The Case Against Mahmoud Khalil: Bold Legal Precedent or Executive Overreach?
Experts spell out the legalities behind the detention and threatened deportation of Columbia University pro-Palestinian activist Mahmoud Khalil
[New York] He’s a rabble-rousing supporter of Hamas, or he’s a political prisoner, a modern-day Nelson Mandela.
His arrest and planned deportation are unconstitutional, or they’re justified by a little-known law enacted in 1798.
His apprehension on the evening of Saturday, March 8 by US Immigration and Customs Enforcement (ICE) agents protects Jewish students on college campuses who have been targeted and terrorized by anti-Israel activism since October 7, 2023—or it is bound to backfire for Jews in a myriad of troubling ways.
If one thing is certain, it’s that there are wildly divergent views regarding the case of Mahmoud Khalil, the 30-year-old Syrian-born Algerian citizen of Palestinian descent and a 2024 graduate of Columbia University’s School of International and Public Affairs. Khalil was seized from the lobby of his Columbia-owned Manhattan apartment building while his eight-months-pregnant American-born wife, Noor Abdalla, recorded the event on her mobile phone, unsuccessfully attempting to get information on where the agents were taking her husband. The footage captures the arrest and apprehension of Khalil while Abdalla repeatedly tells the agents that her husband has legal counsel—indeed, she makes the recording while speaking to her lawyer in an audibly panic-stricken voice.
Even those familiar with the law only through television shows will note that there was no reading of the Miranda rights as plainclothes agents cuffed Khalil and led him to a van.
Khalil is a well-known organizer of many of the protests at Columbia University and its associated institution, Barnard College, in the wake of the October 7 attacks on Israel and the war with Hamas that followed. He is affiliated with the group Columbia University Apartheid Divest CUAD, a group espousing views that are both anti-American and anti-Israel, and was involved in last may’s encampment, which culminated in the violent takeover of Columbia’s Hamilton Hall.
He holds a green card and is a permanent legal resident of the US. Held initially at a detention center in Elizabeth, New Jersey, he was flown in the middle of the night to another center in Jena, Louisiana, about 150 miles from Baton Rouge. His whereabouts were not known for at least 36 hours. While in custody in Jena, he was denied the right to conduct private phone calls with his legal counsel.
Was Khalil’s Treatment Justified?
The manner in which these events unfolded constitute a clear violation of Khalil’s right to due process and may prove disqualifying to the federal government’s case, numerous legal pundits say. Even Alan Dershowitz, the prominent lawyer and Israel advocate, noted the probable unconstitutionality of the arrest in a recent Newsmax interview, though he opined that Khalil was guilty of “moral offenses.”
Other legal experts have pointed out that a green card does not carry the same protections as citizenship and that Khalil was seen distributing pro-Hamas literature on campus. They note that the dismissal of the case against him is not a foregone conclusion as he might properly be considered an “enemy alien” for supporting terror.
Eric M. Freedman, a professor of constitutional law at Hofstra University, said that the strategy employed in apprehending Khalil seemed to be that of “shoot first, aim later.” “Someone in Washington said, ‘Get that guy out of here,’” Freedman told The Media Line.
A retired Manhattan lawyer who asked to remain anonymous told The Media Line that authorities “skipped every possible step from a legal point of view.”
“The way [President Donald] Trump approaches matters is to rush something through to make a point, which then creates lawsuits,” she continued. “If there’s a crime, try Khalil. At this point, it appears that they did not like what he was saying and doing at Columbia, but in this country, free speech is a protected right.”
But the right to free speech may not be as simple as it appears. Michael Wildes, a high-profile immigration lawyer and mayor of Englewood, New Jersey, said that Khalil’s speech and conduct—namely, distributing Hamas literature and stopping students from going to class—might be actionable under the “fighting words” doctrine. That doctrine, established following the 1942 case of Chaplinsky v. New Hampshire, holds that certain words are not protected by the First Amendment as they “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
Until you have a US passport, your green card could be rescinded. It can be taken and challenged if you are involved in crimes of moral turpitude, especially those that are thwarting American security.
Wildes said that even legal US residents without citizenship have fewer rights than citizens. “Until you have a US passport, your green card could be rescinded,” he told The Media Line. “It can be taken and challenged if you are involved in crimes of moral turpitude, especially those that are thwarting American security.”
President Trump has invoked the Alien Enemies Act to explain Khalil’s treatment. Intended for use during wartime, the Alien Enemies Act allows the president to detain or deport natives and citizens of an enemy nation without a hearing and based only on their nationality. It has been used only three times, during times of major crisis: during the War of 1812, World War I, and World War II.
Use of the Alien Enemies Act is controversial due to the dark chapters in American history it evokes, during which numerous innocent immigrants were targeted. The act was responsible for the unjust and shameful internment of Japanese people during World War II and for detaining and persecuting immigrants from Italy, Germany and Austria-Hungary.
