Ideological Exclusion Again?

NEW JERSEY – A federal judge granted Mahmoud Khalil’s request for a preliminary injunction, after concluding that he would continue to suffer irreparable harm if he remains detained. This comes after the court held last week that Mr. Khalil was likely to succeed on the merits of his constitutional challenge to the government's detention and attempted deportation on foreign policy grounds. The court also ruled that it was unconstitutional to detain and seek to deport someone purely for their advocacy, here on behalf of Palestinian human rights. The government has until 9:30 a.m. on Friday to appeal the decision before Mr. Khalil must be released. “This is the news we’ve been waiting over three months for. Mahmoud must be released immediately and safely returned home to New York to be with me and our newborn baby, Deen,” said Dr. Noor Abdalla, Mahmoud Khalil’s wife. “True justice would mean Mahmoud was never taken away from us in the first place, that no Palestinian father, from New York to Gaza, would have to endure the painful separation of prison walls like Mahmoud has. I will not rest until Mahmoud is free, and hope that he can be with us to experience his first Father’s Day at home in New York with Deen in his arms.” The preliminary injunction blocks the Trump administration from using the provision of the Immigration and Nationality Act that Secretary of State Marco Rubio invoked to detain and attempt to deport Mr. Khalil, and other students and students and scholars, for their speech. This is the first federal court to rule that Mr. Khalil and other noncitizens cannot be deported based solely on the so-called “foreign policy ground” of the INA, a blow to the Trump administration’s attempt to suppress the speech of those who protest and speak out in support of Palestinian rights. The court found that “it is overwhelmingly likely that the Petitioner would not be detained based solely on the lawful-permanent-resident-application charge. Rather, the Court finds, the Petitioner’s detention almost surely flows from the charge that is based on the Secretary of State’s determination.” “We are relieved that the court documented what was obvious to the world, which is that the government's vindictive and unconstitutional arrest, detention and attempted deportation of Mahmoud for his Palestinian activism is causing him and his family agonizing personal and professional harm,” said Baher Azmy, legal director of the Center for Constitutional Rights. “We look forward to his reunion with his wife and newborn son, and for this remarkable, brilliant man to reclaim his life and his reputation.” This decision comes less than a week after the court asked for and received additional information about the irreparable harm Mr. Khalil is experiencing in ICE detention in order to rule on his outstanding request for release and the preliminary injunction. On March 8, the Trump administration and Department of Homeland Security (DHS) illegally arrested and detained Mr. Khalil in direct retaliation for his advocacy for Palestinian rights at Columbia University. Shortly after, DHS transferred him 1,300 miles away to a Louisiana detention facility — ripping him away from his wife and legal counsel. Since being unlawfully detained, Mr. Khalil has been forced to miss the birth of his first child and other irreplaceable moments in his family's life. Mr. Khalil is represented by Dratel & Lewis, the Center for Constitutional Rights, CLEAR, Van Der Hout LLP, Washington Square Legal Services, the New York Civil Liberties Union (NYCLU), the ACLU of New Jersey, the ACLU of Louisiana, and the American Civil Liberties Union (ACLU). The following are quotes from Mr. Khalil’s legal team: Brett Max Kaufman, senior counsel in the ACLU’s Center for Democracy, said, “Today’s ruling is a huge win for the Constitution and the rights of citizens and non-citizens alike. No one should be imprisoned or deported for their political beliefs, and the three months that Mahmoud has spent in detention are an affront to the freedoms that this country is supposed to stand for.” Ramzi Kassem, co-founder and director of CLEAR, added: “This vindicates what Mahmoud has maintained since day one — that the government cannot detain or deport him based on Rubio’s say-so. ICE should now do the right thing and release Mahmoud immediately so he can return to his wife, Noor, and their newborn baby boy, Deen.” Marc Van Der Hout, founding partner at Van der Hout LLP, said: “The district court soundly and clearly rejected DHS’s attempt to deport Mahmoud for speaking out about the genocide in Gaza. The three months of illegal incarceration that Mahmoud has suffered is outrageous, and ICE should immediately release him. There is absolutely no legitimate reason for his continued unjust and cruel detention.” Donna Lieberman, executive director of the New York Civil Liberties Union, said: “Today the Court clearly rejected the government’s attempts to deport Mahmoud Khalil based on Secretary Rubio’s determination. Now, after three months, there is no basis for his detention and Mr. Khalil must finally be able to go home and support his wife and newborn. Ideas are not illegal, and no administration should ever unilaterally incarcerate, suppress, or remove people for expressing opinions with which they disagree.” Amy Greer, associate at Dratel & Lewis, said: “Today, the judge found what we already knew — the Rubio determination is unconstitutional. The U.S. government cannot detain people for their protected political advocacy. Today was the first step to justice, but we will not stop fighting until Mahmoud is home with his wife and child.” The order can be viewed here. For all case materials, please see here.

Whether someone with a valid visa within the U.S. can be arrested and detained on the basis of their protected political speech and familial associations.

WASHINGTON — Today, President Trump ordered hundreds of active-duty marines to support the administration’s crack down on immigrants’ rights protestors in Los Angeles, who took to the streets following last week’s cruel ICE-led raids and the unjust arrest of SEIU president David Huerta. Hina Shamsi, director of the National Security Project at the American Civil Liberties Union, issued the following statement in response: “Every move President Trump has made since Saturday night has been escalatory and inflammatory. The idea that these Marines have anywhere near the kind of training required to police protests while respecting people’s constitutional rights would be laughable if the situation weren’t so alarming. “From the get-go, the Trump administration’s deployment of troops into the streets of California, over the governor’s objection, has raised serious constitutional concerns. This latest move only increases legal and ethical jeopardy for troops, and further endangers the rights of the people of Los Angeles. Brave Angelenos who are peacefully standing up for the rights of their immigrant neighbors deserve better, just like this country does.”

