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.)
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