Two bizarre weeks in a Boston courtroom and the threat to intellectual life in America… It is a feature of our intractable times that political conflict nearly always takes the shape of a conflict over the nature of reality.

By Charlie Tyson

It was the first day of a federal trial, in Boston, for a lawsuit brought by the American Association of University Professors (AAUP) and other academic organizations. The case contends that the Trump administration’s attempted deportations of noncitizens involved in pro-Palestinian advocacy — among them Mahmoud Khalil, a graduate student at Columbia University, and Rümeysa Öztürk, a graduate student at Tufts University — had violated the First Amendment and chilled the speech of noncitizen scholars.

As the first witness, a young philosophy professor, settled into the stand for cross-examination, the freshly caffeinated government lawyer, William Kanellis, scanned the courtroom. The jury box was empty. This was a bench trial: Judge William G. Young, an 84-year-old Reagan appointee with a genteel, avuncular manner, would serve as sole authority.

There are certain methods of lawyerly showmanship that may sway a jury but fall flat with a judge. Kanellis, as became clear across the two weeks of trial, has a flair for courtroom theatrics. He is prone to large gestures, such as a habit of reaching out his arms entreatingly to a witness while questioning them. A barely perceptible twang — “students” becomes “stew-dents” — further adds to an aura of telegenic folksiness.

Whether to please the learned judge, lull the professor-witness, demonstrate sympathy for the scholarly life, or pay tribute to some fondly remembered college class, Kanellis elected to begin his cross-examination on an unusually philosophical tack.

“You teach, among other things, about the philosophy of language?”

“I do,” said the witness, Megan Hyska, an assistant professor of philosophy at Northwestern University and a Canadian citizen who had testified that morning about how the detainment of noncitizen activists had led her to retreat from political speech.

“Continental school or analytic?”

“Analytic.”

“Analytic, so more Frege than Husserl?”

“Correct.”

“Very good,” Kanellis replied. Behind him, on the deep blue carpet that separates the bar enclosure from the public gallery, attorneys seated at long tables whispered, texted, and passed brightly colored sticky notes.

Analytic philosophy is known for delicate, sometimes maddeningly scholastic, acts of distinction-making. These distinctions can be so vigilantly subtle that they risk being dismissed as pedantic. At its best, however, the analytic tradition opens our eyes to significant differences that we might otherwise glide by. The philosopher J. L. Austin, for example, in developing a taxonomy of different kinds of utterances, alerts us to how saying can be a form of doing, as in a promise or a warning or a declaration of war. Of the three noncitizen faculty members who testified at the Boston trial about how Trump’s targeted deportations of pro-Palestinian activists had led them to self-censor, two were philosophers of language, attuned to minute distinctions concerning language’s uses and effects.

As the trial wound on, it grew apparent that the Trump administration, insofar as it has a philosophical orientation, might be described as more continental in flavor. The government seemed resistant to making any distinctions at all. None, that is, save for a single bright red line, what the Nazi jurist Carl Schmitt named as the only distinction that matters in politics, that of friend and enemy. Repeatedly, in testimony from senior immigration officials and arguments from government attorneys, crucial distinctions were obliterated in favor of a coarse lumping-together.

U.S. Immigration and Customs Enforcement and State Department leaders described how investigative reports on noncitizen students freely mingled known facts and claims made on social media; how criticism of Israel was taken, via strategic conflation, as evidence of antisemitism and support for Hamas; even how, in the clandestine, interagency process through which lawful residents are deemed “deportable,” the distinction between saying and doing — that old hobbyhorse of J. L. Austin — is undone, so that by some terrible alchemy, protected speech becomes punishable action.

The sole distinction to which the government hewed throughout the proceedings was that between citizens, who have rights, and “aliens,” whose rights are, in the words of government attorney Ethan Kanter, “context-dependent.”

There was only one slip-up. During the government’s opening arguments, Judge Young asked: “Do the public officials, the defendants here, agree that a noncitizen lawfully in the United States has the same constitutional rights under the First Amendment as a citizen?”

