An in-depth look at the Knight Institute’s attempt to preserve the 1st Amendment in the digital age. By Gage Hodgen
The Knight First Amendment Institute at Columbia University was established last year as a collaboration between the Knight Foundation and Columbia University. With an endowment of $60 million, the Institute is intended to “preserve and expand First Amendment rights in the digital age through research and education, and by supporting litigation in favor of protecting freedom of expression and the press.” Jameel Jaffer, a distinguished lawyer with a broad background in civil liberties and First Amendment protection, was brought in by President Bollinger to be its first head.
Before coming to Columbia, Jaffer served as the Deputy Legal Director of the American Civil Liberties Union (ACLU), a non-partisan, civil-liberties advocacy organization with over two million members that works to secure civil liberties through legal and political means across the United States. While at the ACLU, Jaffer initiated Freedom of Information Act requests that led to the revelation that the U.S. Government sanctioned human rights abuses and torture in the American War on Terror. He was also an aggressive proponent of more transparent and regulated use of drones in the executive branch’s targeted-killing program of suspected terrorists and militants.
Born in Kingston, Ontario, Jaffer came to the United States after he finished high school. Jaffer is not an American citizen, which might seem odd given his passion for advancing American civil liberties as opposed to human rights more generally. When I met with him in his of ce in Low Library, I asked him where he got the passion to work to protect the civil liberties of Americans. “A lot of the issues I work on are, first, American issues. But [they are] not only American issues,” Jaffer said. “The work we were doing [at the ACLU] really didn’t end at the border.”
Illustration by Kristine Dunn
He said the same is true for much of the work he plans to do through the Knight First Amendment Institute at Columbia. “The policies of social media companies like Facebook and Twitter apply around the world, not just here [in the United States]. The debates that we’re having about the proper limits on the freedom of speech or proper limits on government surveillance power are debates that everybody is engaged in. They are not uniquely American debates. The policies of the US government and the policies of US corporations have an effect all over the globe.”
Jaffer finished law school and began working at a large law rm in New York in October 2001. After 9/11, many of the civil liberties issues he had thought about solely from an intellectual standpoint while clerking on the U.S. Second Circuit Court of Appeals became much more tangible. Jaffer began to do pro bono work assisting undocumented Muslim immigrants who had been rounded up in raids by the U.S. immigration service in the weeks following 9/11 and who were being held under policy known as “hold until cleared.”
That he is no fan of drone campaign policies for their substance and would likely have remained unconvinced regardless of Obama’s supposed legal justification, he asserts that the public should be given the opportunity to examine the arguments for itself. Obama repeatedly claimed that the strikes were obviously legal, yet he never provided the legal justification of that claim. Jaffer said that to him it was not made clear what law allowed for the strikes and he repeatedly called for the government to disclose its justification. “If we are going to be killing thousands
Jaffer’s first experience working in civil liberties led him to begin working full-time for the ACLU. As a new attorney there, Jaffer led several Freedom of Information Act requests. When the Abu Ghraib photos depicting mistreatment of prisoners at a U.S. prison in Iraq were leaked to the press in April 2004, the ACLU litigated the case to compel various government agencies to promptly release documents relating to the torture regime.
The documents released eventually allowed Jaffer and the ACLU to show that the policies of torture “had been sanctioned at the very highest level, by the Justice Department, by the White House, by the CIA, and that the abuses were all a result of the same set of policies.”
Jaffer did not contain his criticism to the Bush administration alone. Specifically, Jaffer warns that the precedent set by President Obama in his use of an extensive and quasi-secret drone campaign to conduct a targeted-killing program with little to no oversight is dangerous, especially in the current political climate, and leaves such claimed executive powers open to vast abuse.
Jaffer said that Obama drastically expanded the drone program, from just a few killings a year in the final Bush years to thousands, and created a legal framework that supposedly justified killings that “until recently, most Americans would have thought of as political assassination.” Jaffer cedes that if we acknowledge the necessity of a targeted-killing program, it is laudable to create a codified system of standards to guide that system. However, he objects that in doing so the Obama administration normalized a protocol that has killed thousands of people, and perhaps as many as a thousand civilians, without ever presenting evidence of the threat posed by the targets of the program to either a court or the public.
“It is crucial that the public know what is being done in its name,” Jaffer said. While Jaffer admits of people overseas, the public should know who we’re killing and why we’re killing them.”
