AAUP v. Rubio
Update #8: The Government's Case Day 2
I’ve been virtually attending the trial in this case and providing digests of witness testimony and some brief impressions.
The government offered two witnesses today.
By way of reminder, one of the issues in the case is whether, assuming the government adopted and implemented an “ideological deportation policy” (IDP), Plaintiffs suffered an injury - specifically, that their speech was chilled. Plaintiffs put on several academics who testified about that issue.
The government’s first witness was called to rebut the argument that the policy, assuming it existed, chilled speech on Israel, Palestine, and related matters. The government’s witness testified about the expressive activities of the organizational plaintiffs (AAUP and MESA) during the period following the alleged implementation of the IDP. The source of this information was Google searches and review of the associations’ websites. The witness testified that the organizations’ events and expression regarding Israel and Palestine had increased since the alleged IDP was adopted. [Of course, one would expect as much, given the Trump Administration’s policies - including those affecting AAUP and MESA members]. This was not a very fruitful line of testimony. As Plaintiffs’ counsel noted, Plaintiffs do not claim that their own political speech has been chilled, but that the speech of their members has. Since this is a bench trial and not a jury trial, Judge Young has been somewhat flexible in terms of allowing the parties to put on evidence even though it is of little relevance. The judge did that here, as he acknowledged. He referred to the information as of “little relevance” and possibly “a line in [the government’s] closing argument.”
The government’s second witness, Andre Watson, offered more relevant substantive testimony. He was called to testify about how HSI and ICE generally enforce the nation’s immigration laws, including in the cases of international students and foreign scholars mentioned in this case. Here is a synopsis of his testimony:
Watson is the Assistant Director of ICE’s National Security Division, and has served in that capacity since 2020.
He testified that since 2003 HSI’s and ICE’s missions have stayed the same. Watson said that the priorities of presidential administrations have changed since he joined the agency, but that it legal authorities and overall mission - to protect national security and public safety - have not changed. He offered as examples that under President Obama there was more of a focus on organized crime and firearms trafficking than under the first or second Trump Administrations.
Watson testified that part of HSI’s mission involves enforcing Title 8, which is the Immigration and Nationality Act. He said that enforcement has mostly involved investigating potential crimes but “can” also include civil violations. It has included enforcement against individuals who are out of status or whose visas have expired or been revoked. Again, Watson testified this has been the case since he started in his position in 2003.
As for the relationship between national security and Title 8 enforcement, Watson mentioned aliens who make threats, have links to foreign terrorist organizations, or raise other public safety concerns. He related that in two past instances he could recall international students had been investigated and informed that their status would be revoked for “making threats.” He was not asked to elaborate, but said in one case the threat was communicated to a faculty member.
As far as other investigations relating to national security, Watson mentioned the Boston Marathon bombing and the San Bernardino terrorist attack, both crimes committed by aliens then lawfully present in the U.S.
Watson testified that to his knowledge the United States does not have a policy under which it targets individuals based on their speech. During his years of service, Watson said he is not aware of any removals from the U.S based solely on speech. He testified that he has worked under five U.S. presidents and that HSI’s primary mission and legal authorities have remained consistent over time.
Watson testified on direct that he was familiar with President Trump Executive Orders relating to foreign terrorism and national security, and an Executive Order focusing on anti-Semitic activity. He said the National Security Division sought to align its activities with the directives in the Orders. He testified that he did not understand EO to change HSI’s mission or authorities; did not change or alter tools for investigations.
Watson also shed light on why HSI had focused on campus protest activity. He explained that in March 2025 there was a meeting of agency senior leadership at which a “plan of action” was announced and developed to focus on aliens who participated in campus protests. As part of that plan, a unit within the Office of Intelligence was created and charged with processing leads regarding aliens in the who were participating in protest activities. There is no written document or directive concerning this action plan. The intelligence unit was directed to analyze leads and prepare reports analyzing the information in the leads, for possible transmission to the State Department. Watson testified that collaboration with the State Department in this manner was common in his work. The product of HSI’s analyses were “Reports of Analysis,” which were transmitted to the State Department along with a memorandum. These “packages” went to Watson before they were transmitted to the State Department. He testified that he would review the memo and ROA, and if he “approved” he signed the letter and sent it to State. The State Department would “sometimes” respond with an “action letter” notifying HSI of a visa revocation, at which point HSI and field officers would act.
Watson testified that his office was aware of the campus protests. He testified tht the volume of leads HSI received increased during the past six months. He said he has personally reviewed 20-30 referrals involving campus protesters.
Watson testified that he and his office analyzed and vetted international students (Ozturk, Chung, Khalil, and Mahdawi) and scholars (Kahn Suri) pursuant to this process. His understanding as to why they were all arrested was that their immigration status had changed.
On cross examination Watson testified as follows:
He seemed to resist the notion that he had to be “familiar with” Executive Orders to do his job - despite his direct testimony that he made sure his employees were aware of them and “aligned priorities” with them. [Note to witnesses: credibility depends on consistent testimony; it is not necessary of helpful to fight every question asked by the other side]
He conceded that HSI has been implementing a “new program” regarding campus protesters. He would not say the process used was new - for example, Reports of Analysis are commonly used. But Watson was told in March 2025 and thereafter to focus on protest activities that may have violated Executive Orders or U.S. laws. He testified that the “plan of action” was discussed at several meetings, indeed weekly in its initial stages.
