Was First Amendment Violated in Student Arrests? Trump Lawyer Won’t Say

During a Tuesday hearing on the fate of two international students facing deportation, an appeals court judge asked a key question of the Trump administration. Does it believe the students’ speech is protected by the Constitution?

A government lawyer, Drew Ensign, declined to discuss the issue. “Your honor, we have not taken a position on that,” he said, adding, “I don’t have the authority to take a position on that.”

Trump officials have said publicly that they are scrutinizing and seeking to remove noncitizen students who have been involved in campus unrest related to the war in Gaza. Lawyers for the students, Rumeysa Ozturk and Mohsen Mahdawi, have said the moves violate the First Amendment.

In avoiding the topic in the courtroom, at the U.S. Court of Appeals for the Second Circuit in Manhattan on Tuesday, Mr. Ensign illustrated one of the government’s key legal strategies as it tries to remove students, and immigrants more broadly, from the country: Move fast, battle hard on technical issues and save the key constitutional questions for later.

The strategy has confounded immigration lawyers and frustrated their advocates. It has also effectively slowed some cases, including that of Ms. Ozturk, who has been in detention in Louisiana for six weeks, where her lawyers say she is facing medical harm because of her untreated asthma.

Ms. Ozturk, a Turkish student seeking her doctorate in child development at Tufts University, co-wrote an opinion piece published in the school’s student newspaper critical of Israel’s conduct of the war in Gaza. She was handcuffed outside her apartment and taken into custody by masked federal agents on March 25.

The other student under discussion, Mohsen Mahdawi, was held in federal custody for about two weeks before being freed by a judge, who compared the current political climate to McCarthyism. The Trump administration has argued that Mr. Mahdawi’s presence in the United States harms its foreign policy goals and could “potentially undermine” the Middle East peace process.

The distinction between their two cases highlights a practical effect of the government’s tactics. Absent litigation of their core constitutional claims, the students’ fates have been left to be determined by the arbitrary question of how quickly their lawyers were able to ascertain where they were, and to file petitions to have them released.

Ms. Ozturk’s lawyer could not locate her for 24 hours after her March arrest. She and several other students, including Mahmoud Khalil, a legal permanent resident and Columbia graduate, were moved out of state to a Louisiana detention facility.

Mr. Mahdawi’s arrest came later, and his lawyers were able to find him more quickly, and file a temporary restraining order to prevent him from being moved.

The hearing on Tuesday occurred after the government petitioned to combine Ms. Ozturk’s and Mr. Mahdawi’s cases, and pause lower court decisions in both.

A Vermont judge has ordered that Ms. Ozturk be returned to his state, to determine whether she deserves release. The government is seeking to pause that order and also to regain its right to detain Mr. Mahdawi. It asked the appeals court to rule in its favor on both issues.

But the three judge panel — Susan L. Carney, Alison Nathan and Barrington D. Parker Jr. — took the opportunity to intently question the government’s lawyer, Mr. Ensign, on both cases, frequently interrupting him as he sought to answer their questions.

“Help my thinking, take a position,” Judge Parker asked Mr. Ensign after he initially declined to take a stance on whether the students’ speech was protected by the constitution. Mr. Ensign demurred, saying that the government was focused on jurisdictional rules, “not the underlying merits.”

Judge Parker asked when, in any hypothetical immigration case, First Amendment issues would be decided. Mr. Ensign said any such cases would first have to wend their way through immigration court before ending up in an appeals court.

Ms. Ozturk’s lawyers have accused the government of “forum shopping” by moving her to custody in Louisiana, where the appeals court is one of the most conservative in the country.

Federal agents detained Ms. Ozturk near her home in Somerville, Mass., then drove her through New Hampshire to Vermont before putting her on a plane to a detention center in Louisiana. Her lawyers have argued in court that federal agents were deliberately trying to hide her whereabouts from her lawyer, so she could be transferred to Louisiana before her lawyer could properly petition for her release. The government has said there were no beds available in detention facilities in New England.

While in detention her health has suffered; her asthma attacks, which used to last up to 15 minutes, now last for as long as 45 minutes, according to her lawyers. They said that one nurse had forcibly removed her hijab, and another told her that her illness was “all in your head.” Given the detention conditions, her asthma could become life-threatening, her lawyers have argued.

Asked why it had taken so long for Ms. Ozturk’s lawyer to locate her after she was detained, Mr. Ensign replied: “The government does not necessarily provide real time GPS data of every single person within its custody.”

Before her detention, Department of Homeland Security and U.S. Immigration and Customs Enforcement investigations concluded that Ms. Ozturk had “engaged in activities in support of Hamas, a foreign terrorist organization that relishes the killing of Americans.”

At a news conference following her arrest, Secretary of State Marco Rubio spoke about Ms. Ozturk’s detention. “We gave you a visa to come and study and get a degree,” he said, “not to become a social activist that tears up our university campuses.”

The evidence they have offered is Ms. Ozturk’s opinion essay, which criticized the Tufts administration for not implementing a student resolution censuring Israel.

Her friends said they don’t recognize the government’s version of Ms. Ozturk, who they said was hardly a public figure on campus, and who had been interested in understanding how children are affected by violence.

Ms. Ozturk’s lawyers have made a case to release her on humanitarian grounds, citing the risks to her health “alongside the deafening silence of the government’s failure to produce any justification for her detention,” according to her court papers.

Mr. Mahdawi only narrowly missed being transferred to Louisiana, according to court filings. He was detained last month immediately after passing the test to become an American citizen, and escorted into a black van. Not long afterward, he was taken to an airport in Burlington, Vt., where immigration officers tried to put him on a flight to Louisiana.

But the flight had already taken off. The agents appeared to Mr. Mahdawi to be visibly upset that they had missed it, according to court documents submitted by his lawyers. After they argued for his release in a Vermont district court, the judge, Geoffrey W. Crawford, freed him, although his immigration case has continued and he is still at risk for deportation.