"THE ALLEGATION HERE IS NOT THAT HE WAS BREAKING THE LAW"

so... what is it?

“You have the right to free speech—so long as you’re not dumb enough to ACTUALLY TRY IT!”

—The Clash, “Know Your Rights”

—

“The allegation here is not that he was breaking the law,” is a thing that your government said today about a man who is being detained indefinitely 1,400 miles from his pregnant wife.

The allegation here is not that he was breaking the law said the same government which surveilled him.

The allegation here is not that he was breaking the law said the same government which arrested him.

The allegation here is not that he was breaking the law said the same government which detained him.

The allegation here is not that he was breaking the law said the same government which is now going to be asking an immigration judge to revoke his greencard.

The allegation here is not that he was breaking the law said the same government which is trying to deport him.

The allegation here is not that he was breaking the law said the same government which will permanently bar him from returning.

The allegation here is not that he was breaking the law.

It’s just one of those sentences.

We don’t have anything on paper yet, but reporting continues to suggest (and it has been all but confirmed) that Mahmoud Khalil is going to be one of the very few people in modern history subjected to deportation proceedings on the “foreign policy grounds” outlined in INA 237(a)(4)(C). This provision incorporates by reference the far more common inadmissibility grounds of INA 212(a)(3)(C), under which—okay, you know what, it’s late and I don’t have a lot of time here and there are always smarter people you can go to for the pure stuff.

I’m going to skip the detailed legal analysis for today and tell you what is going to happen next, because I haven’t seen anyone lay this out properly and honestly the whole thing is just beyond belief when you really do. ¹

Here’s exactly what will have to happen for Mahmoud Khalil to lose his residency and be deported for life:

1. The Department of Homeland Security will issue a Notice to Appear placing him in removal (deportation) proceedings. NTAs are not criminal charging documents, but allege only civil violations of the Immigration and Nationality Act. This one is expected to, at minimum, allege that he is subject to deportation because there is a “reasonable ground to believe” that his continued presence “would have potentially serious adverse foreign policy consequences for the United States.”

2. As the sole evidence for this allegation, Secretary of State Marco Rubio will issue a letter in which he explains to the immigration judge why he believes that Khalil meets this standard. The Board of Immigration Appeals has confirmed that by the terms of the statute this letter is all that he needs to present to the court, with no supporting evidence.

3. There is no “normal” version of this scenario, but by default the immigration judge has to make the finding of “potentially serious adverse foreign policy consequences” by “clear, unequivocal, and convincing evidence.” This is already a high standard, but it appears that the government is going to have to meet an even higher one.

4. Because at this point you must once again be wondering: Wasn’t this all First Amendment protected speech? What am I missing here? First: yes. I haven’t heard of Khalil engaging in speech or protest which wouldn’t be protected. But what you’re missing is the strangest part of this bizarre 1952 law which explicitly allows the Secretary of State to personally decide that he can completely override a non-citizen’s freedom of speech and deport him over things he has said if those things “compromise a compelling United States foreign policy interest.”

5. Again, that is: COMPROMISE a COMPELLING U.S. foreign policy interest. Not just have some influence or trouble it somehow, but compromise it. And not just any foreign policy interest, but one which is essential. As Rubio’s own Department of State notes, this is “a significantly higher standard” than the “have potentially serious adverse foreign policy consequences” standard generally required for a finding of ineligibility under INA 212(a)(3)(C). So unless there is something that we really don’t know about Mahmoud Khalil, the government can’t possibly meet its burden in any honest adjudication under this are-you-for-real-with-this-right-now unconstitutional statute.

6. But let’s say an immigration judge is persuaded for whatever reason that it has. Khalil has the right to appeal to the Board of Immigration Appeals, recently purged by Trump. Let’s assume they agree with the immigration judge.

7. From there, Khalil’s chances of appeal to an actual Article III federal court will vary wildly depending on where he is physically located. If he is still in Louisiana, he will be up against the hard-right (and demonstrably anti-immigrant) Fifth Circuit; if he is released pending proceedings and he is allowed to go forward in New York they will be in the much friendlier Second.²

8. And we all know where it goes from there. The Trump administration will have to persuade five justices of the Supreme Court that one Columbia University student is single-handedly compromising its foreign policy objective of supporting Israel’s right to desolate Gaza and decimate its population. (Or they could just find this shit completely unconstitutional, which is what any honest court would do.)

So that’s it, or at least a lot of it. I have much more to say about what we can learn from the first Trump administration’s attempts to designate a non-entity it called “antifa” a domestic terror organization and what this all means for the future of dissent and protest for everyone in this increasingly-less-free country, but I also need to sleep and stop some deportations in the morning.

The allegation here is not that he was breaking the law.

I know there’s a lot to watch right now, but I can’t stop thinking about this. We have in these last 72 hours been living through something which will forever be a part of the history civil rights in the United States no matter how it ends.

The allegation here is not that he was breaking the law.

If they get away with this, and they might, there’s really no other way to say this: we’re cooked. We’re done.

The allegation here is not that he was breaking the law.

Free Mahmoud Kahlil.

1. There is a good reason that the identically-worded predecessor to this statute was found unconstitutional by a federal district court and a far less-good reason that then-Third Circuit judge Samuel Alito reversed this finding on stupid procedural grounds.

2. Since both sides have the right to appeal it doesn’t really matter for the purposes of this narrative whether the government wins or not, it will still end up in the same place. I don’t actually want to believe that any immigration judge could agree that the government met its burden with this whole thing, but it’s best to prepare.