The Khalil Case Shows the State Department’s Excess Power

Whether you believe Mahmoud Khalil deserves to be deported for antisemitic stances while a student at Columbia University or you believe he was righteously exercising his First Amendment rights, his green card revocation stinks. It is a perfect example of “we told you so” about powers granted so freely to the government, in this case by a provision of the Immigration and Nationality Act of 1952 covering deportable aliens and a similar one covering American citizens.

Donald Trump made it clear Khalil was arrested and his green card revoked because of his activism. “This is the first arrest of many to come,” wrote Trump in a Truth Social post. “We know there are more students at Columbia and other universities across the country who have engaged in pro-terrorist, anti-Semitic, anti-American activity, and the Trump Administration will not tolerate it.” The actions against Khalil are of a set; Axios reported on Secretary of State Marco Rubio’s plan to use AI to comb the social media accounts of student visa holders in a search of terrorist sympathies. The administration is determined to make an example of Columbia, announcing it was canceling $400 million in grants with the school. It has also warned 60 other colleges of possible anti-Semitism penalties.

In Khalil’s case, following a habeas corpus petition filed by his lawyers, Khalil was granted a hearing challenging his arrest. The judge did not make any immediate decisions about his detention. He did temporarily bar the government from removing Khalil from the United States.

The significant First Amendment issues aside for now (granted, a big aside), Khalil’s green card was revoked under a little-used part of immigration law. The Government of the United States can take away green cards from legal permanent residents, as well as student visas, if “the Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.” If the government feels it is against its interest for you to have a card or visa and thus the freedom to travel, to enter and depart the United States if you wish to, it will just take it away. The “or are likely to cause…” part of the law means you don’t actually need to have done anything. The government must merely think you might.

Rubio accused Khalil of participating in protests that he described as antisemitic and supportive of Hamas. Foreigners who come to the United States and do such things, he stated, will have their visas or green cards revoked and be kicked out. “This is not about free speech,” Rubio said. “This is about people that don’t have a right to be in the United States to begin with. No one has a right to a student visa. No one has a right to a green card.”

It does not stop with aliens. The Secretary of State may also order the revocation of any U.S. passport for national security reasons, like Khalil’s green card, albeit without the looming penalty of deportation. The legal authority for the U.S. Secretary of State is primarily found in 22 U.S. Code § 211a and 22 U.S. Code § 2705.

One of the most noteworthy cases of an ordered revocation based on the Secretary of State’s fiat was Phillip Agee. Agee, an ex-intelligence officer, in the 1970’s exposed CIA officers’ identities. According to the Supreme Court, “In 1974, Agee called a press conference in London to announce his ‘campaign to fight the United States CIA wherever it is operating.’ He declared his intent ‘to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating.’” Agee, by his own assertion, devoted consistent effort to that plan, and traveled extensively to other countries to carry it out.

Agee’s case prompted the Supreme Court to review State’s ability to revoke U.S. passports simply because the government doesn’t want someone to hold one for “national security” reasons. The Court upheld the government’s ability to do so. The Court stated that “the right to hold a passport is subordinate to national security and foreign policy considerations.”

That last sentence took on a chilling new meaning in the case of Anwar al-Awlaki. We learned via a Judicial Watch Freedom of Information Act request that prior to him and his 16-year-old son, both American citizens, being murdered via drone in 2011, Secretary of State Hillary Clinton secretly revoked their passports, as al-Awlaki was an Al Qaeda propagandist. The State Department tried to invite al-Awlaki into the U.S. Embassy in Yemen so they could hand him a letter announcing the revocation and so that they could encourage him to return to the U.S. to face charges. Six months later (al-Awlaki never dropped by the Embassy, by the way), the U.S. government simply killed him. Two weeks later it killed his 16-year-old son with another drone strike.

Though the exact details of these types of revocation cases are classified, they typically fall under the broader legal framework of U.S. foreign relations and counterterrorism policies. In recent years, court challenges have been brought by individuals whose passports or visas were revoked. For example, individuals who have been denied passports or had them revoked argue violations of due process or freedom of movement. Nevertheless, the courts tend to defer to the government in national security cases, allowing the executive branch wide discretion in handling these issues.

Depending on how his lawyers wish to present the case, Khalil’s revocation may end up at the Supreme Court as a First Amendment issue. It depends, like the old joke, which came first, the chicken or the egg. If the Court is willing to see the result of the revocation—the silencing of Khalil and thus denial of his free speech rights—as predominant, new free speech legal ground may be broken and the deportation stayed. But if the Court were to take the position this is just another national security case to be handled by an immigration judge and the revocation thus not reaching to offending the First Amendment (the likely outcome) Khalil will simply be deported under the sweeping, long-standing powers granted to the government to control the travel of both aliens and American citizens.

That will leave the biggest issue of the case unresolved. There are many reasons not to listen to an anti-Semite like Khalil, but few to justify silencing him with an overly-broad law that hangs on the secretary of State’s personal decree. We are not obligated to defend Khalil’s beliefs, but are required to defend his rights. The responsibility for bringing that to the fore will ultimately rest with the Supreme Court, if not on this case, then the next.