Free Speech or Terrorism?

Like so many other readers on this site, I am caught between “both sides” of the Mahmoud Khalil issue. How a person interprets this tends to reflect their ideological leanings toward Palestine or Israel. So, if you are not someone who takes a strong position on it, you will be adrift in this battle.

But I thought I would offer two different takes from two smart lawyers. The first is Megyn Kelly, making what I think is a very persuasive argument about why it is not a speech issue:

And on the other side, Glenn Greenwald, a staunch pro-Palestine guy (that’s obvious) with this take:

From my perspective, I see it like this. On the “It violates free speech and is a dangerous lurch toward authoritarianism” side, I would offer up a comparison to the January 6th protesters. If the Democrats could have deported all of them, they would have. I’m working on a different piece right now about how they have one step left in their mass hysteria, and that’s to embrace their inner fascists.

Not only would they have deported all of them, but they’d be happy if they rotted in jail for all of eternity. They would have been fine if Trump was put in jail too. All they’ve done for ten years is find ways to police all speech, but especially Trump’s. The LAST thing they care about is free speech. It’s hilarious to watch them suddenly pretend they do. They don’t.

Since the January 6th protesters are American citizens, I do not believe they should have been called “insurrectionists” or “terrorists.” The Vice President compared them to Al Qaeda and the Japanese during WW2.

They were using January 6th, I believe, as a way to police MAGA ideology and support of Trump overall. They were smacked down by the people of the United States who voted Trump into office.

But make no mistake, the establishment government and the Left have been trying to make MAGA a designated terror group going back even before 2016. They have lied repeatedly about them, pretending they were the side that threatened violence when it has always been the Left that has, with few exceptions.

My hesitation here would be on that level: Could they use this case to police half the country should they ever get back in power?

On the other side of the issue, this isn’t really about free speech at all. It is another battle in the ongoing war between the nationalists and the Jihadists. This was Steve Bannon and Nigel Farage’s biggest concern way back when. I do not know if Bannon is still on board with this, but back in the day, there was concern about immigrants from Islamic countries entering Europe (Brexit) and here. It was, to them, an existential crisis of cultural identity and religion.

I realize I am speaking in broad strokes here, not specifics. I do know that this is still a concern with the Trump and MAGA base. It is less about Israel than it is about preventing Jihadists or Islam from taking root here. And the Left sees that as bigotry and xenophobia. That was why there was the “Muslim ban” and protests against it.

Complicating matters is the faction of MAGA that is anti-Israel, distrusting of our funding and involvement with them, and, frankly, anti-Jew overall. I am sometimes afraid to say I am half-Jewish (dad’s side) because I don’t want people attacking me for that online. It happens. It’s a small faction of people but they do exist.

So, you see, many wars are converging at once. It is not as simple as Palestine vs. Israel. It’s bigger than that.

Here is what Andrew McCarthy says to sum up the case:

In a nutshell, the defense goes like this. Khalil is a lawful permanent resident alien (LPR), a green-card holder. As a matter of law, that makes him a U.S. person whose rights approximate those of an American citizen. Ergo, he cannot lawfully be expelled from the United States for constitutionally protected conduct – his association with other pro-Hamas student agitators and his speech on their behalf as a "mediator" in interactions with Columbia’s administration. Now, there are a number of legal flaws in this defense (I’ve outlined them in this National Review essay). While the rights of LPRs are similar to those of American citizens, they are not identical. LPRs are still aliens. Federal immigration law has long provided that aliens can be deported over criminal conduct, terrorist support, and national security concerns – something that cannot be done to U.S. citizens.

But I want to take issue with the basic premise that Khalil’s conduct was nothing more than constitutionally protected speech and association for which no American would face legal consequences.

We seem to grasp that in organized crime cases. In all my years prosecuting them, I never heard a defense lawyer claim that, when the boss told the button to "whack that guy," he was simply exercising his free speech rights.

Yet, when I began doing terrorism cases after the World Trade Center was bombed in 1993, I found that jihadists would make substantially that argument – they would just emote glowingly about our society’s veneration of religious liberty and political convictions in order to obscure that they were making it.

Don’t be fooled.

Khalil is not subject to deportation because he is a Muslim or because he is deeply opposed to Israel’s existence as a Jewish state. His political speech and association with like-minded students (whether Muslims or non-Muslims) are not the point – even if he and his supporters would have you believe they’re the only point.

And from Fire:

Disrupting college classes and harassing students is not protected expression, to be sure, and Leavitt stated that Khalil organized protests that may have done so. But the administration has not detailed Khalil’s specific actions with respect to those protests, so it remains unclear whether Khalil himself violated any campus rules against discriminatory harassment. Whether any such violation justifies detention and deportation is a separate question. In either adjudication, Khalil must be afforded due process.

A judge has blocked the deportation for now, and I’m guessing it will be debated in court. Megyn Kelly and Glenn Greenwald will debate it on her show on Monday.

I tend to side more with Megyn Kelly on the issue because I trust her. She is honest. She’s not going to lie when it comes to the law. I also trust Glenn Greenwald, who often defends people he does not agree with on the grounds of free speech. So — to quote one of the greatest films ever made, No Country for Old Men:

“It’s a mess, ain’t it, Sheriff?”
”Well, if it ain’t, it’ll do ‘til the mess gets here.”

For Khalil, no publicity is bad publicity. He is becoming more famous and legendary by the day. It is in his best interest to keep this a very big story, and I guess the Democrats believe it helps them, too.

Here are some links for further reading:

Khalil Sues Columbia and Lawmakers to Keep Activists’ Names Secret [NYT]

Marco Rubio fires back at critics of Mahmoud Khalil's ICE arrest: 'This is not about free speech' [Daily Mail]