GREGG JARRETT: Anti-Israel agitator Mahmoud Khalil can't use the First Amendment as a shield for lawlessness

It is a popular misconception that our right to free speech in America is without limitation. 

You cannot hide behind the First Amendment and deploy it as a shield for lawlessness. Speech that is used for illegal activity is never protected. Supporting a terrorist organization or advancing that group’s propaganda is one such example that finds no shelter in free speech, particularly for non-citizens.  

That is the Trump administration’s argument in the case of Mahmoud Khalil, the Palestinian activist allegedly behind the violent protests on the campus of Columbia University. He was arrested by ICE agents last Saturday. The Department of Homeland Security intends to revoke his green card and deport him from the United States.  

COLUMBIA ANTI-ISRAEL PROTEST RINGLEADER MAHMOUD KHALIL FACES COURT HEARING ON DETENTION 

Khalil’s attorney rushed to District Judge Jesse Furman, an Obama appointee, who halted any deportation pending a hearing. On Wednesday, in court, Khalil’s attorneys were present to challenge his detention and the validity of his arrest. Government attorneys say the case belongs in front of an immigration judge.  

But the hearing lasted less than an hour as lawyers on both sides asked the judge to present updated versions of their petition and briefs in the coming days. This invites the questions, what happens next and what does the law have to say on the dispute?  

The federal government has exclusive authority over deportation matters. Green card holders like Khalil are defined under U.S. law as "aliens." They are not citizens. Their presence on our soil is a conditional privilege, not a right. 

Section 212 of the Immigration and Nationality Act (INA) forbids aliens from supporting or promoting a designated terrorist organization such as Hamas. If they do, their green cards can be revoked, and they can be expelled from our country. Importantly, they do not have to be charged with a crime to be deported.  

Does Khalil’s conduct violate the INA law and merit removal? The evidence against him is compelling.

He allegedly helped organize, and later "mediated," the violent protests at Columbia University, running illegal encampments and the occupation of a building. Those campus uprisings involved disgusting antisemitism, vandalism, destruction of property and physical attacks on Jewish students and law enforcement.  

None of that is protected speech. Nor is the spreading by an alien of printed pro-Hamas propaganda that seemed to glorify the murderous atrocities by a terrorist group on innocent Israeli civilians on October 7, 2023. 46 Americans were among the nearly 1,200 who were massacred. 

President Trump called Khalil a "radical foreign pro-Hamas" agitator. "We will find, apprehend and deport these terrorist sympathizers from our country — never to return again," he stated. "If you support terrorism, including the slaughtering of innocent men, women and children, your presence is contrary to our national and foreign policy interests and you are not welcome here."  

The aggressive enforcement by ICE conforms to Trump’s executive order to arrest and deport aliens who embrace terrorist organizations and promote jihadist terror. It is also consistent with federal law governing the exclusion of aliens who have "endorsed" or "espoused" terrorism (8 USC 1182).  

But there is another, equally important, law under which Khalil can be removed. If his "presence or activities" is believed to have "potentially serious adverse foreign policy consequences for the United States" he is deportable (8 USC 1227). Under law, the Secretary of State makes this judgment.  

Sec. Marco Rubio is on record stating that Khalil’s presence and support of Hamas is antithetical to our national security and foreign policy. In his role as a "mediator" he reportedly pressured Columbia into adopting a pro-Hamas agenda under threat of more campus violence. That is not remotely in America’s interests.       

Khalil is not without legal recourse. As a green card holder, he has certain due process rights before he can be evicted. But his attorney’s scheme to flip jurisdiction from an immigration judge with proper authority to a federal district judge under the guise of an imaginary free speech claim is a contortion of the law.  

That doesn’t mean it won’t work. For a while, anyway. Indeed, it already has. Judge Furman’s decision on Wednesday kicks the can down a rutted road of judicial review. Depending on his decision, the case may work its way through the slow grind of appellate courts and could land eventually on the docket of the U.S. Supreme Court.    

At the high court, Trump’s order to arrest and deport hostile "aliens" such as Mahmoud Khalil would likely receive a receptive audience. The Justices should debunk his specious First Amendment claims and send the case to an immigration judge for deportation proceedings. That is where it belongs.        

In the meantime, the President is determined to clamp down on colleges and universities that are all too willing to ignore or placate radical students and outside agitators who have held campuses hostage to their antisemitic tirades, harassment of Jewish students, and illegal occupations.  

Some 60 institutions of higher education may face financial penalties as Trump moves swiftly to end what he calls "illegal protests." He is right to do so. Already, he canceled $400 million in federal funding for Columbia University for its miserable failure to protect students and faculty.  

These are venues that are supposed to offer classrooms of learning safe from intimidation, threats, and acts of violence. Sadly, it seems that only the deprivation of money will motivate college and university presidents to do the right thing. 

Gregg Jarrett is a Fox News legal analyst and commentator, and formerly worked as a defense attorney and adjunct law professor. His recent book, "The Trial of the Century," about the famous "Scopes Monkey Trial" is available in bookstores nationwide or can be ordered online at the Simon & Schuster website.  Jarrett’s latest book, "The Constitution of the United States and Other Patriotic Documents," was published by Broadside Books, a division of HarperCollins on November 14, 2023.  Gregg is the author of the No. 1 New York Times best-selling book "The Russia Hoax: The Illicit Scheme to Clear Hillary Clinton and Frame Donald Trump." His follow-up book was also a New York Times bestseller, "Witch Hunt: The Story of the Greatest Mass Delusion in American Political History."