A Tale Of Two Protesters
Peaceful protest of Israel's ethnic cleansing of Palestinians in Gaza should not be grounds for deportation when anti-Palestinian protest is tolerated.
This is a tale of two protesters.
One earned a graduate degree at Columbia University. He is facing deportation for encouraging protest by Columbia students against what the International Criminal Court has labelled a “plausible genocide” by Israel of Palestinians in Gaza.
The other is a part-time assistant professor at Columbia University Business School who opposes pro-Palestinian or is anti-Israel’s “plausible genocide” protest at Columbia. He is a former Israeli soldier who got the equivalent of a paid vacation when he was suspended for harassing Columbia students and faculty who expressed concern about Israel’s actions in Gaza.
Mahmoud Khalil
On Saturday, the U.S. Immigration and Customs Enforcement (ICE) apprehended Mahmoud Khalil, a native of Syria, at his Columbia University-owned apartment in Manhattan, NY.
A permanent legal resident of the United States, Khalid, 30, was taken to an undisclosed location. Khalil’s attorney said that ICE refused to tell Kahlil’s wife, an American citizen who is eight months pregnant, why Khalil was being detained, and where he was taken.
It turns out that Khalil was initially taken to an ICE detention center in New Jersey, but then moved to a jail in Louisiana. It is speculated that ICE went forum shopping, or searching for a jurisdiction with a likelihood of finding sympathetic federal judges.
A federal judge in Manhattan on Monday ordered the government not to deport Khalil, while the judge reviewed a petition challenging the legality of Kahlil’s detention. Khalil’s lawyers also filed a motion on Monday asking the judge to compel the federal government to transfer him back to New York.
Shai Dadidai
The Trump administration maintains it is a deportable offense to protest Israel’s aggressions in the Mideast, but it is not a deportable offense to protest those who advocate for the rights of Palestinians in Gaza.
Consider that last year Columbia temporarily suspended Shai Davidai, an assistant business school professor, who “repeatedly harassed and intimidated University employees in violation of University policy.” Davidai, who is in his early 40s, is an Israeli who served in the Israeli Defense Forces. He led the protest against students and faculty deemed pro-Palestinians at Columbia.
Davidai also was the subject of numerous complaints by Columbia students, who said Davidai doxxed them on social media. A petition to terminate Davidai’s employment garnered thousands of signatures. The Columbia chapter of Jewish Voice for Peace condemned Davidai’s actions.
But Davidai is not under threat of deportation. Indeed, his temporary suspension didn’t affect his compensation or status as a professor. Davidai has publicly called for the deportation of Khalil.
Hamas ‘Aligned’
Tricia McLaughlin, a spokesperson for the Department of Homeland Security, said ICE targeted Khalil because he “led activities aligned to Hamas, a designated terrorist organization.”
But what does “aligned to Hamas” mean?
Khalil served as lead negotiator for a student protest group, Columbia University Apartheid Divest. He spoke at rallies. Since Khalid is not facing criminal charges, it is fair to assume he did nothing illegal.
Moreover, Khalil’s views appear to align with those of most Americans.
A recent Gallup poll found that more than half of Americans do not sympathize with Israel, which is the lowest in 25 years of Gallup’s annual tracking of this measure on its World Affairs survey. At the same time, 33% of U.S. adults say they sympathize with the Palestinians, which was up six percentage points from last year.
Are the majority of Americans who don’t support Israel aligned with Hamas? Surely not.
Viewpoint Discrimination
There are many legal issues of concern in Khalil’s case, but one seems particularly obvious.
The U.S. government is engaging in viewpoint discrimination that is subject to challenge under the First Amendment of the U.S. Constitution. Can the government adopt a position that pro-Palestinian protest on a college campus is a deportable offense, while other types of protest are not, including protest against campus pro-Palestinian protesters?
Content-based regulation of speech generally is subject to strict scrutiny under the First Amendment and is presumptively unconstitutional. There are some limited exceptions but, as of this writing, no facts indicate the exceptions apply in Khalil’s case. (See Chaplinsky v. New Hampshire (1942)).
A green card holder like Khalil has the same right to free speech under the First Amendment as a U.S. citizen. The Constitution states the government must refrain from restricting the rights of “the people” to freedom of assembly and petition of grievances.
According to published reports, Rubio is relying upon a provision of the Immigration and Nationality Act that states 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.”
This might be a tough sell, especially if Khalil’s case is returned to Manhattan. Khalil’s attorneys will argue that the Trump administration merely disagrees with Khalil’s speech, which is protected under the First Amendment.
More to come
Trump assured his followers Monday that Khalil’s deportation is “the first arrest of many to come.” He said “there are more students at Columbia… who have engaged in pro-terrorist, anti-Semitic, anti-American activity, and the Trump Administration will not tolerate it.”
Secretary of State Marco Rubio said, “We will be revoking the visas and/or green cards of Hamas supporters in America so they can be deported.”
Last week, Trump cancelled $400 million of federal grants and contracts with Columbia “due to the school’s continued inaction in the face of persistent harassment of Jewish students.” He contends, without being specific, that Jewish students face “relentless violence, intimidation and anti-Semitic harassment on their campuses.”
There is scant, if any, evidence that Jewish students are, in fact, suffering relentless anti-Semitic harassment.
Meanwhile, the situation in Gaza grows more dire every day.
Israel is currently blocking humanitarian aid to Gaza, and has cut off electricity there. The Geneva Convention requires an occupying power to ensure adequate provision of food, medical supplies, and “other supplies essential to the survival of the civilian population of an occupied territory.” Amnesty International says Israel is engaged in the collective punishment of Gaza’s civilian population, constituting a war crime and a genocide.
Israel says it is creating conditions that will force Hamas to release all remaining hostages taken when Hamas invaded Israel on Oct. 7, 2023.
The Lancet, a British medical journal, reports that “conservatively” the death toll in Gaza could be 186,000 people or more.