Los Angeles Times - 13.11.2019

LATIMES.COM/OPINION WEDNESDAY, NOVEMBER 13, 2019A

OP-ED

F

or a decade now, many of

us working in human

rights have warned West-

ern nations about the

dangers of running covert

assassination programs. U.S.

drone strikes have terrorized com-

munities, killed civilians and gen-

erated hatred.

Don’t care about those im-

pacts? At least think about the new

normal you risk creating: a world

where other states use the same ra-

tionale to take out their enemies.

That risk has become a reality.

In comments covered by several

Turkish papers, President Recep

Tayyip Erdogan of Turkey recently

hinted that he would begin an

operation to target and kill

Mazloum Kobani, head of the Syr-

ian Democratic Forces and, until

recently, a key U.S. ally in the fight

against Islamic State in Syria.

Erdogan used the United

States’ own drone program as jus-

tification: “Some countries elimi-

nate terrorists whom they consider

as a threat to their national securi-

ty, wherever they are. Therefore,

this means those countries accept

that Turkey has the same right,” he

reportedly said. This should have

been expected. Turkey is just fol-

lowing our example.

For more than a decade now,

the U.S. and its European allies

have pioneered the use of drones to

target and kill suspected terrorists

far from traditional battlefields.

Those drone strikes have killed

thousands of innocent civilians far

outside combat zones — in places

like Yemen and Pakistan where,

thanks to the drone program,

many people’s first and only en-

gagement with the West is when a

missile lands on their doorstep.

Sometimes those strikes hit al-

leged “bad” guys, hundreds of

whom are reportedly on a kill list.

But nobody outside the U.S. gov-

ernment knows how you get on or

off this list. No one on the list is ever

charged with a crime or tried in a

court of law before they are ex-

ecuted by drone.

Perhaps it’s true to say that no-

body is going to mourn the death of

Abu Bakr Baghdadi or Ibrahim

Asiri (allegedly Al Qaeda’s chief

bomb maker in Yemen). But for ev-

ery bad guy hit, reports suggest

there may be dozens of innocent

people killed, including women

and children. An investigation by

Reprieve several years ago found

that on average these so-called bad

guys “die” three times. That is to

say: While the drone might be pre-

cise, the intelligence steering it is

anything but. The same people get

targeted over and over — bad intel-

ligence means the targeted individ-

ual frequently doesn’t get killed,

but many others die instead.

Salem bin Ali Jaber was an

imam who delivered a sermon criti-

cizing Al Qaeda just days before a

U.S. drone killed him, his nephew

and three unknown young men

who came to speak to him about

his sermon. Jaber’s brother-in-law,

Faisal, brought a case in Germany

challenging the United States’ con-

tinued use of Ramstein Air Base for

carrying out strikes. In March, the

German courts agreed with Faisal:

U.S. drone strikes were illegal and

Germany was required to prevent

its territory being used as a launch-

pad for illegal action.

The court’s decision is impor-

tant, but Erdogan’s comments

show that we’re already so far

down the slippery slope that it’s go-

ing to be a difficult climb back up.

For years, Germany and other Eu-

ropean countries have secretly

facilitated the U.S. targeted-killing

program, sharing intelligence and

allowing the use of their bases.

Others in recent years have

gone even further, declaring that

they would hunt down and kill their

own nationals who had joined Is-

lamic State. “A dead terrorist can’t

cause any harm to Britain,” said

the then-British defense secretary

in 2017. In the French elections, can-

didates criticized then-President

Francois Hollande for talking pub-

licly about assassinating terror-

ists, not for actually doing it. Such

actions, they said, must never be

discussed in the light of day.

And that is the problem. Almost

two decades into the so-called war

on terror, the U.S. and its European

allies have abandoned their long-

held democratic principles.

It should come as no surprise,

then, that Turkey has said: See,

they’re doing it; so can we. Which

raises the question: If we don’t re-

verse course, who will be next to fol-

low our lead?

Jennifer Gibsonis head of the

Extrajudicial Killings Project at

Reprieve, an international human

rights organization.

When

drone

killings

are the

norm

By Jennifer Gibson

T

he Morgan childrenwere in

their pajamas, probably dream-

ing, when four men broke into their

home before daylight, loaded

them into the back of an open wag-

on and forcibly took them across Pennsylva-

nia’s southern border. The year was 1837.

The men were working with a slave catcher

named Edward Prigg who had come for their

mother, Margaret, claiming she was an es-

caped slave belonging to a woman named

Margaret Ashmore, who lived in Harford

County, Md. The children had never been

slaves. At least one was born in York County,

Pa., and the others had left Maryland at a

young age. All they knew was freedom.

Margaret Morgan probably hadn’t es-

caped. She had lived as a free person in the

home of her former master, since deceased,

and so she and her children should have been

free. Prigg was eventually convicted in Penn-

sylvania under state law for kidnapping Mor-

gan and her children, and he appealed to the

Supreme Court.

In Prigg vs. Pennsylvania, the court de-

clared Prigg a free man and ruled that the Fu-

gitive Slave Clause of the Constitution super-

seded state laws and permitted slave catchers

to seize people based on a slave owner’s per-

sonal belief that someone was an escaped

slave. It was simply the law, Justice Joseph

Story wrote in the majority opinion.