“Our position would be that the First Amendment does refer to ‘persons’,” replied Victoria Santora, a lawyer for the defense, “and that people in the United States share the same rights under the First Amendment.”

Moments later, she offered a correction: “I wanted to add one qualification to my answer to the question you posed at the beginning. I apologize if I misspoke earlier. But I do want to say that there are nuances to the First Amendment.”

“Like what?” Judge Young asked.

“I’m sorry?”

“Like what? What are the nuances?”

“The nuance,” Santora tried, “is that this context involves issues of national security, foreign policy, immigration enforcement.”

Two weeks later, delivering the government’s closing arguments, Kanter was crystal clear. “The answer to the question of whether aliens and citizens have equivalent rights under the First Amendment is no.”

The plaintiffs were not permitted to play in court the full video of Öztürk’s arrest, in daylight, by ICE. But it’s safe to say that everyone in the room had seen it: the man walking up to her on the sidewalk and grabbing her hands; the masked agents circling her, pocketing her phone, stripping off her backpack, handcuffing her, and leading her to an unmarked car. “The answer to the question of whether aliens and citizens have equivalent rights … is no.”

It is a feature of our intractable times that political conflict nearly always takes the shape of a conflict over the nature of reality.

One of the central questions of the trial was whether the Trump administration is implementing an “ideological deportation policy,” revoking student visas and arresting noncitizens because of their pro-Palestinian views. The academic organizations suing the government infer the existence of this policy from several facts. First, there have been high-profile detainments of noncitizen students, like Kahlil and Öztürk, presumably for pro-Palestinian advocacy. (Öztürk’s only sin, so far as anyone knows, was to help write an op-ed in the Tufts student paper criticizing the university’s response to the war in Gaza.)

Second, the government has boasted about cracking down on campus protesters. After President Trump signed an executive order on antisemitism, the White House released a fact sheet issuing a warning to “all resident aliens who joined in the pro-jihadist protests”: “We will find you, and we will deport you.” In March, Secretary of State Marco Rubio confirmed that his department was revoking visas of students engaged in pro-Palestinian protests. To carry out this crackdown, the government redirected resources away from priorities such as narcotics, assembled a specialized team focused on student protesters, and relied on rarely used legal provisions to revoke visas.

In court, the government’s response was simple. They denied that such a policy exists. As for scholars who feared their speech might make them vulnerable to deportation, such worries, the government advised, reflect a compound of grandiosity and paranoia. Professors are smart, but they do not inhabit the real world. There is a kind of overheated imagination, the government’s lawyers suggested, that comes from living too much with concepts and ideas, rather than hard facts. For the truth is there is no policy, no targeting of protected speech, nothing to worry about at all. The dispute about the alleged policy, as the government framed it, is not semantic (concerning, say, the difference between concerted government action or a change in administrative priorities vs. an official “policy”). It is ontological, a disagreement about what can be said to exist.

“Your Honor, this week you’ll see that plaintiffs’ witnesses are academics,” Santora, the raven-haired government lawyer, said in her opening statement. “You’ll learn that they work in the realm of ideas, concepts, theories, and hypotheses. But you’ll see too that their case is theoretical and hypothetical.”

“So if plaintiffs are presenting a theory, a conjecture, what’s the reality?” she continued. “The reality is what the government will present in this trial. The work of the government witnesses in this case is grounded in reality … the sober reality of protecting our national security.”

The government’s closing arguments, presented by Kanellis, put the point more colorfully. “I can’t help but be reminded of a classic story in literature about two adventurers crossing Spain in the 17^th century,” he said. “Just as Don Quixote of La Mancha imagined that windmills were monsters, plaintiffs in this case imagined that the lawful arrests of individuals pursuant to laws and standards that have existed for up to 70 years amount to some grand government conspiracy.” As he spoke, he gestured toward a slide which projected, in enormous type, the words “Illusion vs. Reality.”

