Mahmoud Khalil Invites America to Judgment

P redictably, many of the arguments made on behalf of ceasing deportation proceedings against Mahmoud Khalil — a lawful resident alien — turn on his supposed status as a political prisoner of the Trump administration. Those making this case argue that Khalil faces the imminent prospect of deportation because he dared speak on behalf of Palestinian freedom and for the Palestinian victims of Israel’s merciless bombing campaign while he was a graduate student at Columbia University. His incredibly deep legal team is now presenting a set of familiar arguments grounded in America’s commitments to free speech. However, they do so in a manner that demands those commitments be open to virtually any speech claim. They also elide the crucial distinction between citizens and non-citizens.

The government credibly believes Khalil to be a leader of pro-Hamas agitation on Columbia’s campus. At one point, the school suspended him for his activities but then reversed its decision. He was a lead negotiator for Columbia University’s Apartheid Divest (CUAD) during its various encampments and invasions of campus property. CUAD, you will recall, extolled Hamas during its protests, celebrated October 7, and declared its encampment at Columbia a “Zionist Free Zone.” Khalil has troubling ties to the organization, which released a statement that “we support liberation by any means necessary, including armed resistance.” Juden Frei.

CUAD believes that it is advancing the cause of liberation by favoring Hamas and related terror groups who wage war against Israel. The New York Times reported that on October 7, 2024, one year after the massacre of Jews in Israel, CUAD published “a newspaper with a headline that used Hamas’s name for it: ‘One Year Since Al-Aqsa Flood, Revolution Until Victory’ . . . over a picture of Hamas fighters breaching the security fence to Israel.” CUAD also wants to undermine “US imperialism” because the group sees America as Israel’s chief ally. Khalil is no victim of conscience, no martyr for free speech.

Although not yet a citizen, Khalil is a green-card holder, granting him a range of speech rights similar to those of an American citizen. Khalil’s defense consists of arguments that engage with the open society thesis and its related concepts. This view holds that, due to our near inability to discern any public truths or principles as a society, we should impose nothing and be open to almost everything. It has become a familiar orthodoxy, one held nearly uniformly by media, corporate, and academic elites.

But we also sense that its hold on the moral imaginations of American citizens is beginning to crack. Does the pursuit of truth and the unlimited freedom of speech that are part of the open society thesis mandate that Khalil cannot be deported unless we are content to violate our most sacred principles of openness? Are we content to be ruled by this doctrine? Or should we reconsider another view of the matter that thinkers like Willmoore Kendall, and John Courtney Murray articulated in the mid-20th century?

The conservative political theorist and National Review editor Willmoore Kendall posed the question of how open a society can be while still remaining cohesive. That is, Kendall stated, a political society is predicated on a set of truths that we hold, defend, embody, and teach in our lives and speech. John Courtney Murray, a theologian and Jesuit priest, stated that our Declaration of Independence announces “we hold these truths” (which he made the title of his most famous book). We must therefore believe that Truth exists and grounds the particular truths announced in our Declaration: human equality under God and the law, life, liberty, and the pursuit of happiness, as well as the capacity for self-government. This capacity for self-government even extends to the right to abolish government when it becomes destructive of these truths.

All of these, the Declaration claims, can be discovered by reason or at least can be reasonably affirmed. And these truths guided our forefathers; we agree with them as Americans, and we pledge to preserve them as our own and pass them down to our posterity. These truths, this public orthodoxy, will also need to be defended against external and internal enemies who aim to corrode them.

The American people must be able to give an account of who they are and know themselves to be a people in the fulsome sense of the term. This awareness, Kendall noted, gives rise to their sense of identity as a people, “their mission in history, and their responsibility under God for the kind of political and social order they were to create and maintain throughout history.” All questions can’t be open-ended if we are to be a constitutional, republican, self-governing people who live under the law. George F. Will once referred to “Closed Questions in the Open Society,” in an obvious nod to Kendall.

Kendall also put another chestnut in the fire. These truths of our constitutional tradition were to be carried forward in the manner announced by Publius, the collective author of The Federalist Papers: through “the deliberate sense of the community.” A self-governing people comes to its judgments through a discussion process that is as much about duties as it is about rights. Or rather, the right to speak invites the duty to exercise it within the bounds of a constitutional people and their accumulated wisdom.

