Comparative Reflections on Mahmoud Khalil's Case

Mark Tushnet

The statute invoked in Mahmoud Khalil’s case brings to mind cases from other jurisdictions. That statute provides (in the part relevant here) that deportation is permissible if “the Secretary of State personally determines that the alien’s presence would compromise a compelling United States foreign policy interest.” Is such a determination conclusive? Or may it be reviewed under a presumably quite generous standard of reasonableness (that is, was it reasonable for the Secretary of State to conclude that Khalil’s presence would compromise a compelling foreign policy interest, with “compellingness” perhaps subject to a similar generous reasonableness standard)? 

During World War II the British government detained Robert Liversidge under a statute authorizing detention if the Home Secretary had “reasonable cause” to believe that a person had “hostile associations.” The House of Lords held that the statute required only that the Home Secretary subjectively believe that there was reasonable cause (Liversidge v. Anderson). A famous dissenting opinion by Lord Atkins would have held that the Home Secretary’s belief had to be objectively reasonable. I believe that the consensus among British scholars who have discussed the case is that Lord Atkins’s position was correct. 

In 1987 Singapore detained a number of activists in connection with what’s known as the Marxist conspiracy. The applicable statute provided for detention “if the President is satisfied with respect to any person that, with a view to preventing that person from acting in any manner prejudicial to the security of Singapore ..., it is necessary to do so.” Relying in part on Lord Atkin’s dissent in Liversidge, the Court of Appeal held that under the statute it was insufficient that the President was subjectively satisfied, etc.; rather, an “objective” test (something like “would a reasonable person conclude that detention is necessary to prevent he detained person from acting in a manner prejudicial, etc.”) had to be applied (Chng Suan Tze v. Minister of Home Affairs). 

That wasn’t the end of the story, though. The Court of Appeal decision was announced on December 8. By the end of January Singapore’s Constitution and Internal Security Act had been amended to make it clear that detention could indeed be based upon the President’s subjective satisfaction. I believe that the consensus among scholars who have discussed the case is that the episode taken as a whole doesn’t reflect well on Singapore’s adherence to the rule of law. 

Is the lesson from these cases that the US courts will probably find Khalil’s deportation legally supportable—and that the judgment of history is likely to be that such a decision was a mistake? (I once wrote about the law of emergency powers in the United States that we did indeed learn from our mistakes by not making the same mistakes again—instead we made new mistakes.)