Don Quixote is a story about a man who mistakes fantasy for reality, literature for life; but it is also a story about false heroism. As Kanellis described the madness of jousting with windmills, it occurred to me that the plaintiffs could have cited the same passage in their favor. They might have argued that much as Don Quixote took windmills for giants, so too have government leaders taken students for jihadists, all while applauding themselves for keeping the country safe.

The Trump administration presented itself, in Boston, as guardians of reality. Immigration officials cannot afford to dwell in the lofty clouds of academic theorizing. Each day they are instructed in the “sober reality” of national security.

But once those officials took the stand, it became clear that the government’s reality wasn’t so sober after all. In March, ICE created a special task force, the “Tiger Team,” to investigate student protesters. On the witness stand, Peter Hatch, who leads the Department of Homeland Security’s Office of Intelligence, assured the judge that the name was not meant to intimidate. “We’re nerds,” he said. “We’re not ferocious.”

The Office of Intelligence’s traditional focus is on transnational criminal networks. Approximately 1,000 investigative analysts research such areas as human trafficking and child exploitation. But in March, Hatch got new orders from senior Homeland Security officials: Investigate pro-Palestinian protesters, and do it fast.

Reallocating analysts from counterterrorism, cyberintelligence, and other units, the Tiger Team produced between 100 and 200 reports on noncitizen protesters and shared them with the State Department to guide decisions on deportation. In his testimony, Hatch stressed the disinterested nature of these reports. They “should have a lot of factual information about the subject and only factual information.”

The process he described, however, was an unholy union of right-wing influencers, online trolls, and the world’s most formidable national-security apparatus. Of the names of protesters given to the Tiger Team, most — more than 5,000 — came from Canary Mission, a website that publishes the names of students and faculty allegedly involved in antisemitic activity. Betar, another shadowy pro-Israel group, also supplied identities of protesters it believed should be deported. The reports of analysis the Tiger Team generated appear to reproduce claims from Canary Mission. The report for Öztürk, for example, included her Canary Mission profile as an attachment, along with her op-ed for the Tufts student daily.

The reports also include statements made by others about individual protesters. A report on Mohsen Mahdawi, a Columbia student detained by ICE in April, included a third party’s X post accusing Mahdawi of being pro-Hamas based on an interview he did with “60 Minutes.” (Hatch conceded that there’s no indication that the analyst reviewed the “60 Minutes” footage.) A report for Badar Khan Suri, a postdoctoral fellow at Georgetown University detained by ICE in March, includes an X post by the right-wing social-media activist Anna Stanley, a self-described “investigator” who posts frequently about Islamic extremism. Asked about this inclusion, Hatch said, “I’ll note that the analyst properly included where the post came from, who posted it, and … factually represented what was posted.” In other words, so long as the analyst deems it relevant and cites the source, any scurrilous shred of social-media gossip can be gathered for Marco Rubio’s eyes.

These reports were reviewed, approved, and shared with the State Department, which has the authority to revoke visas. Once a visa is revoked, the subject is eligible for arrest, detainment, and deportation.

The Trump administration has, in recent months, revoked more than 1,500 student visas. The work of the Tiger Team, however, has led to fewer than 20 arrests of protesters. In closing arguments, the government seized on these measly numbers. “That is not a policy, Your Honor,” Kanellis said. “This is not even a statistical anomaly.”

Still, the nature of those arrests — carried out by plain-clothed ICE agents who drive unmarked cars and don masks at will — bears comment.

The four ICE agents who took the witness stand all had the same look — firm jawline, slicked-back hair — and they all said the same thing: that they’d received orders from on high to prioritize an arrest of a student protester, and that they’d never before seen an arrest based on similar grounds. The officer in charge of Khalil’s arrest recalled, “At some point I was made aware that the secretary of state and/or the White House had an interest in Mr. Khalil.”