Watson’s role in the process was to make referrals to the State Department when appropriate. He signed referral letters and these were sent to John Armstrong, head of the Bureau of Consular Affairs at State. The Secretary of State then made a decision whether to revoke visas. His understanding was that the State Department relied in part on a determination whether the presence of the alien was adverse to U.S. foreign policy interests.
Watson signed the letters regarding Khalil, Chung, Ozturk, Mahdawi, and Kahn Suri. He reviewed the intelligence analysis in each case, and recalls that some contained references to pro-Palestine views and anti-Israel views as well as pro-Hamas views and alleged anti-Semitic activities. He was impeached regarding the number of such referrals has has handled since March: at his deposition in June, Watson testified that he had reviewed between 10 and 50. He relied on the information in the ROA and HSI intelligence analysts when making referrals to State. Watson acknowledged that he made a referral in every case discussed in this proceeding.
Watson acknowledged that he does not know of HSI standards or definitions for determining whether activity is “anti-Semitic” or “contrary to the nation’s foreign policy,” even though these phrases were used in the letters he signed. He testified that his understanding of “anti-Semitic” activities would include support for Hamas, but also “associations, activities, or conduct that violate the INA or US law.” Watson was not informed that the foreign policy of the United States included “combatting anti-Semitism.” Watson testified that foreign terrorist activity was a primary concern. He conceded that by signing the letters, he had adopted their contents. But he also said that he defers to the intelligence analysts and the principal legal advisor concerning whether a referral should be made to the State Department.
Finally, Watson testified that visa revocations can but do not always result in arrests. Typically a “notice to appear” is issued, and arrest is not always the outcome.
******
My general impression was that both sides scored some points today. Watson was generally an effective witness in terms of emphasizing HSI’s and ICE’s core missions and testifying about the government’s consistency in terms of reliance on legal authorities and protocols. The government’s case depends, in large part, on showing there was no policy of targeting international students and foreign scholars based on their political expression. Like other government witnesses, Watson denied there is such a policy.
On the other hand, Plaintiffs were able to get Watson to confirm that HSI and the State Department had developed a new “action plan” to focus on processing leads concerning those involved in campus activism. Like other witnesses, Watson had a difficult time connecting the information in the Reports of Analysis relating to Ms. Ozturk and others to national security or foreign policy concerns. Watson’s work has involved undoubtedly serious threats including violent terrorist activities. The agency’s focus on student activists, while perhaps technically within their broad mission, came across as far afield of the Boston Marathon bombing and other threats to national security and public safety. The fact that the new “action plan” was not written down does not mean the federal government did not have a policy of targeting individuals based on their expression.
Still, the decisionmakers regarding any such policy likely work in the White House and upper echelons of the State Department. The witnesses who have been testifying at the trial are generally carrying out orders and directives and not making policies. Some have testified that they were told by superiors the action plan was a priority, which helps. The high-level meetings at which the “action plan” was developed are also helpful to Plaintiffs. But the Plaintiffs’ biggest challenge was, and remains, proving the “ideological deportation policy” exists.
******
After hearing testimony Judge Young addressed several matters.
As far the trial schedule, he noted testimony will conclude Friday and closing statements will be next Monday. The parties will need to file proposed “findings of fact” and “conclusions” of law two weeks from Monday, on August 4. Judge Young indicated earlier that he would issue a decision in the case sometime in September.
Judge Young also gave the parties some “guidance” on terminology for them to be aware of as they prepare their arguments, findings, etc. Regarding “anti-Semitism,” he distinguished sharply between discriminatory or other harmful acts based on ethnicity or heritage and protected political speech. He emphasized that much anti-Semitic speech is “not illegal” and is indeed strongly protected by the First Amendment.
Judge Young also addressed the Hamas attack on October 7, 2023 and the war between Hamas and Israel. He told the parties he was not going to define or second-guess the “foreign policy” of the United States, but that it was his understanding that both the Biden and Trump Administrations “aligned themselves closely with Israel.” Thus, his understanding is that the foreign policy of the U.S. is to ally with the State of Israel. He added that “criticisms of the State of Israel are not anti-Semitic;” again, these are political speech and protected by the First Amendment. He also said, “Saying that the conduct of the state of Israel involves war crimes or genocide is protected speech. Criticism of the state of Israel does not constitute “support for Hamas.”
Judge Young also addressed two “legal questions.”
First, he expressed the view that Executive Orders “do not have the force of law.” [The Plaintiffs may want clarification on that point. While they are not “laws,” Executive Orders direct governmental agencies and officials to take certain enforcement actions.]
Second, regarding whether a person who is lawfully present but not a citizen is entitled to the “same First Amendment rights as a citizen,” Judge Young’s answer based on his own research is “probably they do.” He emphasized he was referring only to “pure speech” and not threats of violence or unlawful conduct. [The question here is a close one which the Supreme Court has not directly addressed; I may do a separate post on it.]
Finally, Judge Young took “judicial notice” of the fact that Stephen Miller is the President’s “primary advisor on immigration matters.”
Testimony continues tomorrow.