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Jewish World Review May 8, 2000 / 3 Iyar, 5760

Nat Hentoff

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The coverage of Reno's lawless raid -- MOST AMERICANS saw the taking of Elian Gonzalez, repeatedly, on television. Most Americans, according to polls, believe -- with the president and Janet Reno -- that it was "the right thing to do."

Yet Harvard law professor Laurence Tribe -- whose books on constitutional law have been quoted by the Supreme Court more than those of any other expert -- said in The New York Times that Reno's raid "strikes at the heart of constitutional government and shakes the safeguards of liberty." Tribe, it should be known, believed that the boy should be reunited with his father.

On April 27, Ted Koppel's "Nightline" on ABC tried to bring light to this continuing constitutional controversy by presenting, for the first time, the man who led the raid: James Goldman, the Immigration and Naturalization Service's assistant director.

Unlike most "Nightline" shows -- and I've watched them since the program started, when American hostages were taken in Iran -- Koppel and reporters Chris Bury and Michel McQueen asked Goldman no searching questions. What they said on that program simply confirmed Goldman's story and the accompanying statements of Janet Reno and her deputy, Eric Holder. Clips of the other side's point of view were shown, but those who were in the house during the raid were not allowed on camera to ask questions of Goldman during his taped interview.

Koppel told me the next day that his intent was to be fair, but the result made "Nightline" a public-relations arm of the Justice Department during that crucial program.

For instance, Michel McQueen said flatly that the INS SWAT team had a warrant. Not a word about a point made by the internationally respected Washington Post columnist Jim Hoagland -- and others -- that Reno engaged in "blatant magistrate shopping to find someone willing to authorize the grabbing of Elian on a search warrant rather than through a court order." Hoagland, too, wanted the boy reunited with his father.

Moreover, there was no mention on "Nightline" of the charge by Harvard law professor Alan Dershowitz and others that to be lawful, the raid would have had to have been preceded by a court order and an "adversarial hearing." "Nightline" did not comment on Dershowitz's statement that Reno's action, which was approved by the president, "endangers the rights of all American citizens."

"Nightline" omitted the fact that only three days before the raid, the 11th U.S. Circuit Court of Appeals refused the Clinton administration's request to have Elian removed from the home of his relatives. Instead, the court scheduled Elian's first full day of due process in an American court for May 11. And on April 19, the 11th Circuit said that the boy's request for asylum in the United States "presented a substantial case on the merits."

None of this was mentioned on "Nightline," including the reasonable question of whether Reno acted so hastily because she feared losing her right to grab the boy after the 11th U.S. Circuit Court of Appeals heard the case 13 days later.

On "Nightline," the head of the raid said that a show of force was necessary, but he was not pressed on whether there was an excessive use of force. Michel McQueen also used the benign term "show of force." "Nightline" might have interviewed NBC cameraman Tony Zumbado, who was kicked in the stomach by the INS raiders and was later hospitalized. "My soundman," Zumbado says, "got hit with a shotgun butt, dragged out to the fence, left there, and told that if he moved, they'd shoot."

"Nightline" went so far as to avoid asking James Goldman an eminently logical question when he said, of the AP photograph shown all over the world, that the finger of the border patrol officer holding the menacing gun was not on the trigger. Remember Elian's terrified face? Does Ted Koppel believe that the boy was watching where the trigger finger was?

To confirm Goldman's version of the raid, Chris Bury said on the program that "Nightline" had shown the photograph of Elian at bay to an independent firearms expert, "and he confirms what the INS says -- that the safety is on."

Koppel considered it essential to place that claim in a fuller context, however irrelevant to the reality of Elian's perception. But he saw no reason to include in the program the most fundamental context of the raid. Was it constitutional? Was the raid -- as Laurence Tribe says -- a decision by Reno "to take the law as well as the child into her own hands?"

I believe Ted Koppel intended to be fair. He's earned that reputation. But this is not the first time that a journalist has been eager to break a "scoop." In order to be the first one to present the story of the man in charge of the raid in his own words, Koppel rushed, as the INS agents did, to put this exclusive on the air shorn of the context viewers needed to know in order to judge for themselves the statements of Goldman, Bury, McQueen -- and Ted Koppel himself.

Koppel told me that he was focusing only on the raid. There was so much more to the taking of Elian than met the eye.

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


05/01/00: In Clinton and Castro's best interests
04/24/00: Elian's human rights
04/17/00: Crime's down, but arrests keep rising
04/10/00: Teacher brings Constitution to life
04/03/00: The Americans who keep disappearing
03/27/00: The censoring of feminist history
03/20/00: Should there be a chaplain in Congress?
03/13/00: Big labor, big China, spinning Gore
03/03/00: The ACLU violates its principles --- yet again!
02/28/00: Still two nations?
02/11/00: You bet we should disbar Bubba
01/31/00: Where was Jesse?
01/24/00: Is suing church for sexual harassment an entanglement?
01/18/00: Will Miranda make it?
01/11/00: ACLU: Guilty until presumed innocent?
01/03/00: Liberty lion should be Man of Century
12/28/99: Drug tests that tear families apart
12/20/99: Get ready for decisive ruling on school vouchers for religious schools
12/13/99: Guess who is taking the lead in anti-slavery movement? Hint: It ain't Rev. Jesse
12/06/99: When we refuse to buy the 'otherly-challenged' excuse
11/29/99: Expelling 'Huck Finn'
11/22/99: Pleading the First
11/16/99: Goal of diversity needs rethinking?
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10/26/99: Disappeared Americans
10/18/99: The blue wall of silence
10/11/99: Bill Bradley's speech tax
10/04/99: 'Technicalities' that keep us free
09/27/99: Our 'Americanism'-ignorant generation
09/20/99: ACLU better clean up its act
09/13/99: A professor of infanticide at Princeton
09/07/99: The Big Apple's Rotten Policing
08/23/99: Lawyerly ethics
08/16/99: To Get a Supreme Court Seat
08/02/99: What are the poor people doing tonight?
07/26/99: Lady Hillary and the press

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