I actually was a mafia and terrorism prosecutor before I started playing one on television. In that vein, with the Trump administration pursuing its worthy goal of booting alien terrorist supporters out of our country, we need to think about the First Amendment – specifically, the rights of free speech and free association.
So, at the risk of further dating myself, before we talk about Mahmoud Khalil, I want to talk to you about Tom Hagen.
Film buffs will instantly remember Hagen (portrayed by Robert Duvall) as the consigliere of the Corleone family in the iconic Godfather movies of the early seventies (adapted from Mario Puzo’s novels). In perhaps his most memorable vignette, Hagen would tell you he was a “mediator,” interceding on behalf of Don Corleone with Jack Woltz, a famous Hollywood producer.
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Remember: Hagen tries to persuade Woltz that if he doesn’t give a coveted role in a highly anticipated movie to the Don’s godson, bad things are apt to happen. And sure enough, after spurning Hagen the “mediator,” the producer soon awakens to find the severed head of his prized racehorse under his blood-soaked satin sheets. Having thus gotten his mind right, Woltz gives the godson the part.
We might euphemistically say that Hagen was there to “reason” with Woltz – to “make him an offer he can’t refuse.” In the law, however, we have a different word for it: extortion. That’s a crime, as is racketeering. In a courtroom, Tom Hagen would have no defense that he merely spoke to Woltz, that he was just enjoying his right to free expression on behalf of the Corleones with whom he was freely associating.
We know this intuitively, and it is a bedrock principle of the criminal law. The First Amendment prevents the government from criminalizing speech itself – it is not a crime to utter words. It prevents the government from criminalizing the mere gathering together of two or more people – mere association is not a crime.
Nevertheless, if a person is credibly accused of crimes like extortion, there is no legal prohibition against using speech as evidence of those crimes. And if a person is credibly accused of conspiracy, there is no legal bar against presenting the conspirators’ association with each other as evidence that they were joint participants in a criminal agreement.
Keep that in mind. We’re already hearing twaddle about the First Amendment from apologists for Khalil, the Syria-born former Columbia University student. He claims Palestinian heritage and the Trump administration is seeking to deport him over his role in campus uprisings driven by his support for Hamas – which has been formally designated a terrorist organization under U.S. law for nearly 30 years.
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.
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When he “mediated” on behalf of campus agitators – who had set up an illegal encampment blocking other students from tending to their studies and normal campus life, and who had illegally occupied and vandalized university buildings – he wasn’t engaged in political speech. He was pressuring the university to make concessions to the agitators’ pro-Hamas demands, with the understanding that if the administration did not capitulate, more and worse damage would be done on campus.
That’s not political speech. It’s extortion. American citizens who engaged in such behavior would not have a First Amendment defense. They’d likely face prosecution – and, in fact, dozens of the agitators were arrested in connection with these activities, and may still face other legal consequences.
Khalil does not present a profound constitutional controversy. His case is about the authority of the government, which is responsible for the security of its citizens, to deport aliens – even LPRs – who endanger us. That authority is etched in the Constitution, as well as the immigration and criminal laws of the United States.
Many years ago, I learned in cases involving jihadists and their supporters that they hope, once their lawyers start rambling about the glories of our Constitution (the same Constitution Hamas would destroy in a heartbeat), we’ll all check our common sense at the door. Let’s not do that.
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