In their testimony, the ICE agents were surprisingly forthcoming, in contrast to the department’s bureaucrats, who tended toward evasion. (One senior ICE official, for example, when asked whether his division was concerned with antisemitic activity “only so far as it demonstrates support for a designated terrorist organization,” pronounced, in a marble-mouthed marvel of contorted phraseology, “That could be a trigger in reference thereto.”) The exception was the subject of mask-wearing. Officers’ answers to the question of why ICE agents are permitted to wear masks ranged wildly: undercover work, health concerns, safety concerns, fears of doxxing, a noble desire to shield their families from danger.

“Isn’t that strange?” said Judge Young on the last day of trial. “I don’t know of a single law-enforcement agency in the United States that permits their members, apparently at their option, to wear masks when carrying out their duty. Not one.” In the 19th century, he went on, U.S. marshals tasked with enforcing “an odious law of the United States, the Fugitive Slave Law,” were killed in the line of duty. “None of them ever wore masks.”

William Young has served as a district judge in Boston for 40 years. He has, in that time, achieved recognition for the moral seriousness with which he approaches his role. In an anecdote he is fond of recounting, he describes meeting the four-year-old grandchild of a court staff member. Kneeling down in his robe, Young said to the child: “Do you know what a judge is? A judge is a teacher of the law.” (To which the child replied: “Then why do you wear a dress?”) In the courtroom over which he presides, his father’s maritime paintings hang on the wall.

Young is known for his faith in the fact-finding power of trials. Over two weeks in July, this belief came under strain, as the proceedings grew mired in a documents dispute.

As part of the discovery process, the AAUP’s lawyers had requested internal documents up and down the chain of command in the Departments of Homeland Security and State. The government invoked various kinds of legal privilege to keep the documents sealed. They asserted privilege over more than 300 documents submitted to the court, including reports on protesters, referral letters between Homeland Security and State, and communications among senior government officials.

The problem was that these were precisely the documents that seemed likely to shed light on the trial’s central question: Had the government’s immigration-enforcement procedures targeted constitutionally protected speech? The defense, Judge Young said from the bench, had taken a “very aggressive position” regarding privilege. He ruled that the government had waived privilege over documents submitted in camera (for the judge’s eyes only), and he instructed them to disclose the material to the plaintiffs.

The tug of war over confidentiality soon spilled over into open court. One government lawyer objected to a question about the makeup of the Homeland Security Council, saying that the identity of the council’s members is privileged. (The council’s membership is listed on both Wikipedia and an archived government website.) At one point in Hatch’s cross-examination, Alexandra Conlon, a lawyer for the plaintiffs, projected the report on Öztürk on a public screen.

Kanellis, the government lawyer, leapt to his feet. “Whoa, whoa, whoa — take it down.”

“Have in mind that I’m presiding here,” Young admonished. “No one just shouts orders to anyone in this court. I try not to. And you won’t.” The document was taken off the public screen.

Of all the government officials called to testify, possibly the most crucial witness expected for the plaintiffs’ case was John Armstrong, the head of the State Department’s Bureau of Consular Affairs. The State Department holds decision-making authority over visa revocations. Much of the case might rest, then, on what factors Armstrong considered in his decisions about who was “deportable.”

By some strange chance, however, it was scarcely a minute into Armstrong’s cross-examination when the documents war came to a head.

“Good afternoon, Mr. Armstrong,” Conlon began. “So, you were asked—”

“Wait. Wait a minute,” Judge Young interrupted.

Young had at that instant received an order from the First Circuit Court of Appeals. In response to a petition by government attorneys, the appeals court had ordered a stay of any further disclosure of documents the government deemed privileged.

Armstrong’s cross-examination was reliant on privileged documents. He returned to Washington, D.C. And Judge Young was left, in Boston, to manage an evidentiary procedure now governed by new constraints.

“Trials are living things,” Young had opined from the bench a few days earlier. Now, he spoke of the possibility that the process of disinterested fact-finding for which he’d held high hopes might be collapsing in on itself. The government’s position, he commented, “is they were snookered, and I got the documents just to disclose them. Well, that’s not so.” He declared his resolve to consider the documents in making his judgment. “I am going to look at the core documents,” he said. “If the Court of Appeals were to instruct me otherwise … I would seriously have to consider recusal.” He asked the appeals court to lift the stay.

