What The Hell America!

On March 15, unbeknownst to Suri, Rubio issued a determination that Suri’s presence in the United States held adverse consequences for US foreign policy. As this determination has yet to be produced by the government, the exact reasoning is unknown. But that same day, a decision was made to hold Suri in detention pending the outcome of removal proceedings against him.

Suri was unaware of all of this until the evening of March 17. The Indian national, who had been granted a visa to study and teach at Georgetown, was coming home from an Iftar with his wife when unmarked cars pulled up at his home. A masked man prevented Suri from entering his apartment building. The masked man informed Suri he was being arrested over his social media posts, that his visa was revoked, and he would be deported that very day.

Suri was detained at two separate facilities in Virginia, though he received a notice to appear before immigration court that listed a Texas address. The notice also listed Suri’s home address as an immigration detention facility in Texas.

The following day, Suri was placed on a plane. Without notice to himself, his wife, or his attorney, he was whisked away to Louisiana, where he was detained for three days. Finally, he was taken to Texas. While immigration officials claimed Suri’s rendition was because of overcrowding in Virginia, in Texas, he says he has been forced to sleep on the floor due to a lack of beds.

Suri’s arrest came one week after the high-profile arrest of Mahmoud Khalil on similar grounds. The next week, Öztürk was arrested under the same law as Khalil and Suri. In Öztürk’s case, her alleged offense is coauthoring an op-ed on divestment from Israel. Nearly a month later, another Columbia graduate student, Mohsen Mahdawi, was detained under the same Cold War provision over his speech critical of Israel.

Suri’s arrest is part of a concerted campaign by the Trump administration to terrorize critics of Israel into silence. Today it is based on the abuse of immigration law to target noncitizens, but there is no reason to expect that this witch hunt will stay limited.

Suri’s case adds another layer of complication. He is married to an American citizen, Mapheze Saleh. Saleh is Palestinian, and her father served in the Hamas-led government in Gaza. As Saleh spoke out against a genocide that was killing her family members, she became the target of anti-Palestinain blacklisters like Canary Mission along with her husband. Other targets of the Trump administration, like Khalil and Öztürk, were first targeted by these groups, raising the question of whether Suri was targeted not so much for his own speech, but to punish his US citizen wife for hers.

Removal proceedings happen in immigration courts, which are not part of the federal judiciary but rather the executive branch. Immigration judges therefore work for the same party that initiated the deportation. For over a hundred years, victims of politically abusive deportations have appealed to federal courts, usually in the form of habeas petitions. A habeas petition challenges not the underlying removal proceeding, but the legality of the detention. Habeas corpus has been considered a fundamental human right since the time of the Magna Carta.

Suri, like Khalil, Öztürk, and Mahdawi, is challenging his detention in federal court. A 2001 court ruling, Mapp v. Reno, creates a standard by which a party challenging their immigration detention can be released on bail before a final determination of their habeas claim. Each of these individuals have sought bail. Suri, Öztürk, and Mahdawi have been granted bail while the judge in Khalil’s case has yet to rule on bail.

In Mapp v. Reno, a panel of judges rejected the Clinton administration’s claim that courts could never review the executive branch’s detention of someone facing removal proceedings. Instead, they found that a federal judge had the same right to grant someone in immigration custody bail as they did someone convicted of a crime.

Bail for someone already convicted, as opposed to awaiting trial, is obviously extraordinarily rare, limited only to “unusual cases” or “extraordinary or exceptional circumstances.” This exacting standard must be met to be granted bail from immigration detention during a habeas proceeding.

First, the detained must have a pending habeas petition challenging the legality of their detention before the court. If a court finds someone is illegally detained, they are set free. But if the detainee’s habeas petition raises serious legal issues, usually constitutional issues, and there are exceptional circumstances that make the granting of bail necessary to make habeas relief necessary, then a federal court can grant bail before making a final determination of the legality of the detention.

Suri, like the others challenging their detention, has argued that his detention violates his First and Fifth Amendment rights. Suri has argued that the government retaliated against him for social media posts “in support of the Palestinian people,” “criticizing the death toll in Gaza,” “affirming international law principles,” and criticizing US support for Israel’s war in Gaza. Unlike Khalil or Mahdawi, Suri was not a high-profile activist. This has led him to argue that he is also being retaliated against for his association with his wife.

