Our Foreign Policy Interest in Stopping Lawless Campus-Protest Mayhem

There are a number of angles to the Mahmoud Khalil case, in which the Trump administration is trying to deport a green card holder for his involvement in pro-Hamas agitation at Columbia. This can be a murky gray area of the law, falling as it does at the intersection of free speech and the nearly absolute authority of Congress to exclude or expel foreigners from the country. Much will depend on the particular facts of how far Khalil’s conduct can be said to have departed from mere expression of opinion to the facilitation of illegal activity and/or Hamas fundraising and recruitment. Andy McCarthy has compared Khalil’s apparent role as negotiator or mediator between the law-breaking demonstrators and Columbia’s administration to the role of a mob consigliere in delivering threats — which can look like peaceful speech, but is backed by the unsubtle threat of violence.

As Andy has detailed, in all likelihood, Khalil will be deported if the government can meet the conditions for deportation in the statute, and not if it doesn’t; it’s far less likely, at least as a legal matter, that this ends with the courts concluding that Congress has authorized the deportation but that it nonetheless violates the Constitution. If the government cannot produce evidence that Khalil has met one of the specific statutory definitions of proscribed conduct (such as providing material support to a designated terrorist organization or being “a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign”), the strongest ground may be a provision of the statute allowing for the exclusion of “an alien whose entry or proposed 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.” There’s a procedural wrinkle: if Marco Rubio makes such a determination about Khalil, he “must notify on a timely basis the chairmen of the Committees on the Judiciary and Foreign Affairs of the House of Representatives and of the Committees on the Judiciary and Foreign Relations of the Senate of the identity of the alien and the reasons for the determination.” It does not appear that he has yet done so, but “timely” does not appear to be explicitly defined in the statute (I confess I have not checked to see how much time Rubio has).

About the Author

Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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There are a number of angles to the Mahmoud Khalil case, in which the Trump administration is trying to deport a green card holder for his involvement in pro-Hamas agitation at Columbia. This can be a murky gray area of the law, falling as it does at the intersection of free speech and the nearly absolute authority of Congress to exclude or expel foreigners from the country. Much will depend on the particular facts of how far Khalil’s conduct can be said to have departed from mere expression of opinion to the facilitation of illegal activity and/or Hamas fundraising and recruitment. Andy McCarthy has compared Khalil’s apparent role as negotiator or mediator between the law-breaking demonstrators and Columbia’s administration to the role of a mob consigliere in delivering threats — which can look like peaceful speech, but is backed by the unsubtle threat of violence.

As Andy has detailed, in all likelihood, Khalil will be deported if the government can meet the conditions for deportation in the statute, and not if it doesn’t; it’s far less likely, at least as a legal matter, that this ends with the courts concluding that Congress has authorized the deportation but that it nonetheless violates the Constitution. If the government cannot produce evidence that Khalil has met one of the specific statutory definitions of proscribed conduct (such as providing material support to a designated terrorist organization or being “a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign”), the strongest ground may be a provision of the statute allowing for the exclusion of “an alien whose entry or proposed 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.” There’s a procedural wrinkle: if Marco Rubio makes such a determination about Khalil, he “must notify on a timely basis the chairmen of the Committees on the Judiciary and Foreign Affairs of the House of Representatives and of the Committees on the Judiciary and Foreign Relations of the Senate of the identity of the alien and the reasons for the determination.” It does not appear that he has yet done so, but “timely” does not appear to be explicitly defined in the statute (I confess I have not checked to see how much time Rubio has).