“You said you had feelings in reaction to what you interpret as the ‘ideological deportation policy’,” Kanellis said. He was cross-examining Bernhard Nickel, a German citizen and a philosopher of language at Harvard. Nickel had testified that after learning of Öztürk’s arrest, he’d pulled back from political activism, was no longer attending protests, and had canceled international travel.

“I want to ask you about how you felt,” Kanellis said. “Did you have anxiety?”

“Yes.”

“You know what Kierkegaard said about anxiety, right?”

“Actually, I don’t,” said Nickel. “I’m not that kind of philosopher.”

“Angst ist der Schwindel der Freiheit,” Kanellis declaimed. “That means, ‘anxiety is the dizziness of freedom.’ Did I translate that correctly?”

“I don’t even speak Danish, you know,” Nickel cautioned. “So, to the extent that’s a German translation of Danish and into English, close enough.”

“Let me ask you,” Kanellis pursued, “do you disagree with that sentiment?”

“I don’t even know what that means,” said Nickel.

The noncitizen faculty members who testified that the detainments of pro-Palestinian students and scholars had frightened them into silence faced two large rhetorical difficulties. First was the burden of presenting their fears as rationally grounded, rather than as cases of Trump Derangement Syndrome. The relation between rationality and the emotions is philosophically complex enough in the seminar room. In the courtroom, the government’s counter-examination oscillated between Kierkegaardian existentialism and blunt literalism.

“You aren’t privy to the internal communications of the United States government regarding the arrests and revocations of visas of students?” Kanellis asked Hyska, the Northwestern philosopher, as if she could have no other basis for thinking that the government was targeting noncitizens on ideological grounds.

“In the 30 years that you’ve been in the United States, has anyone at the federal government expressed to you that they have been monitoring the political speech that you’ve engaged in?” he asked Nickel, as if the government were in the habit of informing its targets of surveillance.

Second was the challenge of dramatizing intellectual work, since aborted work was claimed as evidence of a chilling effect. Hyska presented an op-ed she had drafted but decided not to publish. Nadje Al-ali, an anthropology and international-studies professor at Brown University, described an article she had begun to conceptualize but not yet write — a feminist critique of Hamas — before dismissing the project as too risky. “I started to think about it,” she said, “and started to do some reading” — an honest yet inevitably underwhelming description of any essay’s early stages.

The harms described by the noncitizen scholars — canceled research trips, abandoned projects, withdrawal from political activity — suggest a politically sponsored degradation of intellectual discourse. Yet the distance between these harms and those suffered by detainees like Öztürk is hard not to see. The government’s strategy, in closing arguments, was to question why the professors had got involved in the first place. “The AAUP has 50,000 members,” Kanellis remarked. “And yet not a single member was arrested or deported.” Even in a lawsuit brought by the AAUP, the scholars seemed orthogonal to the main action.

Nevertheless, the role played by academics in this case reflects, it seems to me, the ideal position scholars might assume in society at large: ostensibly marginal, yet capable, by extending a protective arm, of bringing crucial facts to light.

Aweek after the stay interrupted the proceedings, the defense agreed to let Armstrong’s cross-examination go forward. (The appeals court would deny the government’s petition, and lift the stay, later the same day.) At last, we would learn about the attitudes governing visa revocations and deportation actions.

Armstrong assumed his position as head of the Bureau of Consular Affairs in February, after a long career in the Foreign Service. In his first months on the job, he spoke with Stephen Miller and others in the White House as many as 20 times concerning student visas, he confirmed, and spoke by phone with members of the Homeland Security Council about visa revocations.

The United States, said Armstrong, is “opposed to antisemitism both in the wider world and in our great country” and has been for “the over 30 years I’ve served the American people.” Trump’s executive order on antisemitism merely “codified long-term policy.”