BOSTON – Today, legal organizations across the ideological spectrum urged the District of Massachusetts court to block the Trump administration’s attempted hostile ideological takeover of Harvard University. The federal government decided to withhold billions of dollars in research funding from Harvard University after the university refused to vet its students, faculty, and course offerings for “ideological diversity” and place certain departments and centers at odds with the government’s preferred viewpoint – such as the Department of Near Eastern Languages and Cultures – under a third party audit. Today, eight legal advocacy organization filed an amicus brief asking the court to hold that the administration's actions are unconstitutional, including: ACLU ACLU of Massachusetts Cato Institute Electronic Frontier Foundation Knight First Amendment Institute National Coalition Against Censorship Reporters Committee for Freedom of the Press Rutherford Institute The brief’s key arguments: “The government cannot force an ideological takeover of private institutions.” The government cannot impose a specific ideological quota or approach on private institutions. Time and again, courts have prevented the government from compelling private parties to communicate the government’s preferred views–or even its preferred approach to “viewpoint neutrality.” “The First Amendment principle of academic freedom prohibits the government from imposing ideological admissions, hiring, and programmatic requirements on colleges and universities.” The First Amendment retaliation and coercion in this case is all the more egregious because it targets an institution of higher education, whose choices about who to teach, what to teach, and who should do the teaching are all protected by the First Amendment. Amici are legal advocacy organizations representing views from across the ideological spectrum; while many times they disagree, they overlap in their identification of the constitutional and civil liberties violations apparent in the Trump administration’s actions here. “The Trump administration has violated Harvard’s First Amendment rights by forcing the school to choose between accepting a hostile ideological takeover or losing billions in federal funding,” said Vera Eidelman, senior staff attorney with the ACLU. “This ideological bullying constitutes an untenable abuse of executive power, and it isn't limited to the specific expressive choices Harvard has made. As we and our co-amici highlight, if the administration can do this to Harvard, it won't end there; it will open the floodgates to retaliation, coercion, and ideological harassment of private actors across the board. We and other legal advocacy organizations praise those who refuse to acquiesce to such illegal demands by our government." “Universities are places of free inquiry, where scholars expand their horizons, advance science and knowledge, and enrich our culture. The Trump administration wants to end all of that, and the implications are dire,” said Carol Rose, executive director at the ACLU of Massachusetts. “Only dictators and autocrats have ever sought to exert this level of government control over academic institutions. The goal is clear: suppress free speech and crush dissent. Here in Massachusetts, attacks on higher education threaten the very core of our state's identity, history, and economy. But across our commonwealth, Harvard and other educational institutions are holding firm — because they know our democracy depends on it.” “Private educational institutions need to be free to select and pursue their missions, and the First Amendment does not permit the government to force them to replace that chosen mission with someone else's notion of ideological balance,” said Walter Olson, senior fellow at Cato's Robert A. Levy Center for Constitutional Studies. “The courts have made clear that the government may not use funding leverage to coerce recipients into surrendering constitutional rights of expression. Beyond that, any federal move to define and dictate what is ideological balance in the faculty makeup of a department or among the students in a classroom would give Washington improper power to decide what viewpoints are or aren't important enough to merit representation as well as discretion to retaliate against faculty, programs and students it dislikes for ideological reasons. That this administration demanded that Harvard target its divinity school for an ideological overhaul — its divinity school! — should make clear the First Amendment dangers here.” “As the Supreme Court has observed, academic freedom is of ‘transcendent value’ to our society, of importance not just to teachers but to all of us,” said Alex Abdo, litigation director of the Knight First Amendment Institute. “The Trump administration’s attacks on universities are actually attacks on our democracy, and they should be treated as such by the courts.” “The First Amendment guarantees our freedoms to speak, believe, associate, and challenge the government; the administration’s attacks on Harvard violate each one of these constitutional promises,” said Lee Rowland, executive director of the National Coalition Against Censorship. “The administration’s assaults on disfavored universities and immigrant students engaged in protected advocacy are precisely the type of government abuse the Constitution is designed to prohibit. Our democracy depends on standing up to the bullies who would treat academic freedom as a problem -- rather than the very bedrock of American liberty.” “These actions represent a dangerous incursion by the government into First Amendment-protected speech,” said Gabe Rottman, vice president of policy at the Reporters Committee for Freedom of the Press. “If successful, they could lay the groundwork for federal interference in speech beyond just universities, including the targeting of news organizations and journalists for perceived ideological 'bias'." “This is nothing less than a political war waged on thought crimes. By punishing a private university for refusing to adopt the government’s preferred ideology, the Trump administration is turning Orwell’s 1984 into official policy,” said John W. Whitehead, president of The Rutherford Institute. “By weaponizing the federal government to silence dissent and force conformity, Trump is waging war against the Constitution, the rule of law, and anyone who dares to think independently. If the government can dictate what is taught in a private university’s classroom, it won’t stop there—it will seek to dictate what is said in the pulpit, printed in the press, and spoken in the streets. This kind of ideological coercion is the hallmark of authoritarian regimes and precisely the kind of tyranny the First Amendment was intended to prevent.”