anyone who speaks contrary to the whims of the President, that would be the clearest of violations of the First Amendment.

Brian Lehrer: The standard seems to be compromising US Foreign policy. Quoting from the news organization, The Free Press, as also cited on Zeteo, the allegation here-- This is a White House official talking to The Free Press. The allegation here is not that Khalil was breaking the law, but rather that he is a threat to the foreign policy and national security interests of the United States. It seems to me that even if that allegation is true, having beliefs or actions contrary to US Foreign policy is not the same as compromising it, meaning the US's ability to carry out its foreign policy, which is what the law states. Am I reading that wrong, or is that too fine a distinction? Maybe I've lost some of the listeners there.

Peter Markowitz: No, no. I think you are on point. I think the fact that the administration is admitting that there is no illegality here and that it is the viewpoints expressed by Mr. Khalil that make him a threat to US foreign policy is entirely inconsistent with the Constitution. This is not the type of case where somebody is alleged to have conspired with a terrorist organization, to have incited violence. None of that has been alleged here. It is simply--

Brian Lehrer: They are alleging-- I think this is important because the White House official later in that same quote said he was mobilizing support for Hamas and spreading anti-Semitism in a way that is contrary to the foreign policy of the United States. Now, I also read that Khalil denies that he was mobilizing support for Hamas or that he's a Hamas supporter. Is that going to be a main question in court today? Are they going to be trying to demonstrate either side the difference between opposing Israel's war activities in Gaza, which is not necessarily deportable by itself, organizing campus protests against that or for divestment, and supporting Hamas, which maybe is in a different category?

Peter Markowitz: I suspect that that will not be the focus of today's hearing. I think one thing is-- To be precise, as I've dug into the statements from the White House, the allegations that he supported Hamas amounted to the fact that he organized a protest where somebody else, not alleged to be in coordination with him, distributed some leaflets that were interpreted as such. The idea that somebody could be liable not only for speech but for somebody else's speech is beyond the pale.

In today's hearing, I suspect the arguments will be more constrained. In these cases, almost universally, it is the position of the government that they don't try to necessarily defend the indefensible in terms of the constitutional issues. Rather, they argue that this isn't the business of the courts, that they mouth the words foreign relations or national security, and they assert that that should be the end of the inquiry. At times the Supreme Court has held that, has held that it's not the role of the courts to step into these matters that might touch upon foreign relations and national security, even if they disagree with the executive's judgment.

The Second Circuit, as recently-- the Second Circuit is the court of appeals here in New York that has binding precedent as to the judge that is hearing this case. The Second Circuit, as recently as 2019 in a case where ICE targeted another political activist for deportation, held that courts do have power to evaluate the First Amendment implications of those types of situations.

Brian Lehrer: Listeners, we can take a few questions or comments about the detention for deportation of Columbia protest organizer Mahmoud Khalil, especially on the legal and constitutional issues here with our law professor guest Peter Markowitz from the Cardozo Law School. He's also co-director of the Kathryn Greenberg Immigration Justice Clinic there. 212-433-WNYC, 212-433-9692. Here's David in Manhattan who I think supports what the government is doing in this case. David, you're on WNYC. Thank you for calling.

David: Yes, no problem. I don't really support what they're doing. I think that there should be-- I don't know if it was right to just throw him in a cell like that. I think there should have been due process first, for sure. My big issue is the politicization of all this. Like I see Democrats coming out on the other side with very strong support for this guy. We have rallies for this guy and stuff. What I'm just disgusted about is that I'm seeing all this support for a person who on video was chanting to chop off the heads of Zionists. He was saying they were passing out leaflets supporting Yahya Sinwar and Hassan Nasrallah, who notoriously Sinwar was the guy who led the October 7th attacks.

To me, I'm just disgusted with the Democrats who are just showing all this support for somebody who really does-- I'm not going to say he supports terrorism, but he really empathizes with horrible, horrible actions. I think that they should tread more carefully when trying to align themselves with this person because I think it's alienating a lot of people.

