Congress Can Shore Up Anti-Terror Laws

Hello from the past. I write from the midst of the panic over the Trump administration detaining Columbia agitator and lawful permanent resident Mahmoud Khalil. Debate is currently raging over what degree of First Amendment protection should attach to Khalil’s expressions of support for terrorist groups like Hamas. A federal judge has paused the deportation and transferred the case to another jurisdiction. The government remains cagey about exactly why and under what authority it intends to deport Khalil. In the meantime, Khalil has become the face of a movement.

Across the political and ideological spectrum, public figures have decried the attempted deportation as a violation of Khalil’s free speech rights, noting correctly that non-citizens do enjoy at least some degree of First Amendment protections. Leading legal practitioners and professors have spoken up in his defense. They argue primarily that the Immigration and Nationality Act’s provision authorizing the deportation of non-citizens who “espouse support for terrorist groups” or serve as “a representative of…a political, social, or other group that endorses or espouses terrorist activity” conflicts with the First Amendment’s broad protections for speech. That is the presumptive basis for Mr. Khalil’s detention, and the many that President Trump has promised will follow. And it has led many to distinguish between good law and good policy: While it would be great to rid ourselves of America-hating radicals like Khalil, we simply cannot deport him and his ilk for their abhorrent speech.

Supreme Court precedent, long applied by lower courts and immigration judges, indicates that the “espouse” provision, on its face, passes constitutional muster. But relying on it as currently written is fraught with complication. Deporting lawful permanent residents for speech that would be protected if it came from a citizen lends itself to confused arguments about the proper balance between free-speech rights and national-security interests and could ultimately be politically toxic. It has already led some conservatives – and not even particularly anti-Trump ones – to heated criticism of the attempt to deport Khalil. As I and others have pointed out, other hooks in the INA do not punish Khalil’s speech but authorize his deportation, such as his holding himself out as a representative of a group that endorses or espouses terrorism. But what will the administration rely on when it tries to go after rank-and-file terror supporters, as it has promised to do?

Jed Rubenfeld, Ilya Somin, and others have also pointed out that the First Amendment issues are not as settled as they may seem. This fact pattern – a green card holder who represented a group that was openly pro-terrorist facing deportation for “espousing terrorist activity” – is untested as a First Amendment issue. (Once again, I and others have registered our disagreement because Khalil has “espoused” terrorism through actions in addition to speech.) The administration’s effort currently runs the risk of inviting the Supreme Court, which has generally taken an expansive view of First Amendment protections, to rule the provision unconstitutionally broad or vague, or a constitutional violation as applied.

Similar free-speech issues will surely crop up when a different statute is used to prosecute (criminally and civilly) American citizens for supporting designated foreign terrorist organizations. Federal law prohibits providing “material support” to such groups, and the Supreme Court has ruled that the term is quite expansive. In a key 2010 case, the Court ruled that even providing legal education – which arguably enjoys First Amendment protection – to a terrorist organization could be prosecuted as material support. At least one appeals court has taken a similarly broad view of the crime of attempted material support for terrorism, allowing the prosecution of Americans who aimed to translate and disseminate ISIS propaganda without even coordinating with the terrorists. There is certainly a theory under which Khalil, his group, and similar ones are attempting to provide such support – which might suffice for a conviction for attempted material support- and believe they are advancing Hamas’s interests. But will that hold up in court when American citizens claim they were merely exercising their First Amendment rights?  

Congress can and should act to make the debate over noncitizens’ First Amendment rights moot and preempt further heated debate over material support. It can do so with brief clarifications to each operative statute, stating that unlawful actions taken with the intent to advance the interests of foreign terrorist organizations violate federal law. (State legislatures, of course, can add analogous statutes to their criminal codes.)

Many of Khalil’s critics have pointed out that his apparent support for Hamas alone is the least of his misdeeds. Most of them take the form of conduct which does not enjoy First Amendment protection. He and his group have been the main instigators of activities at Columbia that break school rules and violate all kinds of laws, including trespassing, vandalism, and discriminatory harassment against Jewish and Israeli students.

The theory of civil terrorism helps us understand how these actions are part of a broader strategy to advance Hamas’s (and other terrorist groups, like the Houthis and Hezbollah) interests. Blocking thoroughfares, vandalizing property, and harassing fellow students all aim to intimidate and inconvenience decent Americans into capitulating to the radicals’ demands, all while circumventing democratic processes. Civil terrorists should be prosecuted for their crimes regardless of citizenship status and regardless of whether they are acting in the interests of designated terror groups. But it is imperative to crack down when they are doing so in the interests of malign foreign actors as part of a broad global strategy to destabilize the West and undermine the United States and its allies.

As I have written, it is likely that the INA and material support statutes currently cover such actions. Yet, it is at least debatable. Congress can strengthen the legal case for dealing appropriately with more terrorist sympathizers by adding a provision to the law that connects their civil terrorism to their deportation. Khalil and his ilk are not just espousers of support for terrorism in words; they advance terrorists’ cause by breaking laws.

Of course, the process that will be due to those accused of unlawful actions will depend on citizenship status. Non-citizens will have the opportunity to present their case before an immigration judge, although the government will not be required to prove guilt for the underlying unlawful activity beyond a reasonable doubt. (The standard for deportation is lower than for proving criminal liability; if Congress wants to institute additional protections for noncitizens accused of various misdeeds, it can do that too.) Anyone accused of material support for terrorism will have all the protections afforded to defendants under the regular American legal system.

Doubtless, this is a belt-and-suspenders approach to ensuring that legal anti-terror efforts remain on solid constitutional ground. It should not be hard to find evidence of terror-sympathizers engaging in acts of civil terrorism, because they do so all the time – it’s a crucial part of their activism. That should suffice as evidence supporting an accusation of “espousing” or material support for terrorism. And the canon of constitutional avoidance counsels Supreme Court justices to interpret the INA in a way that would not invite First Amendment problems.  So why bother adding language about action, if the law and constitutional avoidance get you where you need to go? First, legal certainty provides leverage in the undeniable controversy here. Second, some vigilance in protecting the letter and spirit of the First Amendment is always warranted, especially in the face of accusations that certain free-speech defenders are acting unprincipled or letting their hatred of protestors get the best of them.

But most of all, it’s just good and useful politics. Whoever proposes these amendments will make the supposed principled free-speech defenders answer whether they support deportations for terrorist supporters when free speech is no longer part of the equation. By isolating that variable, we will be able to distinguish between the true (and honorable, if sometimes incorrect) free speech maximalists and those who pick up free speech arguments because they are the most readily available weapons.

At the very least, sponsors of the amendment would have the opportunity to put their opponents on the spot: Are they really principled defenders of free speech? Or do they just sympathize with anti-American revolutionaries?

Tal Fortgang is a Legal Policy Fellow at the Manhattan Institute.