Criminalizing Dissent in a Time of War: Free Speech Coalition Urges Federal Court to Rein In Government Power to Detain Anti-War Protesters

WASHINGTON, DC — As the U.S. government escalates military conflicts abroad and confronts rising anti-war resistance at home, a broad coalition of civil liberties organizations is warning that dissent itself is being treated as a threat.

In asking the Third Circuit Court of Appeals to rehear the case of Mahmoud Khalil—a legal U.S. resident, Columbia University graduate, husband to and father of U.S. citizens—the coalition cautions that the government is claiming the power to jail individuals for their political views while delaying any meaningful or timely judicial review. Khalil was among the first lawful residents targeted by ICE as part of the Trump administration’s crackdown on students engaged in nonviolent, anti-war protests critical of Israel’s war in Gaza.

Warning that a recent Third Circuit panel decision opens the door to government retaliation against protected political speech, the coalition—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—has filed an amicus brief in Khalil v. Trump calling on the full court to review and overturn the panel’s ruling. At issue is whether federal courts can immediately hear habeas corpus petitions challenging the government’s detention of an individual as being in retaliation for constitutionally protected speech before immigration proceedings have concluded. The panel ruled they cannot, effectively allowing the government to jail individuals for their speech indefinitely while insulating that conduct from timely judicial review.

“You don’t defend freedom by silencing dissent—especially in times of war,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “This is how rights disappear: when the government punishes lawful activity, delays justice, and normalizes the abuse of power. That’s not how constitutional government works—and if it’s allowed to stand, no one’s rights are secure.”

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 that allows the Secretary of State to remove noncitizens for speech deemed contrary to U.S. foreign policy interests. Khalil was transported to a detention facility in Louisiana, far from his family and legal counsel, and held for months while challenging his detention 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 his release. However, the government continued to pursue removal proceedings on alternate grounds, which Khalil maintains are pretextual and retaliatory. The civil liberties coalition’s brief warns that the Third Circuit panel’s ruling creates a dangerous precedent by allowing the government to detain individuals in retaliation for protected speech without meaningful judicial oversight for months or even years. By forcing individuals to wait until the conclusion of immigration proceedings to raise constitutional claims, the government is effectively permitted to silence speech first and answer for it later—if at all.

Jenin Younes with the American-Arab Anti-Discrimination Committee advanced the arguments in the Khalil v. Trump amicus brief.

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

Khalil v. Trump

Third Circuit Court of Appeals: Amicus Brief

Article posted with permission from John Whitehead