We do not begin our discussion process in abject doubt or nihilistic uncertainty about the political good and the measure of laws for civic peace and unity. We start by acknowledging who we are as a people and then presenting the reasons for how we maintain, deepen, or extend our political order in the face of ever-rising challenges. We cannot be “open” to everyone and everything.

The Kendall-Murray thesis situates us on the firm terrain of philosophical and constitutional truth, giving us the confidence and courage we need to engage this high adventure of republican and law-bound government. The illusion of many of our judicial, academic, and political mandarins is that the most central questions of our constitutional order are rooted in unknowable fictions at best, which need to be informed by updated principles that confirm a certain egalitarianism informed by moral antinomianism. The logic of this position, which Kendall sensed was already becoming ascendant in the 1950s and 1960s, has evolved into a contemporary version that dismisses the Founding. Indeed, it insists that our historical existence as a nation is questionable, even loathsome, and has victimized entire groups of people. A corollary of this position is that America needs new migrations of people from outside the West to atone for its vast past sins, and we need a comprehensive guilt-ridden egalitarianism to form a new human spirit. The result is to sow pervasive doubt and guilt that can only be resolved by apologizing and kneeling before sundry anti-American ideologues.

The case of Mahmoud Khalil plays a revealing role in this process. The ready deportation of people like him cannot become regularized, normalized, and accepted, his supporters argue. It’s a position they need to prevail politically. Just ask his legal counselors, who number more than a dozen. What they face, though, beyond the office of President Trump, are the American people, who have not exhibited much in the way of public disturbance, protests, or even noticeable concern regarding Khalil’s detention by the federal government. He is now confined by ICE in Louisiana, where he awaits legal judgments on his appeals to be released from custody and to avoid deportation. “Resistance” has been limited to the usual progressive fever swamps, while the NGO-funded Left has assembled high-level professional legal counsel for Khalil. Such paltry resistance could mean many things and seems to coincide with the absence of violence and street theater that many feared would boil after Trump’s election victory. Professional anti-Americanism seems to have lost some of its appeal and obligatory character.

Several rationales help us but don’t determine why Khalil is unlikely to become a successful poster child of political prosecution. The public grew tired of the constant immigration, generally, and its unlawful character, which was a notable feature of the Biden administration. They have little patience for someone who came here on a student visa and then became a green-card holder only to engage with others in these putrid, hateful acts. We sense many Americans saying to themselves, “What kind of prospective citizen pours acid on civic peace while in a holding period before their citizenship status is granted?” These same people sense in their bones that this is someone whose conduct does not meet the requirements of citizenship, of being admitted to our civic communion.

We also know that the DEI/CRT/anti-racist blob severely overplayed its hands with many Americans across the political spectrum. While Khalil isn’t precisely in this nucleus, the anti-Jewish nature of his activities pulls the same nasty strings. Whites, Jews, America, and Israel carry the status of oppressors in the minds of DEI adherents. Such hatred is corrosive, as more and more Americans now recognize.

If Americans now desire to give richer moral content to the privilege and obligation that is citizenship, ensuring that this question isn’t decided for them by imperial legal theory, then they will need their own theory to match it. They will need a theory of deliberation, as provided by Kendall and Murray, on the truths we hold as Americans and how we must continue to uphold, renew, and apply those truths as a constitutional people. That process involves making laws and executing them according to the normative criteria of our Founding principles regarding who is and who is not suitable for self-government. We need to think carefully about the civic-moral prerequisites required of prospective citizens. In this case, those who support and give aid to America’s enemies’ ideological networks and pour annihilationist hatred on our closest allies, apart from whatever violent conduct they initiate, are not fit for American citizenship.

Secretary of State Marco Rubio expressed his judgment on the complementary logic of federal law on this question. He stated that an alien privileged to reside in the U.S., even a green-card holder, shall not be able to engage in activities that would form a legal basis to exclude the alien from entering our country in the first place. This logical symmetry of federal law, which places final resolution in the hands of the executive branch regarding the question of lawful resident aliens and citizenship, means that we are a society that makes civic judgments, not a society of open-ended abstractions. The American people, through their representatives, stand on firm ground to further tighten these rules. A free and good society cannot be “open” to everything, no matter how ugly or pernicious. So Kendall and Murray taught us 75 years ago.