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Immigration law is a zone of exception where many American constitutional standards, the supposed safeguards against government abuse, simply do not extend. And it is this zone of exception that has been crucial to building the United States’s growing infrastructure of fascism. Within this zone, immigrants might be considered subject to civil law; but, as Immigration and Customs Enforcement (ICE) raids across American cities have long shown, targets can be raided by force, subjected to state violence, and kept in prisons euphemistically called detention centers. The constitutional protections afforded to US citizen criminal defendants simply do not apply.
The danger of such legal exceptions is that they grow incrementally, eroding rights along the way. Those in power see loopholes as instruments of expanding their authority. This is evident in the Trump administration’s weaponization of immigration law against Palestinian and Palestine solidarity student activists who led protests or wrote opinion pieces against Israel’s genocide in Gaza—effectively using law to silence dissent. One especially egregious example is the case of Leqaa Kordia, a 33-year-old Palestinian immigrant who ICE detained in March 2025. The US Department of Homeland Security (DHS) cited her involvement in protests near Columbia University while accusing her of providing material support to Hamas for wiring money to relatives in famine-stricken Gaza, a “national security” matter. In February 2026, nearly a year after being detained, she collapsed in her detention facility and suffered a seizure. She was hospitalized and moved to an undisclosed location, causing family members and friends to panic. Her release finally came after a year of her detention, but she could still be deported as her green card petition awaits hearing. How did we get to this point?
“Counter-Terrorism,” a Seed of Fascism
The abuse of immigration law to broaden government powers has rested on alarmism about the threat of terrorism, which is selectively defined and posed as a purely foreign phenomenon. Consider how, in May 2000, Steven Emerson—a pro-Israel advocate and self-proclaimed terrorism expert—testified before Congress during a hearing about a bill to repeal the government’s use of “secret evidence” in deportation proceedings against non-naturalized immigrants to the United States. The government was presenting secret evidence to the court—that is, without the subjects of deportation present—claiming the secrecy was needed to safeguard intelligence and protect national security. This left the targets of removal proceedings unable to challenge the evidence against them. (Instead, the courts could require the government to share redacted versions or declassified summaries.) This practice, despite violating the basic values of the rule of law, was codified in two pieces of legislation passed in 1996, one of which was the Antiterrorism and Effective Death Penalty Act (AEDPA).
There was something deeply ironic about Emerson speaking to defend AEDPA. He had gained notoriety among Arab Americans for his embarrassing punditry in the wake of the devastating Oklahoma City bombing in 1995. He speculated that the bombing had the hallmarks of Middle Eastern–style terrorism, suggesting the culprits were Arabs. The bombing turned out to have been perpetrated by white men, military veterans, who were angry about the US government’s bloody raid on a cult in Waco, Texas; the Ruby Ridge standoff; and other acts they saw as government overreach against personal liberties. But Emerson had a larger agenda to turn the machinery of the state against Palestinian activists. In response to the Oklahoma City bombing, Congress proposed the antiterrorism bill that started the legislative birth of AEDPA, signed into law a year after the bombing by Democratic president Bill Clinton.
But by the time of the 2000 hearing on secret evidence, there had been several high-profile cases directed mainly against Palestinian noncitizens, some of whom were outspoken activists. Though Emerson’s presumption that the bomb that killed so many in Oklahoma City was a Middle Eastern conspiracy proved fantastical, the government used the law to seek the removal of Arab and Middle Eastern immigrants who were politically outspoken. In response, a broad coalition of ethnic advocacy organizations and immigrant and civil rights groups mobilized against the use of secret evidence. As a result, Representative David Bonior from Michigan introduced HR 2121, the Secret Evidence Repeal Act of 1999.
It was this bill—designed to end the use of secret evidence—against which Emerson was testifying. Emerson told Congress that the brouhaha over secret evidence allowed in AEDPA missed the point, since “classified information was used against noncitizens suspected of threatening national security for more than five decades.” Put another way, there was nothing new regarding the state’s abdication of basic due process against immigrants, a denial justified by the imperative to defend “national security.” Emerson was pleased that HR 2121 failed to pass and that AEDPA’s secret evidence remains intact as a blunt instrument to use against immigrants and especially those who dare to be outspoken. This legal architecture, it must be noted, preceded the September 11, 2001, attacks.
Signed into law by a Democratic president, Bill Clinton, AEDPA is now one part of the bipartisan infrastructure that the Trump regime can exploit to repress dissent to ruthless ends. And it extends the larger zone of exception that punishes free speech and reduces the recourses available to detained immigrants and criminal defendants, further eroding the rights of noncitizens and citizens alike.
AEDPA’s Provisions
Among the act’s stated purposes was “to deter terrorism [and] provide for an effective death penalty”—measures showing the intersection of antiterrorism and “tough on crime” racism. The act made it more difficult for death row inmates—who are disproportionately Black and Latino—to gain access to the courts through writs of habeas corpus, a Constitutional right. This was the Clinton presidency at its “furthest point of its most rightward triangulation.” Even Republican legislators found these steps extreme and proposed an amendment to walk them back, but Clinton preferred the act as it was.
AEDPA’s sweeping terrorism provisions reshaped the legal landscape of civil liberties in the United States. Central to these was the designation of Foreign Terrorist Organizations (FTOs) by the Secretary of State, a political procedure given legal power. AEDPA criminalized the provision of “material support or resources” to such groups (the statute under which Kordia was charged for sending money to her relatives). Material support was more than just monetary, however. This prohibition extended to humanitarian aid that could offset expenses for FTO groups, and furthermore, even to nonviolent advocacy that could be construed as supporting these groups—a blow to the first amendment’s promise of robust political speech.
