In April, U.S. District Judge William Young, who sits in Boston, made a procedural ruling from the bench that seemed to catch the lawyers in the courtroom by surprise. Like many other judges these days, Young had convened a hearing to consider whether to grant a preliminary injunction—which, in the normal course, would put a quick stop to an illegal or otherwise unconstitutional government policy. By one count, in the first seventy days of Donald Trump’s Presidency, forty-six judges across the country have issued this kind of order, preventing the Administration from forging ahead with its move-fast-and-break-things style of governance. The purpose behind these orders is to prevent imminent, irreparable harm to the plaintiffs and allow courts additional time to assess the legality of the challenged action.
But Judge Young had other ideas. “Pursuant to Federal Rule of Civil Procedure 65(a),” he announced in open court, “further hearing on the motion for a preliminary injunction is combined with trial on the merits.” In other words, he wouldn’t simply grant short-term relief and kick the can down the road. There would be a trial, and it would happen fast—which meant that depositions, document productions, case-management conferences, and other minutiae would all go down in a couple of months’ time before proceedings began sometime in the summer. That choice set in motion what can be fairly described as the most consequential and far-reaching trial of the second Trump Presidency: American Association of University Professors et al. v. Marco Rubio—or A.A.U.P. v. Rubio, for short—challenges the Administration’s systematic campaign to arrest, disappear, detain, and deport pro-Palestinian student protesters and advocates.
The targets of this shocking crusade, all of them noncitizen visa holders or lawful permanent residents who have spoken out against the war in Gaza, are well known by now, some more than others: Mahmoud Khalil, Rümeysa Öztürk, Mohsen Mahdawi, Yunseo Chung, Badar Khan Suri. All of them landed on the government’s radar, and were pursued by ICE, at around the same time in March and April. All of them contend that the government sought to deport them on the basis of their constitutionally protected antiwar speech, and have won back or secured their freedom from immigration detention in the process. Yet this freedom—and their freedom to remain in the U.S.—is tenuous. The government still wants Khalil and the other students reincarcerated, back in immigration court, or else fighting for their chance to remain or study in the U.S. in highly complex legal proceedings.
For Khalil, Öztürk, and others, the truth about how and why ICE hunted them down has been somewhat elusive. They and their lawyers know what the rest of us know: they’re the public faces of a campaign against pro-Palestinian student protesters that’s part of a much broader assault on the First Amendment and higher education itself. The Administration, for its part, has been brutally honest about its intentions: “This is the first arrest of many to come,” Trump wrote on Truth Social, two days after Khalil, a Syrian-born Algerian citizen who was about to graduate from Columbia University, was apprehended. Pointing to “this Administration’s policy,” Karoline Leavitt, the White House press secretary, later said that participating in “anti-American, antisemitic, pro-Hamas protest will not be tolerated,” and that the Department of Homeland Security was “using intelligence” to identify students who did. Rubio, the Secretary of State, meanwhile, has been personally signing off on visa and green-card revocations through a little-used authority granted to him under immigration laws. After Öztürk, a Turkish national in her fifth year as a doctoral student at Tufts University, was arrested, following an op-ed she wrote, Rubio acknowledged that he was behind her detention. “At some point I hope we run out because we’ve gotten rid of all of them,” he said. “But we’re looking every day for these lunatics that are tearing things up.” This openness isn’t lost on Judge Young. “The government isn’t acting secretly here,” he said in court. “One thing that can be said is the government’s pretty forthright about what it’s doing.”
But the students targeted by the Administration, to this day, do not fully know what the government knows, such as how they ended up on a blacklist that was then acted on by the State Department and other immigration authorities. Nor do they know how agents of the state, either in the field or from an office in Washington, D.C., decided to single them out, and then proceeded with their detention and attempted deportation. There has also been no official account of the chilling effect that this coördinated approach has had on scores of other international students, scholars, and academics who now feel they must self-censor, retreat from public life, scrub their online presence, or refrain from protest activity. That is the focus of A.A.U.P. v. Rubio, which was brought not by Khalil and the other students who have been singled out by the Administration but, rather, by the people who fear they will be next in the line of fire. The trial matters because, for the first time, this wealth of truth, much of it in the government’s possession, and its broader effects are coming to light in ways they wouldn’t have otherwise—let alone in piecemeal litigation, habeas proceedings, or else in faraway immigration courts, where the process itself, as Khalil and his legal team know well, is a form of punishment. As court records in the students’ parallel cases against the Administration illustrate, these are forums where cases might not ever go to trial.
Judge Young loves trials. As he put it when he decided to have one in this case, “Trials reach out for justice . . . in the best way that humankind knows. That’s what I want. I want a trial. You’ve given me the basis to order one. I am.”
