Appeals Court Lets Government Detain Anti-War Political Protesters for Speech—as Judges Warn Free Speech and Habeas Corpus Are at Risk
WASHINGTON, DC —In a major setback for free speech and judicial oversight, the U.S. Court of Appeals for the Third Circuit has refused to rehear the case of Mahmoud Khalil, a lawful U.S. resident detained after engaging in anti-war protest activity critical of U.S. support for Israel’s military actions in Gaza. Khalil was among the first lawful residents targeted by the Trump administration for his political views.
In a blistering dissent joined by three federal judges, the court’s refusal to reconsider the case was condemned as a dangerous abandonment of the judiciary’s constitutional role—one that could allow the government to jail individuals for protected political speech while delaying meaningful judicial review for months or even years. The dissent warned that the Third Circuit’s ruling effectively allows the government to silence speech first and answer constitutional questions later—if at all—while stripping federal courts of their traditional role in protecting constitutional rights. The judges further cautioned that the decision “imperils the civil liberties” not only of Mahmoud Khalil, but of similarly situated noncitizens across the country.
“What makes this ruling especially dangerous is that the judiciary is effectively being told to stand aside while the executive branch targets political speech,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Once courts stop acting as a check on government power, every constitutional liberty is at risk.”
Mahmoud Khalil, a lawful permanent resident and graduate of Columbia University, was arrested by federal agents in March 2025 after engaging in nonviolent protest activity critical of U.S. foreign policy and Israel’s military actions in Gaza. Although he was not accused of any violence or criminal wrongdoing, the government sought to detain and deport him under a rarely used statute allowing the Secretary of State to remove noncitizens for speech deemed contrary to U.S. foreign policy interests. Khalil was arrested at his home without a warrant in front of his pregnant wife, transported across the country in shackles to a detention facility in Louisiana, and detained for more than 100 days while challenging his confinement in federal court.
A federal district court later found that the government’s actions likely violated due process when combined with First Amendment protections and ordered Khalil released. However, a divided Third Circuit panel ruled that federal courts lack jurisdiction to immediately hear Khalil’s constitutional challenge while immigration proceedings are ongoing, effectively forcing him and others similarly situated to wait months or years before courts can meaningfully review claims that their detention was retaliatory and unconstitutional. In dissenting from the court’s refusal to rehear the case, Judge Krause warned that the judiciary cannot fulfill its constitutional role “if we write ourselves out of relevance and leave the Executive Branch to check itself.” The dissent further warned that the ruling undermines habeas corpus protections and risks leaving detainees without any meaningful avenue for timely judicial review. Warning that the ruling opens the door to government retaliation against protected political speech while shielding those actions from timely judicial review, a broad coalition of civil liberties organizations—which includes the American-Arab Anti-Discrimination Committee, FIRE (Foundation for Individual Rights and Expression), PEN America, The Rutherford Institute, and the First Amendment Lawyers Association—had filed an amicus brief in Khalil v. Trump urging the full Third Circuit to overturn the panel’s ruling.
Jenin Younes with the American-Arab Anti-Discrimination Committee advanced the arguments in the Khalil v. Trump amicus brief.
The Rutherford Institute, a nonprofit civil liberties organization, defends individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.
Case History
March 20, 2025 • Deporting Non-Citizen Protesters Sets a Dangerous Precedent of Punishment and Retaliation for All Americans
June 17, 2025 • Trump Administration Accused of Using Deportation Powers to Punish Protesters, Chill Political Speech
June 25, 2025 • Judge Orders Release of U.S. Protester Detained for Political Speech
April 10, 2026 • Free Speech Coalition Urges Federal Court to Rein In Government Power to Detain Anti-War Protesters
Khalil v. Trump
Third Circuit Court of Appeals
Mahmoud Khalil v. Donald Trump
New Jersey District Court
- Amicus brief
- NJ District Court: Initial Ruling
- NJ District Court: Concluding Ruling
- Trump Admin. Letter Refusing Release
- NJ District Court: Order Denying Release
- NJ District Court: Release Order
Article posted with permission from John Whitehead
