The Great Writ

Now that the semester is winding down, I finally have some time to take a look at the status of the remaining habeas cases involving student and faculty activists. Specifically, I am referring to the cases of Mahmoud Khalil, Rumeysa Ozturk, Mohsen Mahdawi, and Badar Khan Suri. All four sought habeas corpus protection in federal district court in the spring of this year, and all four have since been released from detention. In each case, the primary arguments center on whether federal district courts may entertain habeas corpus petitions filed by individuals who are detained—ostensibly—pursuant to federal immigration laws.

The first thing to note about these cases is how the early frenzy of activity in the district courts has morphed into the much slower pace of the federal courts of appeals. The most advanced of the four is the consolidated appeal of Ozturk and Mahdawi in the Second Circuit. In those cases, briefing is complete and oral arguments were held on September 30, 2025. Thus, the cases are now submitted to the court for decision. Next is Khalil, in which oral argument was held on October 21, 2025. The Third Circuit subsequently called for supplemental briefing (no longer than three pages), which were due and submitted on November 10, 2025. That case, too, is now submitted. Finally, in the Suri case, final briefs are due by December 5, 2025.

Certainly, things move more slowly in the federal courts of appeals, but one wonders whether there is a bit of gamesmanship at play as well. In all four cases, the jurisdictional issues are roughly the same, and the Government’s arguments—unsurprisingly—are almost identical. Thus, whichever court issues an opinion first may have significant influence on how the remaining circuits address the issue. Is it better to be first? It is hard to say.

It is also interesting to consider the number of amicus briefs filed in these cases and who felt it important to join the debate. By far the largest number appears in the Ozturk case, in which 31 amici filed supporting briefs. These include the Cato Institute, the National Education Association, PEN America, Reporters Without Borders, and the Rutherford Institute. Next, in terms of numbers, is the Khalil case, with 21 amici—including many of the same groups that appeared in Ozturk. Mahdawi has 7 amici and Suri has 2. One might wonder why Ozturk’s case has drawn such an extensive coalition. It may simply be that the opinions she expressed (and to which the Government has taken exception) were found in a student newspaper.  One would think this to be a classic example of freedom of speech and/or the press—issues that naturally attract broad support from experts and advocacy groups.

We await the circuit court decisions, knowing full well that they will not provide any sort of finality in these cases.