Conlon asked if the State Department provided any guidance as to what speech or conduct should be treated as antisemitic. There is no definite standard, he explained, but “there’s a common understanding in our culture of what antisemitism is.”

“What do you think is the common understanding of what ‘antisemitism’ is?” interposed Judge Young.

“Antisemitism,” said Armstrong, “is unjustified views, biases, or prejudices or actions against Jewish people, or Israel, that are the result of hatred towards them.”

“In other words,” Conlon pressed, “in your understanding antisemitism includes hatred or prejudice against Israel and the Israeli people, right?”

“In my understanding, antisemites will sometimes try to hide their views and say they’re not against Jews, they’re just against Israel, which is a farcical argument in my mind. It’s just a dodge.”

Conlon darted to the point. Does the State Department have a policy to revoke visas based on political viewpoints if, say, the viewpoint is support for a terrorist organization?

“Yeah,” said Armstrong. “Support for Hamas will get your visa revoked.”

Conlon asked about the phrase “from the river to the sea, Palestine will be free.” Would that statement qualify, in the eyes of the State Department, as support for a terrorist organization?

“It’s basically calling for genocide of all Israelis,” Armstrong replied, “because there’s no space for Israelis in that ‘river to the sea.’” Other common pro-Palestinian statements, such as calling Israel an “apartheid state” or calling for an arms embargo on Israel, could also be construed as supporting terrorism, he confirmed, and factor into a visa revocation.

At a certain point he appeared to tire of the line of questioning. “This is not a mundane thing,” he said. “If we get this wrong, we get the Molotov cocktail attack in Colorado. If we get these sort of things wrong, you get the Boston bomber. If we get this stuff wrong, you get 9/11.”

It was Armstrong who personally decided to revoke Öztürk’s visa; he said he “thought long and hard” about her case. While reading the memo summarizing the evidence on Öztürk, he wrote in the margins: “actions not words.” In other words, he didn’t revoke Öztürk’s visa because of her op-ed, but because of her “activities and associations, which are not speech.” (The First Amendment’s guarantee of the right to assemble goes unmentioned in the trial transcript, even by the plaintiffs.)

Actions, not words; conduct, not speech. But the only evidence Armstrong could point to regarding Öztürk’s “associations” was her op-ed, in which she endorsed a proposal that Students for Justice in Palestine, a banned student group, had also supported. She was “clearly involved” with the banned group, he said. Why else would she write an op-ed making common cause with them?

By the end of his testimony, he was led to the view that perhaps words were a form of action after all. “Writing — I suppose one could consider that an action,” he reflected. “I think it was more indicative of her motivation … to create a hostile environment for Jewish students.” Saying is doing, with implications J. L. Austin never dreamed of.

Seen from the front, the John Joseph Moakley Courthouse, in Boston’s waterfront Seaport district, is an imposing structure of red brick capped by a grand rotunda. Though impressive for its symmetry and scale, it is not, at first glance, an exceptional civic building. It is only from behind, the side facing the water, that the building’s true character comes into view. A huge glass curtain wall eight stories high, curving inward and sloping backward, luminously transparent, dominates the back façade. Viewed from Boston Harbor, the rotunda’s resemblance to a lighthouse is unmistakable.

Near the end of the trial, during the morning recess, I stepped out of the courtroom to see three window-washers suspended from ropes a hundred feet in the air, clinging to the building’s glass exterior. With sloshing buckets they moved crab-wise across the glass, cleaning the large slanted panels.

We are at an early phase in America’s new regime of immigration enforcement. Trump’s “Big Beautiful Bill” allocates $30 billion to hire new ICE personnel and $45 billion for new immigration detention centers. As for the AAUP case, it seems likely, regardless of the outcome, to be appealed.

It is a good time, then, to reflect on something that window washers know. They know this: Transparency is won only through effort and risk.

https://www.chronicle.com/article/can-academic-freedom-survive-the-surveillance-state

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