The government should release Mahmoud Khalil.

There, I said it. Don’t misunderstand me. I think he’s a terrible person with terrible views. I think that the government should not admit aliens with his views into the United States, and I think that Columbia should not have tolerated him and people like him. Our universities should be places for teaching, for learning, for the free exchange of ideas, for preserving old knowledge and creating new knowledge. They should not be places for hateful ideology, for intimidation, for depriving students of their civil right to go to the library or to learn in class on the basis of race, religion, or national origin, or for erstaz Maoism. It’s okay to debate any idea on a university campus. But as the president of Barnard College has recently emphasized, “When rules are broken, when there is no remorse, no reflection, and no willingness to change,” colleges and universities need to act.

But if news reports are accurate, it seems that Khalil is a legal permanent resident married to an American citizen who has not been charged with any crime. Government agents came to his apartment building, arrested him, and told him that his green card was being revoked, even before he had had any sort of hearing. They transported him to Louisiana to be detained there. As far as I know, the government hasn’t made its case in court yet, but according to the New York Times, people “with knowledge of the matter” say that the basis of the government’s action was a provision of the Immigration and Nationality Act that gives the Secretary of State the power to make deportable any “alien whose presence or activities in the United States” he has “reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States.”

The statute in question seems to have been cited only very rarely. In the 1990s, the government sought to deport a Jordanian under the statute. Here were the facts:

These materials indicate that the respondent was indicted in Jordan of conspiracy with the intention of committing terrorist acts. The indictment describes a deliberately unnamed organization in Jordan established for the purpose of fighting tyrant Arab rulers, resisting the “peace process,” combating vice, and fighting Jews and Americans. This documentation alleges that the organization collected arms and explosives and attempted a number of bombings in cinemas in Jordan, and also a supermarket there, in January 1994. The respondent’s alleged role was training one of the organization’s founders at a training camp in the Philippines and agreeing to finance the organization after a visit to Jordan to assess the organization’s capabilities in early 1994. As a result of the legal proceeding in Jordan, the respondent was evidently sentenced to death in absentia for his role in the terrorist attacks.

In re Khalifah, 21 I. & N. Dec. 107, 108-09 (B.I.A. 1995).

The government also sought to deport a Mexican former government official under the statute who was wanted in Mexico. The government asserted that failure to return him to Mexico:

would jeopardize our ability to work with Mexico on law enforcement matters. It might also cast a potentially chilling effect on other issues our two governments are addressing. … Should the U.S. Government not return Mr. Ruiz Massieu to Mexico, our support of such reforms [of the Mexican judicial system] would be seen as hollow and self-serving and would be< a major setback for President Zedillo and our combined efforts to chart a new and effective course of U.S.-Mexican relations.

In re Ruiz-Massieu, 22 I. & N. Dec. 833, 834 (B.I.A. 1999).

The only court decision I can find on the statute, which involved the Mexican former official, struck it down as unconstitutional, though the appellate court reversed on the grounds that the petitioner had not exhausted his administrative remedies before pursuing his claim in court. Massieu v. Reno, 915 F. Supp. 681 (D.N.J.), rev’d on other grounds, 91 F.3d 416 (3d Cir. 1996).

Can you find cases that arguably support what the government has done here? I am not sure you can find cases that support “revoking a green card” without any hearing, which is what the agents said they were doing when they arrested Khalil (though the government probably will say that that was loose talk and that in fact Khalil is being detained pending a hearing on whether he is deportable). We can’t live in a country where the government can simply arrest and deport people who are entitled to stay here permanently, just on a government official’s say-so. That’s mainly why I say that the government should free Khalil. It was wrong to arrest him and detain him without a prior hearing, in the circumstances.

The substantive issue is not quite so simple. Yes, you can find cases that could be read to support the government’s view. the leading case is Carlson v. Landon, 342 U.S. 524 (1952), a “Red Scare” case holding that the government had the power to detain aliens who were members of the Communist Party without bail because it had the power to deport them, and the one power implied the other, without any showing of “specific acts of sabotage or incitement to subversive action.” In other words, membership in the Communist Party was enough. Later, in Reno v. American-Arab Anti-discrimination Committee, 525 U.S. 471 (1999), the court held that the federal courts lacked jurisdiction to hear a challenge to provisions of the immigration law where the government sought to deport members of the Popular Front for the Liberation of Palestine. But while Khalil’s group, CUAD, is a malevolent force that has done great harm to Columbia and to the Jewish and Gentile students who just want to go to class, it doesn’t really make sense to say that bringing an American campus to a standstill while cosplaying as revolutionaries and offering a cut-rate reenactment of the Cultural Revolution could have “serious adverse foreign policy consequences” for the United States. It certainly has serious adverse consequences for the health of our universities and the health of our society, but the statute is not about deportation of socially undesirable people like Mahmoud Khalil. And being a member of CUAD, a group that regularly proclaims reprehensible views about Hamas and its barbarity, is not the same as being a member of Hamas or doing what Hamas has done. Anyway, if the government’s assertion of power rests on a Red Scare precedent, that’s not great.

We also need to consider the political context. Anyone who thinks that the Trump administration plans to draw the line at deporting unsympathetic terrorist sympathizers like Khalil has not been listening to what the President has been saying since the campaign. That is why it’s important not to wait for a more sympathetic case before taking a position.

One of the first questions that is on every Jewish American’s mind in cases like this is, “is it good for the Jews?” Unfortunately, we have had to get used to being pawns in other peoples’ political maneuvers and to dealing with the consequences of decisions we didn’t make. One thing I am pretty sure of is that there is no outcome to the Khalil affair that is good for the Jews. It is bad for the Jews if he remains in the country, because he is an enemy of the Jews who stirs up antisemitism. It is bad for the Jews if he is deported, supposedly on our behalf, or if the government ends up destroying our great universities, supposedly on our behalf, because then we become associated with a government that is disregarding law and tradition and doing things that hurt the country and because there is some risk that when political winds change, we ourselves will be direct victims of the kind of government overreach that has swept up Khalil. So even if we wanted to look at this case through the lens of what is good for the Jews, the answer is that nothing about it is good for us.