Because this is a bench trial, rendering Judge Young—rather than a jury—the sole arbiter of the facts and the law, he has made it plain that it’s not his intention to relitigate any of the student cases, or else meddle with the work of the other judges handling them. “I don’t instruct other judges,” he said, early in the trial. He has run a tight ship, keeping to strict time limits (four and a half days of testimony per side), and staying focussed on the issues at hand, namely who did what and when during the implementation of the government’s policy of rounding up pro-Palestininan student advocates for deportation; proof of how the plaintiff organizations’ First Amendment rights, and those of noncitizen members, have been violated; and evidence that shows the government is liable for those harms. Down the line, the judge will consider what kind of remedy he can order, if necessary.
Unlike the student protesters, all of whom have legal standing to bring their own cases against the government for their suffering, the plaintiffs here—the American Association of University Professors, three of its chapters, and the Middle East Studies Association—allege a different kind of harm: their inability to fully exercise their right to teach, write, organize, and collaborate with one another, as scholars often do in their various fields, because doing so would put them in the sights of the Administration. (The case was filed by the Knight First Amendment Institute at Columbia University. Since May, I have hosted a podcast, “The Bully’s Pulpit,” produced by the institute, but I have no connection to its legal team.) Some of them have unique ties to Khalil and the students who have been targeted. Nadia Abu El-Haj, a professor at Columbia, spoke of how Mahdawi, a Palestinian refugee who was studying at the university, told her that he had a feeling he was next after Khalil’s arrest: “He asked me to convince the Columbia University president to move him from his Columbia housing that was off campus to inside the gates, because at that point the university was requiring a judicial warrant for ICE agents to enter the gates of Columbia, and the properties outside were less secure.” (Ultimately, Mahdawi was arrested by ICE in Vermont, after travelling to the state for a scheduled naturalization interview. He was freed just in time for his graduation in May.)
The government, still committed to the students’ deportations, has objected strenuously to having any recollections of private conversations with the likes of Mahdawi or Öztürk admitted into the record—such as when Öztürk, shortly before her arrest, showed up at her academic adviser’s office, clearly distraught, after seeing her profile on the website for Canary Mission, the anonymously run pro-Israel organization that, as many have suspected and the trial has finally confirmed, fed names to the Administration’s operation against pro-Palestininan students. Young wouldn’t let the contents of the conversation into evidence, but Öztürk’s adviser at Tufts, Sara Johnson, did get to describe the effect this doxing had on her and her student: “Her eyes were red. Her face was puffy. She was clearly trying to hold back tears with a fistful of Kleenex.”
The extent to which the Administration acted on close to five thousand tips from Canary Mission and from Betar U.S., another pro-Israel group, which together have compiled thousands of profiles of pro-Palestinian students, has emerged as a major pillar of the plaintiffs’ case. Peter Hatch, an assistant director of intelligence at ICE’s Homeland Security Investigations, testified on the third day of the trial that “most” of the names came from Canary Mission. “We received information on the same protester from multiple sources, but Canary Mission was the most inclusive,” he said. The volume of names was such that the government created a “tiger team”—a term of art in the federal government—of intelligence analysts to process the names of protesters expeditiously to create “reports of analysis” on upward of a hundred of them, which would then be shared with the State Department for further action. The reports for Khalil, Öztürk, and the other students were admitted into evidence and shown in open court for the first time—up to that point, the government had never disclosed them, despite the students’ lawyers having asked for the reports and other relevant documents in litigation.
By now, there’s little doubt that this effort was a carefully orchestrated policy, involving multiple components in different agencies. Yet the higher the official was in the chain of command, the greater their resistance to admitting that there was one. John Armstrong, the head of the State Department’s Bureau of Consular Affairs and the person who signed off on “action memos” for Rubio to carry out—including those which involved four of the five students—adamantly denied his operation was anything akin to an ideological deportation policy. “At the end of the day, the buck stops with me,” he said on the fifth day of trial. “I would know if there was an ideological deportation policy going on that involved the Bureau of Consular Affairs. It’s silly to suggest that there’s such a policy that I wouldn’t know about.”
But is any of this silly? And, if it is, why has the government fought so vigilantly to keep a number of documents and other evidence secret? Not long before Armstrong made that statement, the government attempted to clear the courtroom so that Armstrong would testify to a “confidential” document already in evidence. Young wouldn’t have any of it. “There’s a constitutional right to have a public courtroom for public trials,” he said. And, while another State Department official testified that same day, the government invoked the Presidential-communications privilege to not disclose the identities of members of the Homeland Security Council, which is part of the Executive Office of the President. “Its membership is secret?” Young asked. “I may not know who these people are? . . . Is that what you’re saying?”
The government insisted that the names were privileged, although it is not a stretch to imagine that Stephen Miller, Trump’s right-hand adviser on immigration, was one of them. As Politico reported, in unsealed court records of the trial, Armstrong had revealed under oath that he’d had “at least a dozen” meetings with Trump’s inner circle about these cases, and that Miller was part of conference calls involving the Homeland Security Council and other agencies “at one point at least weekly.” Yet how hands-on Miller was remains something of a mystery—as does the contents of Exhibit A, another document over which the government has invoked the Presidential-communications privilege. Whatever its contents, the name of the document, which was sent from the State Department to the White House in March, bears all the hallmarks of policymaking, or a policy in the making: “Report on Department of State Authorities to Counter Anti-Semitism and Recommendations for Familiarizing Institutions of Higher Education with the Security and Related Grounds for Visa Inadmissibility.”