Brian Lehrer: Did you say at the beginning of it, just so we understand the complexity of your comment, that at the same time as what you just said, that you think that what the government is doing here with Khalil is illegal?

David: I'm not a lawyer or anything, but I do think that it doesn't seem right to just throw him in a cell. I think that you should have some court hearing or something like that. I think that's a little much. Also, as a Jewish person myself, I don't like the Trump administration using Jews as a scapegoat to crack down on protests. I think that's dangerous. I think both sides are making this way too political.

I think that-- I don't know, I just think it's a dangerous game, even for the Democrats to align themselves too much with this cause because I'm a college student, and I've seen the things that these people hand out and I've seen the rallies that this guy leads himself. Frankly, what they're saying is not exactly trying to free Palestine. They really espouse the views of the most disgusting people on earth. I'm going to leave it there.

Brian Lehrer: Thank you very much for your call. We appreciate it. Peter Markowitz, first of all, there are allegations there about Mahmoud Khalil that we can't verify or refute. The caller says he was seen on video chanting something about chopping off the heads of Zionists. We don't know as we sit here, I don't think, if that's a real thing. What if it is? Would that matter to the legal case here?

Peter Markowitz: I think I, obviously, have not watched every video, and so I can't speak conclusively to what was or wasn't said. I would be relatively shocked if there was such a video. In defense of his arrest, the administration was not making that known. To my knowledge, there's no such video. I'll get to your question, but I think the question of the caller of why the outrage for this person that so many people may substantively disagree with is a really important one, and I think there are good answers to that question.

I think lots of people who substantively disagree with the viewpoint that he was taking are outraged nonetheless because they see this as part of two broader assaults on the rule of law of the Trump administration. There is a broad strategy to chill opposing speech, not just among immigrant activists, but we see that with the administration coming after law firms that represent Democrats or after law schools that teach topics that are disfavored by the president.

That type of retaliatory action for core political speech is directly at odds with the American tradition of free speech. I think that is one of the reasons why we see people across the political spectrum, whether they agree or disagree with Mr. Khalil, speaking out forcefully against what we see here. The second broader assault on the rule of law that is growing increasingly shocking to folks is what Senator Murphy from Connecticut deemed the Trump administration's new immigration policy of disappearances.

This is not the only person who has been whisked away in the middle of the night and then transferred thousands of miles away to a detention facility far away from their lawyers and family. We're seeing people whisked away beyond the jurisdiction of American courts to the naval base in Guantanamo, to internment camps that we have collaborated in setting up in Panama, and even made arrangements to hold people in jails in El Salvador. This larger phenomenon of disappearances that harkens to some of the worst dictatorships in world history is another shocking phenomenon that I think is garnering the attention of folks across the political spectrum, regardless of their views as to Palestine.

Brian Lehrer: Elizabeth in Kew Gardens, you're on WNYC. Hello, Elizabeth.

Elizabeth: Hello.

Brian Lehrer: Hello.

Elizabeth: Oh, I'm on the air. I find that the most important issue, actually, is the silence of the speech. If we're going to disappear people or arrest people for speaking their mind, that is primarily evil and totally for controlling and turning this country into a fascist state. Do not oppose the dictator.

Brian Lehrer: Elizabeth, thank you very much. How much legal basis is there for deporting legal immigrants with green cards on the basis of any kind of speech? There is a history in this country, I think, you tell me, of deporting immigrants who supported communism at a certain point in American history. They've deported people, I believe, who were seen as, or maybe convicted in a court of law of, I'm not sure, providing some support to Al Qaeda. What does the history of this country suggest where the line is?

Peter Markowitz: Sure. The most directly analogous historical incidents are of relatively notorious ilk. They're from the McCarthy era, and as you point out, they had to do with deporting people because of their membership in the Communist Party. Those cases went up to the Supreme Court during that time and were largely affirmed where the Supreme Court said that that was okay. The reasoning of those cases doesn't apply necessarily here. The court hung their hat very clearly on the fact that it viewed a central tenet of the Communist Party as seeking the violent overthrow of the United States government.