Jaffer authored a book, released in October 2016, entitled The Drone Memos: Targeted Killing, Secrecy, and the Law, which presents a compilation of the legal and policy documents used by the United States to justify the drone and targeted killing program, as well as a lengthy introduction in which Jaffer argues that Americans have given up some core principles of their democracy for the illusion of safety.
One of the things that most surprised me about Jaffer’s book was on the back cover—the first praise on the dust jacket is from Edward J. Snowden, the NSA leaker who, among other things, revealed the secret NSA surveillance program of the United States on its own citizens and who is now avoiding prosecution by the US government and living in Russia. Snowden says of Jaffer’s book, “This investigation shows the dangers of investing government with the power to kill suspected enemies in secret. Jaffer and his team perform a lasting public service by exposing the ‘targeted killing’ policies … [and offer] a much needed corrective to the linguistic manipulation and official obfuscation that have made these policies possible.” When I asked Jaffer how he viewed Snowden’s leaks, he responded, “His disclosures served the public interest. He sparked a necessary debate and disclosed information that showed government abuse.”
Jaffer’s work with the Knight First Amendment Institute focuses precisely on many of the things revealed by Snowden’s disclosures. Jaffer told me, “I recognize that the government has a legitimate interest in keeping secrets sometimes, but I don’t think that enforcing that rule categorically, in a way that leads to the prosecution of people whose disclosures are so necessary to public debate, would be a good thing.” One of Jaffer’s primary goals for the Knight First Amendment Institute is to combat the official secrecy doctrine that Jaffer believes is over-broad in its classification of information as secret and keeps the American public from being adequately informed about what the government is doing.
I asked Jaffer, “What are we entitled to know about the government?” After a pause, Jaffer responded, “In a democracy like this one, the legitimacy of the government turns on public knowledge of government activities. We have, or are supposed to have, popular sovereignty; ordinary citizens have a role in deciding who governs them and what the government’s policies are. That whole system relies on ordinary citizens knowing something about government activity.”
“At a minimum, they have a right to know what the law is and how the law is implemented.” A functional democracy requires an informed public, or at least a public informed enough to make reasonable decisions about its leaders and policies of its government.
Our conversation turned to the chilling effect which government surveillance has on the freedom of expression within the United States. Jaffer said that surveillance chills “the willingness of individuals to dissent, or to engage in communications that are necessary for anyone who wants to form political opinions. You need to be able to have private conversations without worrying that every conversation is being swept up into a massive government database.” It is obvious how this crucial political activity, which the First Amendment protects, is discouraged by unregulated government surveillance.
Part of the change regarding surveillance, especially the surveillance most worrisome and chilling to Americans citizens, is tied to the development of ever-more complex surveillance technology. The broad purpose of the Knight First Amendment Institute is to advance and develop the First Amendment’s guaranteed freedoms of expression and of the press in a new, digital age.
Jaffer spoke to this fundamental change in technology and how it necessitates a new wave of First Amendment protections: “Technology has challenged many of the premises of the Supreme Court’s major First Amendment cases. Much of what used to take place in the public square now takes place on proprietary networks [i.e. Facebook or Twitter]. The entities that have most control over what speech people hear are social media companies that could not have been conceived of twenty years ago. Each of us now carries around a surveillance device in our pocket. Those kinds of things have real implications for First Amendment rights.”
The Knight First Amendment Institute was established to deal with new, digital era threats to the First Amendment that the courts have not yet grappled with. One of the things that Jaffer hopes to do through the Institute is address those questions of new First Amendment doctrine. But, Jaffer notes, the atmosphere of First Amendment questions has drastically changed since the Institute’s inception.
Each of us now carries around a surveillance device in our pocket. Those kinds of things have real implications for First Amendment rights.
“We now have an administration that seems especially hostile to First Amendment rights. We have a responsibility to address those more immediate threats even as we make sure not to lose sight of the deeper structural issues that were the original reason for the creation of the Institute.”
It is encouraging to see Columbia University organize the Knight First Amendment Institute to take such direct action to counter the threats to free speech posed by the Trump administration’s apparent disdain for the First Amendment and to give attention to the long-term implications of the development of technology on freedoms of speech and the press in the digital age. Both are sorely needed if America is to preserve the civil liberties and freedom of expression that Americans enjoy and take for granted.