What is happening to Mahmoud Khalil is chilling — and intended to chill all opposition

We know that because that's exactly the message Trump and others in his administration have sent over the past three days since Khalil's arrest.

At a few minutes past 7 p.m. on Saturday, March 8, I published an analysis of the week that was coming to a close, writing that President Donald Trump was testing out a “clearly more authoritarian path” by targeting specific people and entities by name “for unfavorable treatment simply because Trump doesn’t like them and what they stand for.“

I warned that Trump was declaring “that he has the right not only to define American values, but to define who is excluded — and then to act on it.”

Less than two hours later, the Trump administration began a chilling escalation of that, when federal agents arrested Mahmoud Khalil, a lawful permanent resident, with the intent to deport him.

As Khalil’s pending petition for a writ of habeas corpus filed in federal court in Manhattan detailed:

Khalil, who is Palestinian, had been a student at Columbia University where he was a leader in the pro-Palestinian protests on the campus. (Not likely coincidentally, Columbia University was itself one of the targets of Trump’s more authoritarian actions that I wrote about on Saturday.)

The arrest immediately raised my concerns. All that we have seen in the three days since has only further elevated my alarm about the propriety, legitimacy, legality, and constitutionality of this arrest — and its implications for the Trump administration and America’s future.

For now, at least, an order from U.S. District Judge Jesse Furman, an Obama appointee assigned the habeas petition, is in place that Khalil “shall not be removed from the United States unless and until the Court orders otherwise.“

Virtually every statement from the Trump administration has made clear that this was done because of Khalil’s speech and other First Amendment activities.

Now, before I go too deep here, I do want to make something clear: Immigration law is complex. I know just enough about immigration law through my time covering LGBTQ-related immigration issues and the Supreme Court to know that there are traps everywhere for the unwary. It is very much not set up to support someone who the U.S. government wants out of the country.

As was discussed in the day after Khalil’s arrest, for example, there is a provision in federal immigration law that gives the Secretary of State significant — though not unlimited — authority. It states: “An 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.“

But, even though there are complications and will certainly be more as we move forward, the specific responses of the administration tell me that there is more than enough happening here that we should all be alarmed by what is happening to Khalil.

First, Secretary of State Marco Rubio weighed in, stating on Sunday evening, March 9, that the U.S. government would be revoking visas and green cards of the vaguely termed “Hamas supporters.” This could mean anything and was nothing legal; it was a rhetorical flourish made to inflame.

If there were any doubt about the nature of Rubio’s statement, the Department of Homeland Security was more specific and more troubling — making clear that lines were almost certainly being crossed in justifying Khalil’s arrest.

In a statement issued a few hours later Sunday night, DHS tweeted that the arrest was made “in support of” Trump executive orders. The department also stated not that Khalil provided “material support” to Hamas — or any term known to the law — but rather that he “led activities aligned to Hamas.”

This is both vague and so overbroad that it could include virtually any activity.

If this were actually the legal standard, Khalil — or any non-citizen — would be deportable without the government even needing to claim any real connection with Hamas or any “designated terrorist organization.” The odd wording and grammatical structure — “aligned to” — reinforces that idea: The activities need not even be “aligned with” Hamas; activities being “aligned to” Hamas is enough.

This arrest, in other words, appears pretty clearly to be in conflict with the First Amendment. Steve Vladeck discussed the First Amendment questions, among other questions, over at One First earlier this week.

Another of the court filings in Khalil’s habeas case detailed those First Amendment activities:

On Monday, in contrast, Trump — with no evidence — called Khalil “a Radical Foreign Pro-Hamas Student,” while again linking the arrest to his executive orders.

Further, Trump made explicit what others had been warning over the weekend: “This is the first arrest of many to come.”

He added: “We know there are more students at Columbia and other Universities across the Country who have engaged in pro-terrorist, anti-Semitic, anti-American activity, and the Trump Administration will not tolerate it. … We will find, apprehend, and deport these terrorist sympathizers from our country — never to return again.”

Later Monday, the Education Department — now under Secretary Linda McMahon — announced that it was sending letters to 60 universities “presently under investigation for Title VI [of the Civil Rights Act of 1964] violations relating to antisemitic harassment and discrimination“ and “warning them of potential enforcement actions“ if they do not address the administration’s concerns. (The letters were announced two days before mass firings were announced at the department.)

Shortly after Trump’s post, the White House amplified it and added a graphic that, notably, reused DHS’s “aligned to” language.

That’s a lot, I know, but that’s not all that’s been going on that should raise concern.

In the midst of all this, as we now know, government agents began transferring Khalil around — with him ending up at the Central Louisiana ICE Processing Center in Jena, Louisiana. (As many have noted in the days since, such a placement would make any petition for habeas corpus filed there would have to follow the precedents of and be appeals to the extremely conservative U.S. Court of Appeals for the Fifth Circuit.)

What’s more, Khalil’s lawyers say that the timing suggests the moves were “retaliatory” and in response to the filing of the habeas petition.

“Hours after the petition challenging its detention authority was filed, however, ICE began efforts to transfer Mr. Khalil out of the region and to a Louisiana detention facility a thousand miles away, without providing him any access to his counsel, and without providing counsel of record on his pending habeas petition any advance notice of this transfer or any information with respect to any justification for his detention,” the lawyers wrote in a motion to compel his return to New York.

At the same time, and as many suspected, the Justice Department plans to file a motion by the end of the day on Wednesday to transfer the habeas petition or dismiss it “on the grounds that venue is not proper in the Southern District of New York,” as confirmed in a letter submitted to the court by Khalil’s lawyers on behalf of all parties on Tuesday.

We should get more information on their reasoning when DOJ’s motion is filed¹, but habeas petitions are generally to be brought where the person is being held. And Khalil, currently, is in Louisiana. This is, at least in part, why the questions about the timing of the transfer and the claim of retaliation are referenced in the filings by Khalil’s lawyers — and will likely be raised in opposition to DOJ’s motion.

For now, a conference before Furman is scheduled in the case for 11:30 a.m. Wednesday, which counsel agreed is needed because the parties “do not agree on” the order in which these two motions should be handled by the court.

We don’t know where this case is going — but it is a matter that we should all be watching closely and speaking up about.

Khalil has not been accused of any crime. He is a lawful permanent resident. And yet, he was taken from his pregnant wife, shuttled around the country, and is currently in detention confined by a government that wants to deport him.

As I wrote on Saturday, hours before Khalil’s arrest, Trump is now “testing out whether he can ‘get away with’ taking a clearly more authoritarian path forward.“

Trump is using Khalil — whom Trump and his allies believe they can paint unsympathetically to some — in order to establish a horrifying principle that leading opposition to Trump’s policies, even on a college campus, can get you deported.

That should frighten us all.

1. I wrote “should” because the filings thus far, aside from Furman’s one order, have not been accessible on the online docket. They are not under seal, though, and have reached the public thus far.