Closing arguments were made Monday in a federal case focused on reversing the Trump administration’s detention of foreign students and faculty for participating in pro-Palestinian activism.
Plaintiffs, including the American Association of University Professors and the Middle East Studies Association, are challenging what they say amounts to a government “ideological deportation policy” to revoke the visas and green cards of foreign scholars as violations of the First Amendment and the Administrative Procedure Act.
Government lawyers have argued that such a policy doesn’t exist, and defended that point to U.S. District Judge William G. Young over two weeks of hearings at Boston’s Moakley courthouse.
First Amendment rights
A major question that arose in multiple hearings is whether noncitizens have the same First Amendment rights as citizens. Justice Department Attorney Ethan Kanter said they do not, and that even if they have some First Amendment protection, there is a carve out for national security and the foreign policy concerns of the U.S.
Judge Young indicated he may not have a problem with that argument, noting that he believes “absolutely the primary authority over the foreign policy of the United States, if anything, is in the executive.”
But plaintiffs’ attorney Ramya Krishnan said the question had been well-settled, citing a concurrence from U.S. Supreme Court Justice Ruth Bader Ginsburg in Reno v. AADC.
“Non-citizens residing in this country enjoy the freedom of speech in the press, including to the deportation context,” said Krishnan. “And in fact, the Supreme Court has gone further, observing that the First Amendment doesn’t acknowledge any distinction between citizens and non-civilians who reside here.”
While they are not plaintiffs themselves, foreign students who’ve expressed pro-Palestinian views and later arrested by federal immigration authorities have been a central part of the trial, including Rümeysa Öztürk, the Tufts Ph.D. student detained by plainclothes ICE agents in March, and former Columbia student Mahmoud Khalil.
The government said that it has only arrested 18 people in relation to the claims.
Last week, top State Department official John Armstrong testified about how the government was making its decision to detain students, including by using the infamous Canary Mission website to identify student and faculty protesters with pro-Palestinian views. The website is run by a group known for targeting pro-Palestinian activists, leading them to be harassed and doxxed — including Öztürk, who was ultimately detained because she was identified through the website.
Those pro-Palestinian views were equated to antisemitism, said Armstrong, who also noted there was no exact definition of what antisemitic actions actually are.
ICE in masks
One of the plaintiffs’ central points was that the government’s actions were intentionally meant to terrorize pro-Palestinian activists and stifle their speech.
“The idea that you could be like Rümeysa Öztürk, a person who has written about your political or public views, and that you can be grabbed by masked plainclothes agents off the street and thrown into a van without even understanding who they are or why they’re grabbing you — this contributes to a campaign of fear,” plaintiff attorney Alexandra Conlon told GBH News in an interview.
The plaintiffs argued that one of the ways the government did that was by masking plainclothes ICE agents, making their enforcement highly visible and causing fear that creates a “chilling effect” on free speech. But in closing arguments, the government lawyers were the ones to raise the masking issue.
Kanter said that plaintiffs were struggling to tie together an argument when Congress had given the government the power to make decisions around foreign policy. He said this masking falls under that.
“For example, there’s no rule, as we heard from government agents, there is no rule requiring that masks be worn in effectuating an arrest, and there’s no rule prohibiting it either,” he said.
Judge Young called that “strange.”
“I don’t know of a single law enforcement agency in the U.S. that permits their members, apparently at their option to wear masks when carrying out their duty. Not one.” he said, going on to mention the history of U.S. Marshals enforcing the Fugitive Slave Act and not wearing masks.
Don Quixote and Henry II
As the government lawyers finished their closing arguments, they focused on trying to prove no actual harms exist to the plaintiffs. Because an “ideological deportation policy” doesn’t actually appear on paper, they said, the plaintiffs’ concerns aren’t grounded in reality. To make the point, DOJ attorney William Kanellis loaded up a PowerPoint-style presentation entitled “Illusion vs Reality,” and told the court the story of Don Quixote attacking 30 windmills.
“Just as Don Quixote of La Mancha imagined that these windmills were monsters, plaintiffs in this case imagined that the lawful arrests of individuals pursuant to laws and standards that had existed for up to 70 years amount to some grand government conspiracy,” said Kanellis.
“This policy is a product of the imagination and creative conjuring of the plaintiffs,” he added.
But plaintiff attorney Conlon said those harms were real, and outlined by previous witness testimony.
“You’ve heard that the plaintiffs refrained from publishing op-eds they wrote, abandoned scholarship ... to avoid any potential consequence for being associated with it by the government. You heard about protests that they attended, taking precautions to attend or didn’t attend at all,” said Conlon.
In response, Judge Young noted the case isn’t about policy, but in fact is about “concerted action.”
He referred to the 12th century English King Henry II, as an allegory of how President Trump publicizes opinions and evokes actions from lower cabinet officials.
“Will no one rid me of this meddlesome priest?” quoted Young, a remark attributed to Henry II that then led to “errant knights” murdering the Archbishop of Canterbury. Trump doesn’t have “errant knights, but he’s got Stephen Miller,” Young said to laughs in the room.
“The president is a master of speech and certainly brilliantly uses his right to free speech,” he said. “Whether he recognizes or not whether other people have any right to free speech is questionable,” he said, pointing to the president’s recent conflicts with Elon Musk and Sen. Adam Schiff of California.
Young expects additional court filings to be submitted in the next two weeks. Plaintiff attorney Conlon told GBH News they expect an opinion to be issued on the injunction before September.