Of course, the Secretary of State’s designations followed no clear legal procedures, reflecting foreign policy aims rather than objective standards. Members of designated groups had no legal remedy to challenge the designations even if they were made on factually dubious or incomplete grounds.
AEDPA’s material support provisions have chilled First Amendment rights, particularly freedom of speech and association. By criminalizing activities such as fundraising for humanitarian aid or engaging in political advocacy for designated groups, the act blurred the line between legitimate expression and criminal conduct. This dynamic was starkly illustrated in Holder v. Humanitarian Law Project (2010), where the Supreme Court upheld the constitutionality of prohibiting even peaceful advocacy aimed at promoting lawful behavior among FTOs. This case revealed the absurdity of the provision. Training an FTO, in this case the Kurdistan Workers’ Party, to use international law to seek remedies for their grievances instead of violence was deemed punishable “material support.” The restriction on free speech was justified, absurdly, on national security grounds. This dual standard undermined core democratic principles and fostered a climate of self-censorship among activists and organizations wary of triggering material support statutes. In effect, AEDPA transformed political expression into a potential liability, eroding the robust protections traditionally afforded under the First Amendment.
Further, AEDPA restricted judicial review of deportation orders. These measures effectively stripped many immigrants of procedural safeguards put into place to limit overzealous government actions against noncitizens. The act also introduced a special court based on Alien Terrorist Removal Procedures, empowered to use classified evidence to deport noncitizens suspected of terrorism, further circumventing due process protections. This aspect was such overkill that, three decades later, this court is yet to hear a case: perhaps because secret evidence mechanisms exist and criminal law provides enough prosecutorial mechanisms for the rare cases of noncitizen terrorists—the exact boogeyman used to justify this stripping of rights.
Overall, the implications for immigrant communities were especially severe. Noncitizens faced deportation for speech activities and humanitarian gestures, which would be constitutionally protected if expressed by US citizens. Ali Termos, a Lebanese immigrant in Michigan married to a US citizen, was deported for overstaying a student visa. He was questioned about sending money to an orphanage in Lebanon, which cared for young relatives of his. The reason? The orphanage was run by Hizbollah. Termos suspected he was targeted for being an outspoken critic of Israel’s occupation of south Lebanon.
The 9/11 legislation, most notably the USA Patriot Act, built upon AEDPA’s framework: extending surveillance powers—including bulk surveillance that reached millions of American citizens—and further empowering the government to use legal means of intimidating dissenters through terrorism investigations. The same post-9/11 legal machinations resulted in the consolidation of multiple federal agencies in the Department of Homeland Security, which has only expanded since that period under presidents from both parties, and most dramatically under Trump, with his infusion of billions of dollars into its budget.
AEDPA’s Legacy
The crackdown on Palestine solidarity activism in the United States during Israel’s industrial assault on Gaza reveals that AEDPA’s enduring influence has grown far beyond what Emerson dreamed. Material support has been invoked to intimidate activists and organizations providing humanitarian aid in Gaza, even as it faced famine or expressing political support for Palestinian liberation. Universities have called police to arrest thousands of students and faculty protesting US complicity in Israel’s actions, absurdly framing such dissent as a security threat. Legislative initiatives targeting the Boycott, Divestment, and Sanctions (BDS) movement similarly draw on AEDPA’s precedent of equating political expression with terrorism.
Civil rights groups warn that this repression will inevitably extend beyond Palestine advocacy, violating academic freedom, immigrant rights, and the sort of free speech essential to democratic dissent. In this sense, AEDPA’s logic—criminalizing association and advocacy under the rubric of counterterrorism—continues to animate the state’s responses to movements challenging its power. The overwrought response to crush activism against Israel’s genocide in Gaza has illuminated the deep entrenchment of AEDPA’s authoritarian impulses.
The warnings have proven accurate as the first Trump administration found a new enemy to fuse onto the Middle Eastern terrorist trope: antifascist activists. This was furthered more recently in President Trump’s “countering domestic terrorism” memo (NSPM-7) in September 2025. The document accused antifascism activists as engaging in “violent and terroristic activities.” Emulating the FTO provisions in AEDPA, Trump designated antifa a “Domestic Terrorist Organization”—a novel and controversial classification.
A few months later, the FBI planned “criminal and domestic terrorism investigations” into “threats against immigration enforcement activity” across the country. It termed the protests against ICE’s sweeps as “political violence.”
As ICE’s use of threats, violence, and arrests moved from Los Angeles and Portland to Minneapolis, we see clearly how immigration law enforcement connects to the state stripping away the rights of citizens: a connection that is instrumental to advancing the infrastructure of fascism. ICE detainees are dying in its facilities with little hope of accountability. After an ICE officer killed Renée Good, a US citizen, on a street in Minneapolis in January 2026, the Trump administration ensured there would be no criminal investigation despite the crime being captured on video. Soon after, DHS agents murdered another US citizen, 37-year-old intensive care nurse Alex Pretti, who was filming them, a protected act under the First Amendment. Some news outlets speculated prematurely that these killings would force the Trump administration to ease ICE’s aggression.
There has been little sign of hope for noncitizens suffering under a broken immigration system kept in place through presidents and Congressional majorities from both parties. The infrastructure of fascism emanating from immigration law remain firmly in place. The 1996 Antiterrorism and Effective Death Penalty Act was not the only brick in this path, of course. Yet AEDPA’s consequences have been far-reaching and corrosive to democratic freedoms. Understanding this lineage is imperative for resisting the normalization of exceptional measures, which erode civil liberties under the guises of immigration enforcement, national security, and fighting terrorism. Those protesting against ICE raids have recognized that defending immigrants is the first front in the fight against fascism.
This article was commissioned by A. Naomi Paik and Catherine S. Ramírez.