In our times, more than a million undocu-

mented immigrant children have lived in fear

of suffering a fate eerily similar to that of the

Morgan children: having armed men barge in

at any time to ship them south, to misery or

worse. In 2012, the Obama administration is-

sued the Deferred Action for Childhood Ar-

rivals memorandum shielding roughly

700,000 “Dreamers” from deportation. These

were children who had been brought to the

U.S. at a young age and stayed in school or

served in our armed forces. As young workers

in the economy, they have contributed a net

$3.4 billion in taxes to the federal government

every year. Like the Morgan children, all the

Dreamers know is free soil.

On Tuesday, the Supreme Court heard ar-

guments on whether President Trump’s De-

partment of Homeland Security acted law-

fully when it rescinded DACA in 2017. While

there are obvious differences between slavery

and deportation, the way antebellum courts

in free states thought about the security of

their brown-skinned residents is instructive.

We sometimes characterize the law as a

clear set of rules, but the law isn’t always so

straightforward. In the Prigg case, the

Supreme Court said the Fugitive Slave

Clause overrode Pennsylvania’s Personal Lib-

erty Law, which required a slave catcher like

Prigg to appear before a local magistrate to

seek a warrant and present his claim that

someone was indeed a fugitive, instead of just

kidnapping people. While providing due proc-

ess to black and brown people might pose an

obstacle to the recapture of escaped slaves,

nothing in the text of the clause directly au-

thorizes extralegal seizure and rendition.

In blessing private action to capture and

return suspected fugitive slaves, the Supreme

Court put a bounty on every black or brown

person in the country, free or not, adult or

child. Justice Story was personally opposed to

slavery, but he was too willing to ignore the

manifest injustice of his decision. The legal

philosopher Ronald Dworkin once wrote that

it’s natural for legal interpretation to aim at

just outcomes, what he called “happy end-

ings.” Judges must obey the law, but for a good

judge faced with profound legal uncertainty,

the tie should go to justice.

The law of slavery was lousy with uncer-

tainties of this sort. For years, it was unclear in

many states, for example, whether someone

deemed a fugitive slave was entitled to a jury

trial or whether a slave temporarily brought

into a free state was thereby emancipated. An

1836 Massachusetts case involved a Louisiana

woman who took a 6-year-old slave girl, Med,

with her on a visit to the woman’s sick father in

Boston. Many Southern courts held that prin-

ciples of interstate comity meant that some-

one like Med remained a slave unless her mas-

ter took up permanent residence in a free

state. But Chief Justice Lemuel Shaw of

Massachusetts disagreed and ruled that the

abolition of slavery there meant that enslaved

people brought into the state could sue for

their freedom.

As in the antebellum years, states are now

following largely regional and partisan lines in

the battle over the protections due to their

young, brown-skinned residents. Twenty-

four states, two governors and the District of

Columbia filed briefs in the Supreme Court

arguing that Dreamers must be permitted to

remain free in our communities and with their

families. Twelve states and the governor of

Mississippi filed briefs opposing the Dream-

ers and arguing that DACA is an illegal exer-

cise of executive power.

As this division highlights, the DACA case

involves some legal uncertainty. A court

should hesitate before depriving an adminis-

tration of the power to repeal prior discre-

tionary policies such as DACA. Still, the law

requires agencies such as the Department of

Homeland Security to engage in reasoned de-

cision-making. Here, the agency repealed

DACA under the mistaken assumption that

the program was illegal. For that reason, over

the last two years, nearly every federal court

considering the rescission has ruled against

the Trump administration.

The Supreme Court would do well to follow

Chief Justice Shaw’s example rather than

Justice Story’s. It is no exaggeration to say the

Prigg decision was the court’s darkest hour.

Prigg eventually sold the Morgans south into

slavery, where they were lost to history. We

don’t even know the children’s names.

Undocumented immigrants are among

the most vulnerable members of society. For

Dreamers, America is the only home they

know. For the Supreme Court to let them be

“sent south” needlessly would be nothing

short of a nightmare.

Jamal Greeneis the Dwight Professor of

Law at Columbia Law School. Elora

Mukherjee is the Jerome L. Greene Clinical

Professor of Law at Columbia Law School.

Slavery’s lessons for DACA

“DREAMERS”attend a news conference at the U.S. Capitol on the DACA case.

Erik S. LesserEPA/Shutterstock

The law is sometimes characterized

as a clear set of rules, but it isn’t

always so straightforward.