Whether that's right or wrong, in that context, the Supreme Court said membership in an organization that seeks to do so is appropriate. That stands in contrast to what we hear from the White House with him being alleged to commit no crime, no incitement to violence, and certainly no violence on his own. There are incidents in history where speech has certainly-- or association protected by the First Amendment has certainly been the basis for deportation. Even more recently, there were cases where Palestinian activists were targeted.

The Ninth Circuit Court of Appeals found those to be in violation of the Constitution. The Supreme Court agreed with the government in those cases that whether or not it was violative of the Constitution was not an issue that the courts were appropriate to hear. Again, the government's argument is primarily not to defend the constitutionality of its actions, but to argue for the limitations on the power of the courts to second-guess the executive in the realm of immigration.

Brian Lehrer: On the hypocrisy watch, a listener texts, "Didn't the Proud Boys state, or whoever it was at Charlottesville, Jews will not replace us?" Remember that chant at the infamous Charlottesville rally? "Jews will not replace us, and the government didn't do anything to those protesters then, or," the listener asks, "are the Proud Boys a very special people?" That's a good example of at least raising the question of point-of-view discrimination. You can be anti-Semitic from the right and you're not going to face the same consequences as-- That's not to say there were immigrants in that crowd. The legal question is not identical, but politically not going to face the same pushback from the same people as if you speak with alleged antisemitism from this point of view.

Peter Markowitz: That's exactly right. The Supreme Court precedent on that point is clear that the speech that is alleged to have or that seems to form the basis of the government's deportation order here is the type of speech that is most protected by the First Amendment. Political speech and viewpoint discrimination against political speech triggers the most heightened scrutiny. We would expect that to the extent a court can reach the constitutional issue here, the government will have a hard time defending a speech-based deportation in this realm.

Brian Lehrer: Mina, in Manhattan, you're on WNYC. Hello, Mina.

Mina: Oh, thank you for taking my call. I just wondered if Mr. Kahlil were not Palestinian but were, say, Ukrainian or Hungarian or South African or, for that matter, Canadian as of yesterday, would that have made a difference? That's all.

Brian Lehrer: Thank you. That's a question that's a matter of speculation. Professor Markowitz, would-- It's related to the hypocrisy text that I was reading. If they were doing the same thing based on other causes, then would the government be going after them like this?

Peter Markowitz: Absolutely. We can only speculate as to how that might have changed the motives of this government. It's not an unreasonable question to ask given the history of disparate treatment of people of color in the immigration realm. We see Black immigrants, for example, being detained at disproportionate rates and various distinctions that have no basis in law necessarily, but we see disparate impacts falling along race lines in many different immigration realms.

Brian Lehrer: Before you go, what about this act of moving him to Louisiana so far from his eight-month Pregnant US Citizen wife, when there is also a detention facility in New Jersey that they first took him to and she tried to visit him there or was planning to visit him there, then learned that he'd been moved to Louisiana. Could that be an issue in court today?

Peter Markowitz: I think that will be the central issue in court today. I think the most immediate matter before Judge Furman is whether to order the return of Mr. Khalil to the jurisdiction of the court. To the extent that there is at least an inference that the government did so to frustrate his access to counsel, his access to his family, his access to the courts, that is certainly something that the court can consider. Other courts in that context have ordered the return of immigrants to their jurisdiction.

Brian Lehrer: Last thing, what do you see as a likely timeline here after today?

Peter Markowitz: The parties have proposed to the court a timeline for next actions. I think the government has stated that it intends to make a motion to try to move this matter to a different court, one in Louisiana, and will be filing a motion along those lines. We can anticipate that the court will have to make some kind of at least interim ruling soon on whether to return him to our jurisdiction. Thereafter, we'll receive briefing from the parties on whether this case should appropriately proceed in New York or be transferred to Louisiana.

Brian Lehrer: Peter Markowitz, law professor at the Cardozo Law School and co-director of the Kathryn Greenberg Immigration Justice Clinic there. Thank you so much for joining us.

Peter Markowitz: Thank you, Brian.

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