Land of the Unfree?

These include last month’s abduction and deportation of more than 200 alleged gang members to El Salvador’s dystopian prison camps, despite the fact that many of those deportees have no criminal record and some have already proven to be cases of mistaken identity. The deeply irregular removals, in which people were given no notice of where they were being sent, nor opportunity to file habeas corpus challenges, led Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit to observe last Monday that ​“Nazis got better treatment under the Alien Enemies Act” — the 1798 law Trump’s administration used as legal model. 

We can also consider what journalist M. Gessen aptly termed the ​“denationalization” of transgender citizens — the refusal to issue passports with the ​“X” gender marker or to recognize individuals’ post-transition gender identity, even if legally changed — sending the message that ​“trans people are a threat to the nation.” 

The Trump administration is taking advantage of legal provisions that have long facilitated the persecution of foreign nationals, including permanent residents, for their political speech. But it’s also signaling its intent to ignore legal challenges to these actions, leveraging the ​“plenary powers doctrine” — the disputed but widespread belief that executive immigration policy is largely immune to judicial oversight — to stake a claim to unchecked supremacy. The profoundly authoritarian dimensions of this vision were made plain by Trump’s Senior Director for Counter-Terrorism Sebastian Gorka, who declared last week, ​“There is one person…who has the right to decide who can be in America, who are the aliens, who are the foreigners who are allowed into the nation, and who we can keep out…and that man is Donald Trump.”

Lawfare against Palestinian solidarity has a long history in the United States. As the Center for Constitutional Rights and Palestine Legal detailed in a vital 2024 report, ​“terrorism” first made its way into federal statute in 1969, with the aim of restricting aid provided by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). The first U.S. immigration law to name ​“terrorism” as a rationale for exclusion and deportation likewise singled out Palestinian political advocacy, holding that, ​“An alien who is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered…to be engaged in a terrorist activity.” 

But we also cannot underestimate the legacies of McCarthyism and the Red Scare. The Department of Homeland Security’s order detailing the reasons Khalil is ​“subject to removal” cites as legal basis a section of the Immigration and Nationality Act that allows the Secretary of State to deport any foreign national whose continued presence they believe has ​“potentially serious adverse foreign policy consequences for the United States.” This provision dates back to the 1952 McCarran-Walter Act, which provided for the ​“ideological exclusion” of foreigners deemed politically subversive — which principally meant communists. But, as historian Joshua Zeitz has recently noted, it was also driven by Democratic Nevada Sen. Pat McCarran’s anti-Semitism, as evidenced by the Act’s entrenchment of pre-existing quota systems that disadvantaged Jewish migrants from Eastern Europe, who were often under suspicion for Marxist sympathies. The McCarran-Walter Act was also used in a clear precedent to Khalil’s case, the 1987 deportation case against the ​“L.A. Eight” — eight immigrants (most of them Palestinian students), including two permanent residents, accused of supporting the Popular Front for the Liberation of Palestine (PFLP), identified as an organization advocating ​“world communism.” U.S. government prosecutors finally dropped the case in 2007.

The entanglement of anti-Palestinian racism, Islamophobia and the legacies of anti-communism runs deep. When the Supreme Court upheld Trump’s 2017 ​“Muslim Ban,” arguing that exclusion of foreign nationals was a ​“fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control,” it explicitly cited as precedent the 1972 SCOTUS ruling in Kleindienst v. Mandel, which upheld the Nixon administration’s decision to deny entry to the Belgian Trotkyist intellectual Ernest Mandel.

It’s also worth recalling that, although he has yet to issue an executive order on the matter, Trump vowed during his campaign to invoke another provision of the Immigration and Nationality Act to ​“order my government to deny entry to all communists and all Marxists,” in keeping with his chauvinistic motto that, ​“Those who come to enjoy our country must love our country.”

In her important history of ideological exclusion and deportation, Threat of Dissent, scholar Julia Rose Kraut observes that U.S. immigration laws betray ​“an underlying, perpetual fear of internal and external subversion…as well as the perception of foreigners as the source of subversion, responsible for instigating dissent and importing radical ideologies.” This politics of fear is driven by two tightly interwoven strands of U.S. nativism: anti-radicalism and racism.