The government in Suri’s case made no challenge to the merits of any of these claims. Instead, following what the government has argued in other cases, they focused on arguing the court lacked jurisdiction to hear the case. Congress has stripped federal courts from reviewing discretionary decisions of the attorney general about immigration detention nor may federal courts hear any case “arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders.”

In the 1990s, the Supreme Court interpreted the later congressional act as barring courts from hearing challenges to immigration enforcement on the grounds of selective enforcement. The context of the case was eight Los Angeles activists targeted for their First Amendment protected speech in support of Palestine.

The Department of Justice is arguing that these provisions apply to the secretary of state’s determinations that the presence of supporters of Palestinian rights in the United States poses a threat to US foreign policy. They also argue that the habeas petitioners are either essentially using the challenge to their detention as a background means of challenging the commencement of immigration proceedings or that their detention is so inherently tied to the removal proceedings themselves that they cannot challenge their detention. As Judge Giles noted during Suri’s case, every court who heard these arguments in similar cases has rejected them.

The government has also argued that the Rubio determinations cannot be reviewed, as they are part of his foreign policy powers. According to this line of argument, all the government needs to do is prove Rubio made the determination; there is nothing the court can do. Not only did Judge Giles reject this argument, she also noted that the government had failed to provide the court with Rubio’s determination. A government lawyer not only confirmed the government hadn’t submitted this determination to Judge Giles, but stated he didn’t think it had been submitted with the immigration court either. Thus, the government refused to even take cursory steps to prove the existence of the magic piece of paper they claimed shielded them from being overruled.

While the government refused to submit any additional information on why Suri was detained, Judge Giles noted they had posted multiple times on social media about the case. These posts, according to the judge, indicated chilling speech was the reason for Suri’s detention. Judge Giles also took into account posts by Rubio indicating the purpose of the visa revocations broadly were about suppressing speech, and comments from Trump stating he was going to kick people out of the country for protesting Israel.

Ultimately, Giles found that Suri had presented constitutional issues he was likely to prevail on, but the punitive nature of his detention and threat to free speech posed by Trump and Rubio constituted the type of exceptional circumstance where granting bail is necessary.

Giles also imposed only limited conditions on Suri. She mandated he live in Virginia, attend his habeas hearings in person, and attend his removal proceeding, which is being held remotely. Giles rejected requests from the government to impose GPS monitoring or require a bond, noting the government had failed to prove Suri was a flight risk. Of course, the idea that Suri, who is fighting to stay in the United States, was a flight risk who needed to be prevented from leaving is particularly absurd. A lawyer for the government had suggested bond was justified given the harm the government would face due to the costs of re-detaining Suri if the order to release him was overturned on appeal. Judge Giles asked the lawyer to repeat what he said as stifled chuckles could be heard in the public gallery.

Before becoming a judge, Giles was a career prosecutor. Last year, showing a high level of deference to the government, she reserved a decision to grant bail to an accused CIA leaker. Giles is hardly someone unsympathetic to the government or liberal about granting bail. And the standard Suri had to prove to be granted bail was also quite high.

Yet in the end, Giles recognized the clear threat to free expression Suri’s continued detention poses. This shows just what an exceptional circumstance Trump and Rubio’s effort to stamp out pro-Palestinian sentiment has become.

The United States has had a Palestine exception to free speech in recent years. But since Israel unleashed its genocidal war on the Palestinian people of Gaza, that situation has worsened. With Joe Biden at the helm, the United States entered in its worst crisis for civil liberties since the early “war on terror,” as politicians’ bipartisan, unwavering support for Israel’s war of extermination clashed with the public’s growing horror at the slaughter in Gaza.

The Trump administration, which is unabashed in its hostility toward dissent, has picked up this baton and escalated the attacks on the First Amendment even further. In a ruling to grant Columbia graduate student Mahdawi bail, a judge cited in part a situation similar to the Palmer Raids or McCarthy period as justifying the measure. Suri being whisked away from his family and confined in squalid conditions over a thousand miles from home is a grave injustice.

But like with Mahdawi, Öztürk, or Khalil, the very real human tragedy for one individual is not the only reason these cases are compelling. Each of these cases are pieces in a coordinated attack on free speech. And thus each of these individual cases are tied with the future of the First Amendment.