The Lawless Pit Holding Mahmoud Kahlil

Over the past few days, I like many have been expressing outrage over the arrest and detention of Mahmoud Kahlil, a lawful permanent resident of the United States, due to his involvement in pro-Palestinian protests at Columbia University. Federal agents raided his home and told him that his visa had been revoked; when informed he held a green card, they summarily informed that that had been revoked too.

I know nothing about Kahlil personally or his involvement in the protests (I've seen differing accounts of his role, but I haven't dug deeper because it honestly doesn't matter right now). And on a moral level, so much of what happened here sickens me. It sickens me that a permanent resident could be summarily snatched from his home and detained in clear retaliation for his expression. It sickens me that Jewish organizations putatively "fighting antisemitism" appeared to have played a direct role in his arrest. It sickens me that the ADL has fulsomely praised the operation, tacitly endorsing draconian anti-immigrant legislation that in a prior life it recognized as "the worst kind of legislation, discriminatory and abusive of American concepts and ideals" (I am heartened that other Jewish groups are speaking out against it). It sickens me to see Trump use the word "shalom" as a taunt. It sickens me to witness people trying to argue that this is ultimately Columbia's fault for not cracking down on the protests more aggressively, as if there is some straight line between potential underenforcment of the student codes of conduct and arbitrary arrest and deportation (news flash: university disciplinary issues -- even if you think they're mishandled -- should not be seen as deportable offenses!). 

And finally, it sickens me to see folks trying to finesse the issue by adopting a "well, let's se ee what the courts say before we rush to judgment" handwash. Partially, that's a problem because the entire seizure of Kahlil is a sterling example of the Queen of Hearts' justice: "sentence first, verdict later." If you've got Kahlil on a deportable offense, go through the legal process and prove it; don't start with the obviously speech-motivated arrest and then after the fact grope around for some figleaf of a legal justification. Everyone and their mother knows that whatever legal argument gets dredged up will be a pretext; the Trump administration is not remotely hiding the fact that it is targeting Kahlil for his speech.

But the bigger problem with waiting for the process of law to take its course is that I don't think people fully realize what a legal blackhole immigration law truly is.

I am not an immigration lawyer. But I do have some experience with immigration law, mostly during my judicial clerkship. My assessment of immigration law following that year can be summarized in two parts: (1) it was some of the most meaningful and impactful work I did, and (2) I never, ever wanted to be involved in it again. The explanation behind both halves of that equation is one and the same: immigration felt like a lawless pit. Our immigration law and doctrine is supersaturated with opportunities for governmental abuse that is largely immunized from any sort of meaningful review. To anyone with a passing familiarity with this system, it is outlandish to assert that our immigration system is too generous to migrants. Our immigration system is cruel, and arbitrary, and unfair, and in many respects essentially lawless. I was involved with it for a very limited amount of time, and to a very limited extent, and it still traumatized me in ways I continue to feel to this day.

So when I read Steve Vladeck's assessment of actual legal questions surrounding Mahmoud Kahlil's detention, I was not surprised, but I was alarmed. Vladeck does not argue that Kahlil's detention is lawful. But he does think it is not as clearly unlawful as is being asserted. The reason why, to be clear, is not that the Trump administration has some secret reasonable argument that's been occluded by the media firestorm. It's that our immigration law is so stacked with vague and abusive rules and dangerously deferential precedents that even misconduct as egregious as this might not be clearly forbidden. The lawless pit holding Mahmoud Kahlil is not something new. The Trump administration might be more brazen in exploiting these opportunities for abuse, but doctrinally speaking it had many tools lying around waiting to be picked up.

Indeed, one interesting thing about Kahlil's case is that it demonstrates a fascinating and underappreciated bivalence in the political salience of pro-Palestinian advocacy. On the one hand, it is very clear that Kahlil was targeted and made vulnerable by virtue of his pro-Palestinian speech. However, it is also clearly true that Kahlil's situation has mobilized and galvanized popular attention also by virtue of the fact that his case involves pro-Palestinian speech. Kahlil's case more clearly demonstrates both the distinct vulnerability but also the distinct power held by pro-Palestinian advocates I can remember in quite some time.

Again, the core problem of abuse in our immigration system -- the ability to arbitrarily and (functionally) lawlessly detain and deport immigrants for any reason or none at all -- is nothing new. I'm sure immigration activists could hand you hundreds or thousands of comparable stories of lawful residents snatched and detained for the most absurd or malicious of reasons. And while I have little doubt that most persons protesting on Kahlil's behalf would, if you gave them those stories, express genuine outrage over them as well, there's little doubt that the reason this abuse and this outrage captured public attention in the way that it did was because it involves an attempt to suppress pro-Palestinian speech, specifically.

This, to be clear, is not a bad thing. It is a good thing -- anything that encourages people to recognize the wild, lawless abuses latent in our immigration system generally and in the Trump administration's enforcement specifically is a good thing. But it is worth noting the more complex relationship with power that is being demonstrated here. Mahmoud Kahlil's story is about how the Trump administration feels empowered to destroy the lives of pro-Palestinian advocates by any means necessary; it also (sickeningly) is a story about how some Jewish organizations are cheering on the project. But it is also a story about how a connection to Israel/Palestine makes people care about things more often and more intensely than they often otherwise would. That is expression of power, and one that has implications that go well beyond this case.