Deporting residents under the Alien Enemies Act could set off a slippery slope, Freedman said. He said that arresting and deporting a foreign-born person without due process, not because of violent action but because of words that “appear to be supporting terrorists” would have troubling consequences. As an example, he noted that foreign-born ultra-Orthodox Jews from sects opposed to the state of Israel could be subject to arrest and deportation under the act.
“As a matter of cultural history, which is unknown to anyone in the Trump administration, that is one of the most reviled statutes in history,” Freedman said of the Enemy Aliens Act. “It is like citing the Dred Scott decision,” he said, referring to the infamous 1857 ruling that enslaved people and their descendants were not and could never be citizens of the US.
Was Khalil’s Conduct Protected by the First Amendment?
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Nearly two weeks after Khalil’s arrest, it seems that opinions on his arrest and purported deportation of hinge on the following question: Is the American right to free speech—even offensive speech—sacrosanct and guaranteed under the First Amendment or is some speech actionable and restricted under the “fighting words” doctrine?
Thane Rosenbaum, a law professor at Touro University and author of Saving Free Speech from Itself, described the Khalil case as far more straightforward that the widespread legal hand-wringing would make it seem. Khalil “trafficked in a lot of activity that is not constitutionally protected,” Rosenbaum told The Media Line.
There is no First Amendment safeguard for ‘Globalize the Intifada.’ If you say there is, you are intellectually dishonest. It is like saying that there is a safeguard for going on campus and saying, ‘Lynch Blacks.’
“There is no First Amendment safeguard for ‘Globalize the Intifada.’ If you say there is, you are intellectually dishonest,” he said. “It is like saying that there is a safeguard for going on campus and saying, ‘Lynch Blacks.’”
Khalil’s speech amounted to support for Hamas, not criticism of Israel, Rosenbaum said. “Your organization and you yourself are handing out literature approved by Hamas. That is not criticizing Israel’s policies. Be honest,” Rosenbaum said, addressing Khalil.
By contrast, when Palestinian intellectual and activist Edward Said was a professor at Columbia, he criticized Israel but didn’t engage in behavior not protected by the Constitution, he said. “Said did not block access to Jewish students. He wrote books and lectured. I took his classes,” he said.
“If you are encouraging people to shout: ‘Go back to Poland,’ there is no protection for that,” Rosenbaum said.
In April 2024, an anti-Israel protester at Columbia was caught on camera yelling at visibly Jewish counterprotesters to “go back to Poland.” The child of Holocaust survivors from Poland, Rosenbaum said that he finds such rhetoric egregious and unacceptable.
“If the issue is, is he engaged in activities that are adversarial to American foreign policy, I have unilateral authority,” Rosenbaum said, highlighting the more limited protections guaranteed to noncitizens. “I don’t need a judge.”
For noncitizens, all “constitutional rights are provisional to a degree,” he continued.
New York Congressman Mike Lawler similarly highlighted the limits of First Amendment rights when it comes to noncitizens.
“The fact is you are not entitled to either a visa or a green card, and under the Immigration and Nationality Act, the secretary of state does have broad power when somebody is engaged in conduct that is perceived to be a threat or has a negative impact on our foreign policy,” Lawler said in an interview on Friday on CNN.
Has Khalil’s Arrest Made Jews Safer?
In the days since Khalil’s apprehension, a vocal and impassioned grassroots movement has sprung up to call for his release, with petitions, rallies, protests and op-eds aplenty. Wearing the uniform of the pro-Palestinian movement—keffiyehs and COVID-era face masks—and brandishing Palestinian flags and signs bearing the phrases “Free Mahmoud” and “Free Palestine,” the protesters look and sound almost indistinguishable from those involved in any of the anti-Israel rallies of the past 17 months.
Just a few days ago, Khalil declared himself a political prisoner and dictated a letter to his lawyers. The letter has been posted widely on social media and printed in newspapers around the world, with some comparing it to Martin Luther King Jr.’s “Letter from Birmingham Jail.”
In his blog, Between the Lines, former editor of the New York Jewish Week Gary Rosenblatt criticized the Trump administration for carrying out a strategy that may turn Khalil into a “hero-martyr.”
“I am grateful that the Trump administration has pledged to combat antisemitism and protect Jewish students on campus. But to date, it appears that choosing Khalil as the test case for squelching campus antisemitism via deportation—with promises of many more such efforts at other universities—may have been a mistake,” Rosenblatt wrote, noting that Khalil has become a symbol for the Trump administration’s attack on liberal college campuses.
Anybody who thinks that Trump has some emotional interest for Jews and Judaism is delusional. He has as much interest in Jews and Judaism as cryptocurrency. He supports whoever pays him off most recently and at the highest amount.