To see how this is operating today, consider the rhetoric used in a January White House ​“fact sheet” on how it intends to ​“combat anti-Semitism” by ​“cancel[ing] the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before.”

After Khalil’s administrative abduction and threatened deportation, Palestinian-American analyst Yousef Munayyer warned that ​“Palestine is the canary in the coal mine” of U.S. ​“authoritarianism and repression.” And indeed, the question of Palestine is playing a critical role in the far Right’s project to bring higher education to heel — with frightening success so far, as Columbia’s abdication of academic freedom makes clear.

But anti-Palestinian animus is also a salient political ingredient in a deportation regime in which the designation of ​“terrorism” can be extended indefinitely. That’s the stark lesson from last month’s deportations to El Salvador, as the Trump administration first lumped together Venezuelan gangs and the Nicolás Maduro government in order to declare the former a terrorist entity, then used that designation to justify its unprecedented contract with far-right Salvadoran President Nayib Bukele to imprison U.S. deportees in El Salvador’s massive ​“Terrorism Confinement Center” (Cecot), without due process or trial. This sinister ​“deal” has already been contested in the courts — a challenge the Trump administration may have illegally ignored—and almost immediately led to reports of deportees being swallowed within these Salvadoran camps on no more ​“evidence” than some misidentified tattoos.

Immigration and nationality laws have always been key to fascist politics. In 1941, legal theorist Ernst Fraenkel identified German fascism as generating a ​“dual state” with two tracks of justice and rights: one a ​“normative state” for ​“Aryan” citizens and the other a ​“prerogative state” for all others classified as inferior or foreign. In 1926, Mussolini’s regime passed a law stripping citizenship from anti-fascist critics in exile, holding that one could be denationalized just for damaging Italy’s interests or prestige, ​“even if the act in question does not constitute a crime.”

There is a sinister echo of this logic in the Khalil case, whose detention was not linked to any law-breaking (though his past, unpaid UNRWA internship is now being used to claim he committed green card fraud). If Trump’s plenary prerogative power is defined as expansively as Gorka proposes, foreigners’ rights in the United States, especially freedom of speech, will be dead letter. Such a development would also effectively annul the Supreme Court ruling in the 1945 deportation case of Australian labor activist Harry Bridges that ​“freedom of speech and of the press is accorded aliens residing in this country.”

That some border agents are already interpreting Trump’s executive authority as total and the rights of foreign nationals as null is evident from the much-publicized case of the French space scientist deported from Houston airport the day after Khalil’s arrest, on the exceedingly slim grounds that border guards judged the scientist’s private phone messages to ​“reflect hatred toward Trump and can be described as terrorism.”

The eager participation of state agents and private individuals in anticipating and carrying out the wishes of the executive has always been essential to the success of authoritarian politics. As we try to answer Khalil’s question — and to struggle against nationalist, racist and exclusionary visions of ​“who has the right to have rights” — we must never take our eyes off those who make the liberticidal exercise of prerogative power possible, from lowly officials enforcing authoritarian decrees to capitalist elites endorsing the repression of dissent.

Khalil’s persecution, as scholar Nadia Abu El-Haj explains, was made possible by a wide cast of characters that includes the Columbia professors and students who explicitly pushed for his deportation; the Zionist activists and donors who spread lies about the encampment movement; the faculty members of a campus task force that conflated anti-Zionism with anti-Semitism; and, perhaps especially, the university leaders who ignored Khalil’s appeals for support and who have since swiftly, zealously caved into the Trump administration’s bill of demands.

Without this widespread complicity in the persecution of dissent, by individuals and institutions, the Trump administration’s ability to cast its ever-expanding list of enemies into a space of rightlessness would be far weaker.

Last week, some scholarly organizations took that lesson to heart, as the Middle East Studies Association and the American Association of University Professors filed a lawsuit against the Trump administration, arguing, in the words of Harvard professor Vincent Brown, that ​“The abduction, caging and deportation of noncitizen students on ideological grounds threatens the university’s purpose and function because the pursuit of knowledge cannot prosper in a climate of fear and repression.”

Or, as Khalil’s letter reminds us, ​“students, advocates, and elected officials must unite to defend the right to protest for Palestine. At stake are not just our voices, but the fundamental civil liberties of all.”