Besides, whatever decisions the White House made or didn’t make are made somewhat clearer by evidence from others further down the chain: as one senior ICE official, Andre Watson, testified last Thursday, he personally signed off on letters recommending that the State Department revoke the visas of the targeted students, or otherwise mark them for deportation. In Khalil’s case, Watson acknowledged that his letter to State was sent one day before ICE arrested Khalil at his Columbia residence. (Watson has been busy with other litigation challenging the chaos brought about by the sudden termination of scores of student-visa records across the country.) And then there’s the supervisory ICE official who, in a moment of candor, told the court that “there were a lot of hands in the fishbowl” in the operation to nab Öztürk near her home in Somerville, Massachusetts. He also said that he couldn’t “recall receiving a communication” from a higher-up instructing him to take action in a case like the Tufts student’s—all but admitting that arresting a student over an opinion piece in her student newspaper is not standard agency protocol.
On the final full day of testimony, on Friday, Armstrong returned to the stand, this time virtually, and gave away the game. For one, he conceded that his office, which plays a key role in revoking student visas, has been operating without a working definition of “antisemitism.” In effect, this means that chants such as “From the river to the sea, Palestine will be free,” or denouncing Zionism, or calling for an arms embargo on Israel, among other common activist demands, could be grounds for a revocation. This definitional vacuum prompted Young to ask Armstrong for his personal definition. “In my opinion, antisemitism is unjustified views, biases, or prejudices, or actions against Jewish people, or Israel, that are the result of hatred toward them,” he said.
Far more striking was the revelation that Armstrong, in the case of Mahdawi, warned Rubio that revoking the student’s lawful status over his protest activities, under the Immigration and Nationality Act, could result in a legal challenge down the line. “Given the potential that a court may consider his actions inextricably tied to speech protected under the First Amendment, it is likely that courts will closely scrutinize the basis for this determination,” Armstrong wrote to Rubio in mid-March; Rubio approved the revocation the same day. In the case of Öztürk, for whom a D.H.S. assessment had found no evidence of antisemitic conduct or support for a terrorist organization, Armstrong didn’t go to Rubio but instead made the decision to revoke her visa himself. “I thought long and hard about Ms. Öztürk’s case,” he said.
The trial ended on Monday. During the government’s closing argument, it alluded to “Don Quixote,” suggesting that the academic organizations’ case was a pursuit of an imaginary enemy akin to Cervantes’s hero’s attempt to attack windmills that he has mistaken for giants. In response, Young compared Trump to Henry II, whose musing “Can someone rid me of this nettlesome priest?,” though not an overt order, famously prompted four “errant knights” to assassinate the clergyman who vexed the king. The President, Young said, “doesn’t have errant knights, but he has Stephen Miller.” Trump, he went on, “certainly brilliantly uses his right to free speech. Whether he recognizes or not whether other people have any right to free speech is questionable.”
As Young has indicated more than once, the case is now “under advisement”—judge-speak for taking an unspecified amount of time to deliberate and rule. Expect a voluminous, thoughtful decision: in another Trump 2.0 case dealing with substantial funding cuts to scientific research, which Young declared unlawful last month, his written ruling ran a hundred and three pages. That was after a one-day trial. (In a courtroom not far from Young’s, on Monday, lawyers for the Trump Administration squared off with Harvard University over its own First Amendment challenge to more than two billion dollars in research-funding cuts; there, as in the A.A.U.P. case, the government is wielding antisemitism as a cudgel to justify its actions.)
Should Young strike down the policy and find the government liable, his next job will be to craft a remedy, which will have to be forward-looking—he can’t touch the student cases. Yet the fact that a number of noncitizen academics were able to take the stand at all, without fear of repercussions from the government, offers a window into the kind of relief that’s within the judge’s reach. Ahead of trial, and despite the government’s opposition, Young ordered that no one taking the stand be subject to adverse immigration consequences—in effect, a witness-protection program not by the government but from it. Might the judge be able to restore their freedom to speak outside the courtroom?
Two of the noncitizen scholars who benefitted from this protective order—Megan Hyska, who is Canadian, and Nadje Al-Ali, who grew up in Germany with a German mother and an Iraqi father—testified at length about what watching and internalizing the harrowing viral videos of Khalil and Öztürk getting ambushed by ICE did to their lives and careers. They spoke about how their own freedom to write and teach and participate in conferences abroad came to a standstill. They spoke about the cancelled trips and postponed academic fellowships, for fear that the government might not let them back into the U.S. And they spoke about how they saw themselves, and their own students, in those videos. “I know about dictatorship and repression and my relatives in Iraq lived with that fear of being picked up from the street,” Al-Ali testified. “So it really reminded me of that.” ♦