Freedman, the Hofstra University professor, similarly described President Trump’s affinity for combating antisemitism as driven by self-interest. “Anybody who thinks that Trump has some emotional interest for Jews and Judaism is delusional,” he said. “He has as much interest in Jews and Judaism as cryptocurrency. He supports whoever pays him off most recently and at the highest amount.”
He described the domestic political scene for American Jews post-October 7 as “a disaster.” “Any young person growing up and forming political views might conclude that Jews control Congress and the government,” he said. “The antisemitism trope is the official orthodoxy, [according to which] a powerful Jewish cabal that made this happen.”
Jews ought to recognize that strong-arm tactics like arresting Khalil are “short-sighted, disastrous, and stupid,” Freedman said.
In a provocative piece in The Forward titled “Is Mahmoud Khalil the New Emma Goldman?” Larry Cohler-Esses compared Khalil to Jewish anarchist thinker Emma Goldman, who was deported from the US in 1919 along with thousands of mostly Jewish immigrants persecuted in the First Red Scare.
The reminder of this dark portion of American history where Jews were seen as the enemy of the state provides a moment of chilling reflection, Cohler-Esses wrote.
A Constitutional Crisis?
Bad for the Jews. Clunky. Sloppy even. Heedless of due process. But is the arrest of Mahmoud Khalil a sign that we are in a constitutional crisis?
For Bruce Ackerman, a professor of law and political science at Yale University, the answer is “absolutely.”
“We are in a situation where Trump is doing a host of questionable things, and some of them are really fundamental and others are less so, even though they are still outrageous,” Ackerman told The Media Line.
Ackerman characterized the protests Khalil organized as “peaceful,” a characterization that some observers might quibble with, especially regarding the takeover of two buildings at Barnard College last month during which an employee was sent to the hospital, thousands of dollars of damage was inflicted to the college building, and students were prevented from attending class. He said that Khalil’s political perspective, including the fact that he might have been handing out literature in favor of Hamas, does not justify characterizing him as an agent of Hamas.
“There is no evidence of this,” he said. “He was simply exercising his First Amendment rights.”
This case illuminates fundamental democratic principles and protections enjoyed by American citizens, Ackerman said. “The president of the United States cannot by executive decree say that Bruce Ackerman has to leave the country and go back to Germany,” based on any support that he expresses even for America’s enemies, he said.
But Rosenbaum, who was a student of Ackerman’s when he studied law at Columbia, pushed back on this assertion. “The First Amendment has certain proscribed categories that don’t perceive safeguards, but you won’t get anyone at Columbia Law School to say that,” he said.
“Where in all of this is Lee Bollinger?” Rosenbaum asked, referring to the past president of Columbia and constitutional scholar.
A surprise development in the case took place last week when Judge Jesse Furman of New York’s Southern District— who originally blocked the deportation order on March 10 — ruled that Khalil be remanded from Louisiana to New Jersey, where it appears that the case will be tried. Some are calling for the case to be moved to New York, where Khalil and his wife live and where he was arrested.
The move to New Jersey bodes well for Khalil, Freedman said. While the press has mostly focused on the conservative nature of 5th circuit court, which includes Louisiana, the bigger problem is that the district in Louisiana to which Khalil was located had a towering backlog of immigration cases, he explained.
“He’s much better off in New Jersey,” Freedman said. “You can expect there will be a ruling from a more favorable circuit and the case will end up in the US Supreme Court.”
Freedman praised Judge Furman, characterizing his work on the case as “centrist” and noting that the ruling allows the Trump administration to save face.
What Does the Case Mean for Columbia?
Two weeks out from Khalil’s arrest, it is impossible to look at the court battle over his fate in a decontextualized manner. Instead, it must be viewed alongside the disturbing findings that are emerging about the organizing of student protests at Columbia since October 8, 2023, including news of possible ties to known terrorist organizations.
News has come out of printed material in support of terror being distributed by anti-Israel activists. A campaign has sprung up pointing the finger at Israeli activist and Columbia professor Shai Davidai for tipping off ICE agents as to Khalil’s whereabouts. The film “October 8”—which documents the infrastructure of the student pro-Palestinian movement—was released for a limited run last week.
Khalil’s arrest took place one week after President Trump began to execute the punitive measures he threatened against those universities he deemed “antisemitic” and followed on the heels of blocking $400 million in grants that were bound for Columbia. On Friday, the university released a memo detailing steps aimed at putting the school in compliance with the federal guidelines so that the monies be disbursed.
The university’s compliance with the Trump administration is a topic of much consternation and debate in the Morningside Heights community, where academics and affiliates walking their dogs often stop to express disgust at their institution caving to the demands of an antiliberal presidential administration with a 25-year-old personal grudge over an unsuccessful real estate deal involving the campus.
Others in the neighborhood, perhaps more quietly, voice hope that the move will force the university to proactively crack down on attacks against Jewish students and change the radicalized culture on campus.
