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Guilt by Association

When speech becomes terrorism Wikimedia Commons

On his ninth day back in office, Donald Trump signed an executive order outlining his plan to crack down on the “explosion of antisemitism” across the United States, especially on college campuses, where “Hamas sympathizers” and “pro-jihadist” protesters had been allowed to run rampant. “We will find you, and will deport you,” a White House statement read. Less than two months later, plainclothes agents from the Department of Homeland Security detained recent Columbia University graduate and pro-Palestine activist Mahmoud Khalil outside of his New York apartment. Trump boasted it was the “first of many to come.” Khalil, a green card holder, was flown to an ICE detention facility in Louisiana over one thousand miles away from his pregnant wife, where he remains, his deportation case pending.

Secretary of State Marco Rubio justified Khalil’s detention without charge on the basis that he poses a threat to U.S. foreign policy interests due to his prominent role in last spring’s protests on Columbia’s campus against Israel’s genocidal campaign in Gaza. This is “not a free speech issue,” Rubio insists. But it is. Khalil’s arrest certainly marks a dramatic escalation, but casting protected speech as terrorism has long been a central strategy of the movement to crush Palestinian activism in every form.

In early 2024, a group of Israeli Americans sued two Palestinian advocacy groups, National Students for Justice in Palestine (NSJP) and American Muslims for Palestine (AMP), accusing them of aiding and abetting terrorism by organizing the widespread protests that followed Hamas’s October 7 attack. The plaintiffs—backed by two wealthy law firms, Greenberg Traurig and Holtzman Vogel, and the nonprofit National Jewish Advocacy Center—are a group of individuals who either survived or lost loved ones at the Nova psytrance music festival, where 364 people were killed after Hamas and other militants broke through the fence enclosing the Gaza Strip three miles away. Other lawsuits against NSJP have also been filed in several other states.

While the lawsuit could, at first glance, be seen as a misplaced quest for justice by bereaved and traumatized families, it is something else entirely. The complaint opens by imploring the reader, “When someone tells you they are aiding and abetting terrorists—believe them.” From there, it devolves into conspiratorial speculation, stringing together one tenuous connection after another to paint NSJP as an arm of AMP and a “propaganda machine for Hamas and its affiliates across American college campuses.” Like much of the fracas over the Gaza campus protests, the lawsuit diverts attention away from the actual war in Gaza. “By responding to these ridiculous claims, the message is not [about] affirming Palestinians lives and calling for an end to genocide,” one of NSJP’s lawyers, Abdel-Rahman Hamed, told me. “It becomes about smearing NSJP as Hamas. That’s the whole point of this.”

To connect NSJP to Hamas, the complaint points to a protest toolkit released by NSJP after October 7, which attracted controversy at the time for “celebrating” the attack as an act of resistance. It then constructs a spurious web of organizational ties dating back to the 1980s. The complaint traces alleged connections between the Palestine Committee, a supposed front for Hamas in the United States established in 1988, the Muslim charities Holy Land Foundation for Relief and Development (HLF), the Islamic Association for Palestine (IAP), and finally AMP. The complaint also claims—without evidence—that HLF and IAP “were both founded and controlled by members of Hamas’s senior leadership.”

But the plaintiffs’ main link between AMP and NSJP boils down to the 2010 U.S. Social Forum where AMP facilitated the first national convening of Students for Justice in Palestine, therefore “founding” NSJP. The complaint also points to Hatem Bazian as a key figure tying the two organizations. Bazian is a professor at the University of California, Berkeley, who, along with others, helped found SJP’s first campus chapter in 1993. In 2006, he cofounded AMP as an advocacy organization, which in part gives limited grants to student groups at high schools and universities, including SJP chapters, as well as other Muslim student associations. Even with this overlap, “anyone with any proximity to the Palestine movement in the U.S. knows these two are completely separate institutions, very different organizing approaches,” said Diala Shamas, senior staff attorney at the Center for Constitutional Rights.

Over the past thirty years, SJP groups have proliferated across campuses, and NSJP was formed to organize conferences and help provide more support through a national network. Though NSJP voted to create a centralized structure in 2023, it is not a formal legal entity. There is no national headquarters or leader, and the group has never registered as a nonprofit or filed tax documents. As such, the plaintiffs’ lawyers have had difficulty even serving the complaint on NSJP, a necessary first step to initiate a lawsuit by giving them a copy of the legal proceedings, and asked NSJP’s attorneys for assistance at one point. (Attorneys for the plaintiffs did not respond to request for comment.)

With little concrete evidence tying AMP and NSJP together, let alone to Hamas, the complaint dredges up a history of dubious prosecutions of Palestinian organizations in the United States to justify its allegations. In the early 1990s, the U.S. government began investigating HLF, the largest U.S. Muslim charity at the time, using warrantless surveillance at the behest of then-representative Chuck Schumer, then-attorney general Eliot Spitzer, the Anti-Defamation League, and the Israeli government—even though Hamas had not yet officially been designated a terrorist organization. Following the September 11 attacks, Muslim charities became prime targets for the country’s shock and anger. Using a 1990s terrorism statute that, among other things, prohibited the provision of “material support” to foreign terrorist groups, the George W. Bush administration prosecuted HLF and IAP, seizing on their contributions to charities in Gaza to make their case.

