Arbitrary Arrest

 Since taking office in January, Trump has made innumerable moves to retaliate against political speech he doesn't like. These steps have ranged from barring the Associated Press from the White House press pool (all because they were unwilling to replace the Gulf of Mexico in their style guide with Trump's preferred name, "Gulf of America"), to revoking federal building access to law firms that represent Democrats, to trying to withhold Congressionally-approved funds on vaguely-defined ideological grounds (combatting "wokeness," etc.)

But this week, the administration took the repression to a new level of outright tyranny. Because this was the first time that government agents showed up to a person's home and arrested them—simply for engaging in First Amendment–protected activity. The arrest of Mahmoud Khalil—a Columbia graduate student, who played a significant role as a mediator during last year's campus protests over the war in Gaza—was transparently an effort to stifle his speech. The administration is not even trying to hide it. 

Indeed, the Constitutional violation is so glaring that even some far-right Republicans noticed it. As Ann Coulter reportedly wrote on social media this week: "unless they’ve committed a crime, isn’t this a violation of the first amendment?" 

The answer is: yes, it is. Khalil is a lawful permanent resident of the United States. Even beyond that, he is a person subject to U.S. jurisdiction. He has Constitutional rights. Entering his home, taking him into custody, detaining him, and deporting him would all constitute adverse government action—and Supreme Court case law says that the government cannot take such steps unless they are doing so for content-neutral reasons. The desire to discriminate against a disfavored viewpoint is obviously not one. 

Absent some independent statutory justification for revoking Khalil's green card, then—which the administration has not even seriously attempted to provide—the government simply has no legal authority to deport him. But that doesn't mean they won't continue to try—in the hopes that if you change the facts on the ground quickly enough, the courts will be too slow to keep up. (Fortunately, though, a federal court has already blocked his removal from the country, on habeas grounds.)

But there is another reason to worry. Even though the arrest and detention of Khalil is at odds with our country's constitutional tradition and theory—it is unfortunately not unprecedented in the darkest chapters of our history. The U.S. government has long tried to dodge the Constitution by using its immigration powers to target speech. Step one is to stigmatize the political speech you disfavor as a "foreign" ideology. Step two is target noncitizens, who have fewer legal protections, and generate a vague impression of "criminality" and "alienage" around the disfavored viewpoint. 

The goal is plainly to chill protest activity and political speech across the board—including for U.S. citizens. But by associating these protests with a disfavored noncitizen out-group, and flexing the government's immigration powers (where the executive's plenary authority is often at its maximum), you can dodge some of the Constitution's safeguards against overtly persecuting free speech. 

This was how the government suppressed the anarchist movement in the early twentieth century, for instance—as John Dos Passos memorably depicts in Manhattan Transfer. The novel contains an indelible scene in which the protagonist watches a ship-full of foreign "radicals" and so-called "undesirable aliens" being deported from New York Harbor. He hears them singing the "Internationale" as they go. The government deported his youth with them, Dos Passos writes—they deported his "twenties."

But even as the detention of Khalil evokes some of the ugliest parts of U.S. history—it also reminds us of the sorts of completely arbitrary despotisms we never thought would come to these shores. It smacks, indeed, of outright Stalinism. One is reminded of the imagery of Anna Akhmatova's poems about the Great Purges of the 1930s—the black car that pulls up at one's door, the knock that can only mean one thing, the long and fruitless search for loved ones who have been disappeared into secret prisons. 

It's not an exaggeration to compare DHS's actions to the latter. They too showed up unannounced at Khalil's home and arrested him in front of his pregnant wife—a U.S. citizen. They too hauled him into a detention site without telling his family or his lawyer where they were taking him. One is indeed reminded of Akhmatova banging on the door of the prison where her son had been disappeared—a door that, she wrote, the cold unyielding face of the Stalinist state would never open to her. 

Maybe the U.S. courts will stand up in the face of this arbitrary arrest? Maybe they will vindicate our constitutional traditions when it counts? 

I hope so; but the track record of the courts on such matters is not particularly inspiring. The federal courts allowed arbitrary arrest and even execution without trial of suspected foreign spies during World War II. In recent times, they upheld Trump's blatantly discriminatory travel ban targeting Muslim countries. Even though noncitizens ostensibly have rights under our Constitution, then—so long as they are in U.S. custody—the courts have not been particularly good at protecting them. 

One fears, then, that free speech in this case may ultimately suffer the same fate that Edgar Lee Masters depicts in his poem, "Carl Hamblin." The eponymous narrator of the poem describes how his press was destroyed, and he was himself tarred and feathered by an angry mob, simply for daring to print something in defense of the anarchists who were hanged in Chicago. His offending text, ironically, was itself a critique of the corrupt legal system that had failed to vindicate due process and civil liberties in that case. 

As a social media mob tries to hound Khalil out of the country and suppress his political speech today—just as the mobs wrecked the Spoon River Clarion in the poem—it is worth revisiting Masters's words. Justice in America, he wrote, still held the sword and scales in each hand. But the sword was now wielded to strike arbitrarily at the weak and the dispossessed. The scales weighed only the amount of gold that the rich and the powerful had tossed into their pan. 

And the bandage—the famous bandage that shields the eyes of Justice, ostensibly to guarantee fairness and impartiality—the bandage, Masters writes—was only there now in order to shield from the public's gaze the rot and corruption within...