By Jamal Greene

and Elora Mukherjee

T

he dog pile was fast
and it was intense.
After Northwestern
University’s student
newspaper, the Daily
Northwestern, apologized Sunday
for the way it covered a student
protest against former Atty. Gen.
Jeff Sessions, professional journal-
ists weighed in, and most did not
like what they were reading. What
kind of journalists would apolo-
gize for simply doing their jobs?
The paper had done a thorough
job of reporting Sessions’ contro-
versial Nov. 5 appearance; it
should have been proud of the
work. A reporter had been in the
hall, covering the speech, and
reporters and a photographer
were outside, covering two sepa-
rate protests. One of the protests
got heated when about 150 stu-
dents tried to crash the hall where
Sessions was speaking, some
through open windows, others
through doors, and were rebuffed
by police, according to the Daily
Northwestern.
Photographer Colin Boyle
tweeted photos that showed some
of the protesters’ faces. And before
Sessions’ speech, reporters had
used a student directory to text
some of those planning to protest
to ask if they’d be interviewed.
According to the Washington
Post, the paper’s editors soon
“faced a backlash from student
activists, who complained that the
university might use pictures of
them or their names to punish
them.” The paper agreed to re-
move one protester’s name from a
story and Boyle deleted photos
from his Twitter feed. The paper
also apologized for using the stu-
dent directory to contact stu-
dents, calling it “an invasion of
privacy.”

“We did not want to play a role

in any disciplinary action that

could be taken by the University,”

said the apology, which was signed

by eight of the student paper’s top

editors. “When the source in our

article requested their name be

removed, we chose to respect the

student’s concerns for their pri-

vacy and safety. As a campus

newspaper covering a student

body that can be very easily and

directly hurt by the University, we

must operate differently than a

professional publication in these

circumstances.”

And: “We feel that covering

traumatic events requires a differ-

ent response than many other

stories. While our goal is to docu-

ment history and spread informa-

tion, nothing is more important

than ensuring that our fellow

students feel safe — and in situa-

tions like this, that they are ben-

efiting from our coverage rather

than being actively harmed by it.

We failed to do that last week, and

we could not be more sorry.”

So many distressing things are

going on in that apology that it’s

hard to know where to start.

First, anyone who attends a

public protest — even one in the

relatively coddled space of today’s

college campuses — should not

expect privacy. Protests are news

events. The very aim of a protest is

to bring some level of trauma or

distress to the event or person the

protest is aimed at, and to garner

news coverage in order to amplify

the message.

Second, if a reporter contacts

someone to ask if they’d like to be

interviewed, said person can agree

or decline. This is the free press in

action, folks. No one has invaded

anyone’s privacy.

Third, if students are caught on

camera protesting in a manner

that might draw the negative

attention of university adminis-

trators — such as smashing win-

dows or making it impossible for

an invited speaker to be heard —

they should accept the conse-

quences like the adults they fancy

themselves to be.

That any of this has to be

spelled out is a sure sign that,

when it comes to free speech,

things have gotten really weird on

college campuses.

A couple of years ago, I stood on

Sproul Plaza at my alma mater,

UC Berkeley, birthplace of the

Free Speech Movement, interview-

ing students about why Milo

Yiannopoulos, the jejune right-

wing provocateur whose career

has since imploded, should not be

allowed to speak on campus. It

was shocking to me that they

really, truly believed they needed

to be protected from him. Why give

an insignificant dope that much

power?

I talked about this a short while

later over coffee with a couple of

fellow Berkeley graduates, all of us

free speech nuts. We agreed that if

we ran the world, we’d call out the

National Guard to protect free

speech on campus, to give even the

loathsome Milo a mic.

Of course, the irony of the

Northwestern students’ “invasion

of privacy” backlash is that we are

in an era where privacy is practi-

cally dead. Instagram, Snapchat,

whatever: pictures, or it didn’t

happen! And yet students object

to news coverage of themselves

publicly protesting odious politi-

cal policies because they may

suffer some theoretical harm.

It’s a conundrum, and one that

has allowed the language of per-

sonal safety to be perverted.

The best explanation for why

this has happened comes from UC

Berkeley Chancellor Carol Christ,

who sat down with my colleague

Teresa Watanabe in the midst of

the Milo madness.

Today’s students, Christ told

Watanabe, “grew up having lots of

instructions in anti-bullying, on

what constitutes harassment.

They’ve been told strongly and

repeatedly that certain kinds of

speech are inappropriate. And so

they don’t understand the differ-

ence between how we say it’s right

to act in a community, whether it’s

a classroom or a dormitory, and

what a public speaker is allowed to

say in a public square. ... I some-

times say ironically that in 1964 it

was the students for free speech

and the administration was

against it; now you’ve got this

weird reversal.”

All journalists get asked to

protect people from the conse-

quences of their own behavior or

statements. Sometimes someone

starts to talk to us, then thinks

better of it and asks not to be

quoted. If they are young or inex-

perienced in dealing with the

media, we often accede to the

request. We’re not here to make

people’s lives miserable, I often

say, unless they deserve it.

The student protesters at

Northwestern should have known

they were part of a news event, and

that by showing up in public to

disrupt an invited speaker, they

risked being part of the coverage.

The newspaper’s editors acted in

good faith, but they erred in apolo-

gizing for doing their job, and in

being willing to censor their cov-

erage.

Yes, certainly there is a power

imbalance between protesting

students and the university. The

way to address that imbalance is

not to conceal the identities of

students. It’s to cover the hell out

of thatstory.

Twitter: @AbcarianLAT

Journalism 101: Don’t apologize

ROBIN ABCARIAN