No evidence of direct contributions to Hamas was ever established, but both organizations were shuttered by 2008, and five of HLF’s leaders were sent to federal prison—where two still remain. Nearly twenty years later, the prosecutions remain a potent example for supporters of Israel even as human rights groups continue to document the numerous procedural and ethical errors with the cases that brought the organizations down. The parents of David Boim, an American killed in a Hamas attack in 1996, for instance, sued AMP in 2017 to collect damages awarded in the HLF conviction under the theory that all these Palestinian organizations are merely alter egos of each other, and all lead back to Hamas. (The Boim case is still pending.)

Though the United States boasts about its free marketplace of ideas, the modern First Amendment has evolved in part through the anxiety of foreign speech and ideas influencing American domestic politics, according to Genevieve Lakier, a professor of law at the University of Chicago. The quintessential example is the Red Scare, during which perceived communists and leftist sympathizers were hauled before government committees to be interrogated; many went on to lose their jobs. Courts wrestled with the issue, Lakier said, but by the 1970s and 1980s, “the general consensus view is that the First Amendment prevents the government from trying to interfere in freedom even of people who are articulating radical ideas.”

The last significant case in this area was the 2010 case Holder v. Humanitarian Law Project, in which the Supreme Court considered whether Americans could advocate for U.S.-designated terrorist groups without running afoul of the material support provision. The case involved a group of human rights organizations and activists in the United States who sought to engage with two separatist groups, the Kurdistan Worker’s Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), in pursuit of conflict resolution with the Turkish government. Since the PKK was a designated foreign terrorist organization, the plaintiffs worried they could be prosecuted under the material support statute, which prohibited providing “expert advice,” “training,” “service,” and “personnel.”

They challenged these provisions as unconstitutionally vague, which the Court ultimately denied. The ruling, however, declined to specify what exactly would count as material support. While the underlying statute applies to support given in coordination with or directed to a group, Lakier says it suggests the same would not be true of speech made independently—in other words, “advocacy in favor of those groups, say, rather than advice to them.” Today’s lawfare against pro-Palestine activists and organizations has thrived on the ambiguity.

Efforts to expand the definition of material support to encompass speech acts have proceeded in concert with efforts to cement any criticism of Israel as antisemitic. In recent years, many supporters of Israel have taken up the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism—“a certain perception of Jews, which may be expressed as hatred toward Jews”—and weaponized it. Kenneth Stern, the main drafter of the original definition, has publicly opposed this manipulation, criticizing IHRA’s transformation into “a blunt instrument to label anyone an antisemite.” Though the right has adopted this cause in particular—see the Heritage Foundation’s Project Esther, casting groups like AMP and Jewish Voices for Peace as part of the “Hamas Support Network”—individuals and institutions across the political spectrum have fallen in line. In January, Harvard University agreed to adopt the definition as part of a settlement of two federal lawsuits accusing the school of failing to prevent antisemitic discrimination and harassment.

Israel’s war against Gaza—in which over 48,000 civilians have been confirmed killed—has transformed the country into a rogue state in the eyes of much of the world. Israel is well aware it has lost control of the narrative. But it has strong allies on the right. Late last week, DHS arrested a second Palestinian student, Leqaa Kordia, and bragged about the “self-deportation” of Indian PhD student Ranjani Srinivasan. In a statement, DHS secretary Kristi Noem stated: “When you advocate for violence and terrorism, that privilege should be revoked, and you should not be in this country.” On Monday, the Department of Justice and the Federal Bureau of Investigations announced Joint Task Force October 7, which will investigate groups providing “support and financing to Hamas” and “acts of antisemitism.” With this chilling move, the federal government can go after anyone, regardless of citizenship, under the broadest interpretations of material support and antisemitism.

Elite academic institutions have chosen the path of anticipatory obedience. In the days after Mahmoud Khalil’s detention, Yale Law School suspended Iranian scholar Helyeh Doutaghi after an AI-powered website published a report accusing her of being a “terrorist”—one of many examples of Zionist websites doxing activists. According to student group Columbia University Apartheid Divest, Columbia University has expelled, suspended, or revoked the diplomas of around two dozen students involved in the encampments last year, in a craven capitulation to Trump. “Nobody can protect you,” Jelani Cobb, the dean of Columbia’s journalism school, warned his students. “These are dangerous times.”

The Democratic Party, which campaigned on the existential threat Trump posed to democracy, has offered little more than begrudging responses to acts of repression that rival, if not surpass, those of the McCarthy era. Indeed, several Democratic members of the House even voted late last year to advance a bill that would grant the president unilateral authority to revoke the nonprofit status from any organization it believed to be providing “material support” to terrorist groups. Even as thousands have taken to the streets across the country to protest Mahmoud Khalil’s detention, only fourteen House Democrats signed on to a letter demanding his release. Senate minority leader Chuck Schumer issued a wooden statement, reiterating the need for due process even though he “abhor[s] many of the opinions and policies that Mahmoud Khalil holds and supports.”

Democrats may have rallied against Trump’s plans for mass deportations, but when the basis for ejecting foreign students becomes pro-Palestinian speech, the party shows its true colors. The lawsuit against National Students for Justice in Palestine capitalizes on liberal hesitations and the right’s authoritarian zeal to smear pro-Palestine activists as terrorists in the quest to extinguish their cause altogether. Even if the plaintiffs ultimately lose, the burden imposed by the lawsuit may itself be the point. “It’s a game of attrition,” Hamed said.

The same can be said of other efforts to crush pro-Palestine activism, which are only ramping up. “The current repression is an effort to put the genie back in the bottle,” Lakier said. But “there’s no putting it back.”