Columbia University student and legal US resident, Mahmoud Khalil, was arrested last week by federal agents. Although Khalil is a legal resident with a green card, and has not even been accused of any immigration-related infraction, he is being held at an immigration detention center.

The Trump administration has hinted that Khalil is guilty of some sort of non-specific “terrorist” activity, but Khalil has yet to be charged with any crime at all. Indeed, when House Speaker Mike Johnson was asked at a recent press conference what crime Khalil had committed, he couldn’t name one. 

Rather, as the AP reported yesterday, “The Department of Homeland Security said Khalil was taken into custody as a result of Trump’s executive orders prohibiting antisemitism.” So specific act of violence, theft, vandalism, or fraud is named. 

So, here’s the situation: a legal resident of the United States, who has not been convicted of any crime, or even facing any changes, is now in a holding cell until government agents can come up with a “crime” that they think they can get past a federal judge.

Do Non-Citizens Have Constitutional Rights?

Whatever one may conclude in the recent debate over illegal aliens—and whether or not those people have a right of due process—no one disputes that Khalil is a legal resident. Moreover, he’s a green card holder and permanent resident, and not just a visa holder.

So, does Khalil have a legal right to due process in the United States? Can the administration simply pack him off to jail because the president wishes it?

The Trump administration and its supporters have long labored under the false notion that non-citizens do not have full legal rights under the US constitution. In this, they reflect the views of Dick Cheney and other politicians of the era of the “Global War on Terror” when the executive state was forever searching for new ways to justify spying on American citizens and expanding the police state.

This idea, however, has no grounding in text of the Bill of Rights or in the thinking of American “founders” influenced by Thomas Jefferson and other opponents of a strong central American state. David Cole writes in the Thomas Jefferson Law Review:

The Constitution does distinguish in some respects between the rights of citizens and noncitizens: the right not to be discriminatorily denied the vote and the right to run for federal elective office are expressly restricted to citizens. All other rights, however, are written without such a limitation. The Fifth and Fourteenth Amendment due process and equal protection guarantees extend to all “persons.” The rights attaching to criminal trials, including the right to a public trial, a trial by jury, the assistance of a lawyer, and the right to confront adverse witnesses, all apply to “the accused.” And both the First Amendment’s protections of political and religious freedoms and the Fourth Amendment’s protection of privacy and liberty apply to “the people.” The fact that the Framers chose to limit to citizens only the rights to vote and to run for federal office is one indication that they did not intend other constitutional rights to be so limited. The Court has repeatedly stated that “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. ...

When noncitizens, no matter what their status, are tried for crimes, they are entitled to all of the rights that attach to the criminal process, without any distinction based on their nationality. There are strong normative reasons for the uniform extension of these fundamental rights. As James Madison himself argued, those subject to the obligations of our legal system ought to be entitled to its protections.

This idea is clearly represented in the text of the Bill of Rights itself. Historian Wang Xi notes:

It is also important to note that the word “citizen” or “citizens” was not used at all in the Bill of Rights, the first ten amendments added to the Constitution in 1791. The Bill of Rights used “people” five times and “person”/“persons” four times. The implication is clear: the fundamental rights to be protected here were not the rights to be granted to citizens but rights that had belonged to people before citizenship was created. These rights were beyond the reach of the (federal) government.

This last sentence is key and illustrates an important philosophical and ideological reason why the Bill of Rights rightly applies to all persons, and not only to citizens. Rights can only truly be “beyond the reach” of the federal government if they are assumed to not be voidable by the US government. If rights can be voided by revoking or denying citizenship, then federal government enjoys a big loophole when it comes to the bill of rights.

The early framers recognized this, and since the Bill of Rights was designed specifically by the anti-federalists to limit federal power, this disconnect between rights and citizenship helped ensure that the federal government could not do an end run around rights by simply declaring that a person was not a citizen. (Notably, in the early decades of the constitution, it was the states, not the federal government, that determined citizenship, further limiting federal power.)

