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Memo on protesters cautioned that authority used to strip visas would face scrutiny
Action memos on pro-Palestinian protesters sent by government officials to Secretary of State Marco Rubio said the authority he used to strip their visas had never before been used and would likely face scrutiny, a government official testified in court Friday.
Rubio used what the government says is his authority to find someone deportable "if the Secretary of State has reasonable ground to believe that the alien's presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States," citing the Immigration and Nationality Act.
A section of a government memo that was read in court noted "it is likely that courts will closely scrutinize this determination" because the basis of it could be considered "protected speech."
MORE: DHS investigated over 5,000 student protesters listed on doxxing website: Official
The contents of the memo were revealed during an ongoing bench trial in which the Trump administration is accused of instituting a constitutionally illegal ideological deportation policy against pro-Palestinian protesters, including Columbia University's Mahmoud Khalil and Mohsen Mahdawi and Tufts University's Rumeysa Ozturk.
The lawsuit was filed by the American Association of University Professors and the Middle East Studies Association, which represents hundreds of professors and students across the country. An action memo sent by government officials to the secretary of state proposing Rubio strip Khalil and Yunseo Chung of their visas was cleared by 10 people and departments within 24 hours before it was sent to Rubio, John Armstrong, the senior bureau official in the bureau of consular affairs at the State Department, testified Friday.
The White House, Department of Homeland Security, State Department and Department of Defense had over 20 conversations about student protester visa revocations, most of which took place in March, Armstrong testified.
Armstrong also testified that he had conversations with people on the Homeland Security Council over the visa revocations, naming Homeland Security Adviser Stephen Miller and his deputy.
In a two-page memo from earlier this year outlining why Khalil should be deported, Rubio cited Khalil's alleged role in "antisemitic protests and disruptive activities, which fosters a hostile environment for Jewish students in the United States."
Asked about how officials identify what constitutes antisemitism, Armstrong testified Friday that he can't remember receiving "any concrete guidance" as to what can be treated as antisemitic, and also testified that he doesn't know of any of his deputies having received formalized training on what antisemitism is.
It's my understanding that "antisemites will try to hide their views and say they are not against Jews, they are just against Israel" -- but "it's a dodge" to hide their antisemitism, Armstrong said.
Support for a foreign terrorist organization or terrorist activity is grounds for a visa revocation, Armstrong testified, saying, "Support for Hamas will get your visa revoked."
Asked by plaintiffs attorneys, Armstrong also testified that criticizing Zionism, criticizing Israel's actions in Gaza, saying that the actions of the Israeli government are "worse than Hitler," saying "from the river to the sea," calling Israel an apartheid state and calling for an arms embargo could all be considered cause for removal under the executive order combatting antisemitism.
MORE: Mahmoud Khalil case: Ordered to show evidence, government asserts Rubio's authority
Armstrong, who personally authorized the decision to strip Ozturk of her visa, testified that he based the decision on her actions protesting Tufts' relationship with Israel and her "activities and association" with groups that are "creating a hostile environment for Jewish students."
That alleged association was based on an op-ed she co-authored with someone who is part of a student group that supported the call for Tufts to divest and cut ties with Israel -- a proposal that was made by Tufts Students for Justice in Palestine, a group which is now banned from campus.
DHS and Homeland Security Investigations found that Ozturk was not part of the activities that resulted in Tufts SJP's ban from Tufts, according to documents read aloud in court by attorneys. Nonetheless, Armstrong maintained that Ozturk had ties to Tufts SJP.
Ozturk's visa was revoked under a provision of the Immigration and Nationality Act that allows the government to revoke a visa for any reason, Armstrong testified.
On Thursday, Andre Watson, the assistant director for the national security division at Homeland Security, testified that he has made 10 to 15 referrals of student protesters to the Department of State for possible visa revocation since the establishment of the Tiger Team task force looking into student protesters.
He said he referred every individual on whom the Homeland Security Investigations task force has filed a report, including Khalil, Ozturk and Mahdawi.
After the conclusion of testimony on Thursday, U.S. District Judge William Young informed the parties of definitions he will be relying on while making a decision after the conclusion of the bench trial.
"Criticisms of the state of Israel are not antisemitism. They are political speech, protected speech," Young said.
Commentary on "conduct of the state of Israel, if it involves war crimes, involves genocide ... is protected speech with respect to our constitution," Young said.
While condemning antisemitism and saying the government should discourage antisemitism and hate against any group of people, he said, "Antisemitism ... is not illegal. It is protected under the First Amendment." MORE: Trial challenging administration's deportation of pro-Palestinian scholars gets underway
On the pivotal question of whether visa holders and lawful permanent residents have the same First Amendment rights as U.S. citizens, the judge said, "Probably they do."
Young also said criticizing the state of Israel "does not constitute pro-Hamas support."
After new evidence is entered on Monday, closing arguments will begin in the trial.
