Aliens Have Due Process Rights

Someone in this government needs to read the Fifth Amendment

The federal government has enormous latitude over who it allows to stay in the United States and under what conditions. An alien—even a green card holder—can have their right to live here revoked and be deported, for example, if the Secretary of State has “reasonable ground” to believe that their activities or their mere presence would have potentially serious adverse foreign policy consequences for the United States. If Prime Minister Benjamin Netanyahu said “why are you letting that Hamasnik Mahmoud Khalil run around Columbia like that? Get him out of there!” then Marco Rubio could decide that America would face serious adverse foreign policy consequences if he didn’t deport him, reply, “trust me: he won’t be running around Columbia anymore,” and initiate proceedings to have Khalil deported.

Similarly, an alien who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization” is inadmissible to the United States under current law. Hamas has been designated a terrorist organization by the United States since 1997. (I note that, officially, the PLO is also considered a terrorist organization, but a waiver issued in 1988 has allowed for government contact.) If a determination was made that Khalil had endorsed the attacks of October 7th, or called for similar attacks, or simply voiced his support for Hamas as a legitimate resistance organization, he arguably traduced that law, and, again, the government could initiate proceedings to have him deported.

The key word, though, is “proceedings.” The Due Process clause of the fifth amendment applies to “any person,” not just to citizens. If some government official thought to himself, “this guy Khalil only got a green card because he’s married; I bet his marriage was just a sham to get a green card,” and had him arrested and deported on that basis, that would not be lawful even though you can, in fact, deport someone for having gotten a green card on the basis of a sham marriage. You have to go through a process to demonstrate that the marriage is a sham, a process that could be judicially reviewed to make sure that it was, in fact, due, and then you could order deportation.

That’s not what’s happening here. Khalil was arrested without any such process. So far as I know, his green card has not even been revoked; he was taken into custody and shipped to Louisiana pursuant to such a decision. Apparently, the ICE officers who took Khalil into custody did so despite not even knowing that he was a green card holder.

Over and over again, this administration has behaved as if “due process” were just a way to waste their time or worse, a tool for bureaucratic sabotage. It has routinely ignored established procedures for administrative lawmaking, it has claimed the right to ignore Congress (and has actually ignored it in a couple of instances), and we’re all living in dread of the day when it declares that it can flout the courts. But even if we never get to that day, the administration has abundantly demonstrating by its behavior that it believes law to be, fundamentally, a nuisance.

I think that’s the only really important issue with Khalil’s arrest, not whether speech is being inappropriately criminalized or Jewish safety is being appropriately prioritized. The aim really doesn’t matter—neither whether it is worthy nor whether this action helps achieve it—if it is being achieved unlawfully. Even discussing the merits of the aim strikes me as a distraction. That’s particularly the case when, as in virtually all of this administration’s actions, there is not even the fig leaf of an emergency to justify cutting legal corners. The emergency is simply this administration’s urgent desire to demonstrate, in every arena that it identifies, that it is not encumbered in its exercise of power to achieve its will.

All we should be discussing is whether Khalil was taken into custody according to due process of law. I want to hear a defense that it is, and nothing else, from those who have taken it upon themselves to defend the administration’s action.