This all makes perfect sense when we recognize that citizenship and natural rights are two completely different things. Citizenship is an administrative status that has no meaning outside of administrative government. “Rights,” understood as property rights or natural rights, pre-date the state and exist separate from it. True property rights are natural, and if rights are natural in their origin—i.e., people are “endowed by their Creator with certain unalienable Rights”, to use Jefferson’s phrase—then rights cannot be denied based on one’s citizenship status.

The Current Hysteria Mirrors that behind the Alien and Sedition Acts

In the centuries since the Bill of Rights was written, however, the federal government has become far more powerful than it was in the 1790s. The federal government—usually motivated by fears over “insurrectionists” and foreign threats—has invented for itself many ways that it can get around the Bill of Rights.

Indeed, those who favored an expanded federal state almost immediately set to work giving the federal government new powers to be used against resident aliens. This can be seen in the Federalist Party’s support of the Alien and Sedition Acts during the John Adams administration. The Federalists routinely played up domestic fears about French revolutionary involvement in the United States, and used this as justification for new laws allowing the President vast new powers to deport alleged enemies of the state and to silence critics. This was justified on the idea that foreign agents were undermining the United States government somehow, and therefore resident aliens ought to be stripped of their natural rights. As a result, many enemies of the Adams regime were arrested and deported, Some were even imprisoned in the United States.

Fortunately, the Jeffersonians came to power in 1801 and allowed most of the provisions of the acts to expire. For decades afterward, the federal government remained extremely limited in its powers to deny property rights based on citizenship or claims of “insurrection.” It was not until the aftermath of the US Civil War, with newly invented political crimes like “sedition,” that the Federal government was again able to significantly expand its prosecutions of alleged foreign agents. These federal powers were again greatly expanded with the widespread xenophobia that prevailed during the two World Wars.

Property Rights versus the Fake “Crime” of Federally Defined Antisemitism

The current administration’s efforts to void property rights for non-citizens is especially troubling given the political nature of the alleged crimes of Khalil. On Monday, federal official claimed Khalil was arrested to enforce the White House’s new order on “antisemitism.” On Tuesday, however, officials were claiming that Khalil was arrested for some sort of terrorism because Khalil had facilitated the distribution of “pro-Hamas propaganda.”

Either way, it seems the federal government plans to charge Khalil with some vague antisemitism charge or with the “crime” of saying pro-Hamas things. It’s hard to imagine two “crimes” that are less permissible under an honest reading of the First Amendment.

First of all, the new “crime” of antisemitism, invented by the president’s recent executive order, is nothing more than the sort of “hate crime” law that Conservatives used to revile. The president’s order says that discriminating against Jews or engaging in crimes that target Jews are a special kind of crime. Conservatives used to mock this sort of thing and rightly so. First of all, if Jewish students on campuses have been physically assaulted or their property vandalized, then the people who commit those crimes should be prosecuted for assault and vandalism. Vandalism and assault are already illegal. Moreover, “discrimination” isn’t a real crime if it doesn’t involve some sort of physical violence, fraud, or theft. Not liking a person because he or she is a member of a certain group is illogical and distasteful, but it has never been an actual violation of property rights. Non-violent “discrimination” is simply another term for “free association.”

Specific threats against the safety of any person—whether Jewish or not—are already crimes. There is no need of a special antisemitism law. Of course, the administration knows that acts of violence and vandalism are already illegal. The real purpose of the executive order is to crack down on protests against the State of Israel and virtually everyone knows this. It is clear that Khalil’s real “crime” is criticizing the State of Israel, and Trump has said as much, singling out anti-Israel protests as the only sort of protest for targeting in his executive order. If Khalil had protested anything other than the State of Israel, he’d be a free man right now. 

Nor is it a real crime—i.e., a violation of property rights—to say things in support of some alleged terrorist organization. The very idea of such a thing would have struck most conscientious Americans as despotic in the extreme throughout most of the nineteenth century.

For many supporters of the administration, the fact that federal agents have arrested Khalil is enough to establish his guilt and revoke his rights. No due process is necessary. And, apparently, its not even necessary that Khalil commit any actual crimes against person or property. It’s enough that he’s a person the administration doesn’t like. So deportation awaits. 

The spirit of the Alien and Sedition acts is alive and well.