“The President cannot summarily declare that a foreign nation or government has threatened or perpetrated an invasion or predatory incursion of the United States, followed by the identification of the alien enemies subject to detention or removal,” Rodriguez wrote. “Allowing the President to unilaterally define the conditions when he may invoke the (Alien Enemies Act), and then summarily declare that those conditions exist, would remove all limitations to the Executive Branch’s authority under the AEA, and would strip the courts of their traditional role of interpreting Congressional statutes to determine whether a government official has exceeded the statute’s scope. The law does not support such a position.” Closer to home, in liberal Vermont, US District Judge Geoffrey W. Crawford, who was nominated by President Barack Obama, cited the Constitution and Supreme Court precedent in the case of Moshen Mahdawi, a Palestinian Columbia University student and green card holder who was arrested for leading protests against the war in Gaza. On Wednesday, Crawford ordered Mahdawi’s release, even as the government continues to seek his deportation. Crawford’s 29-page ruling ordering Mahdawi’s release and dismissal of the government’s thin claims is worth a read. After more than three months of enforcement actions that sometimes seemed more like abductions than routine arrests, Crawford’s ringing rejection of unaccountable executive power is the strongest pushback yet against an administration that has insisted it is not subject to judicial oversight. In the days leading up to his citizenship interview in Vermont, where he lives when not attending classes at Columbia, Mahdawi studied the Constitution, imbibing its essence, soaking up its promise. At the same time, people working for the US government were studying how to ignore that same Constitution, to cynically abuse it in the name of exercising unbridled power. Luckily for Mahdawi, Crawford was reading the same hallowed document immigrants have to study to pass the government’s civics test to become US citizens. Mahdawi had gone to his citizenship interview on April 14 suspecting it was a trap, a ruse, and indeed it was. He was arrested by a government that believed the Constitution provided it with cover and him with nothing. But Crawford, sitting in federal court in Burlington, agreed with Mahdawi’s lawyers who argued persuasively the Trump administration violated Mahdawi’s First Amendment right to free speech and, in detaining him without providing any real evidence of a crime, his Fifth Amendment right to due process. The government initially sought to justify Mahdawi’s detention with its interpretation of the Alien Enemies Act, but it tried to persuade Crawford to keep Mahdawi locked up by impugning his character. The government cited a 2015 incident, in which a gun shop owner told police in Windsor, Vt., that Mahdawi made disturbing statements during two separate visits to his shop. The gun shop owner claimed Mahdawi expressed interest in learning more about firearms and buying some, and that he “had considerable firearm experience” and built a modified “sub machine gun to kill Jews while he was in Palestine,” the government wrote. The gun shop owner gave police the name of a fellow gun enthusiast who claimed he had a similar conversation with Mahdawi at a museum in Windsor. That man, according to the government, claimed that Mahdawi told him, “I like to kill Jews.” Not only did the government claim Mahdawi was traipsing around the Upper Valley, confessing to strangers he had just met that he liked to kill Jews, but also that he abused drugs and his wife. Judge Crawford was openly skeptical of the government’s claims, accepting Mahdawi’s explanation for all three incriminating incidents raised by the government. The judge noted the FBI investigated the claims of the gun shop owner and gun enthusiast and took no action. “That nothing took place,” the judge said, showed “the two informants were not truthful.” Crawford noted that drugs seized from Mahdawi when he crossed the border from Canada into Vermont were in fact prescription medicines. He determined the domestic incident cited by the government was merely an argument between Mahdawi and his now ex-wife, who remains a close friend and supporter. In short, the judge found the government’s claims against Mahdawi were based on rumor and innuendo. Underscoring that adherence to the Constitution is not a partisan matter, Crawford cited the analysis and findings of two Supreme Court justices, and conservative icons, the late Justice Antonin Scalia and Justice Samuel Alito, in backing Mahdawi’s contention he was unconstitutionally singled out and detained for the content of his protected speech. Crawford compared the Trump administration’s policy of arresting legal residents such as Mahdawi “for stating their views on the political issues of the day” to the Red Scare of the 1920s and “the McCarthy period of the 1950s when thousands of non-citizens were targeted for deportation due to their political views.” Still, Crawford sounded hopeful, putting the current situation into some historical perspective. “The wheel of history has come around again,” the judge wrote, “but as before these times of excess will pass.” Hope he’s right.
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