Trump Deploys Troops Against LA Protesters. Plus, Journalists Under 'Less Lethal' Fire.

Summary

On the Media – June 13, 2025 Episode Summary

Title: Trump Deploys Troops Against LA Protesters. Plus, Journalists Under 'Less Lethal' Fire.

Hosts: Brooke Gladstone and Michael Ohinger
Guests: Elizabeth Goytin (Senior Director, Liberty and National Security Program at the Brennan Center for Justice) and Dayan Nissenbaum (Co-Executive Producer of the documentary Who Killed Shireen?)

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Introduction

In this episode of the Peabody Award-winning On the Media, hosts Brooke Gladstone and Michael Ohinger tackle two pressing issues: former President Donald Trump’s deployment of National Guard troops to Los Angeles amid protests and the alarming increase in attacks against journalists using “less lethal” weapons. The episode also features a deep dive into the newly released documentary Who Killed Shireen?, which investigates the death of Palestinian American journalist Shireen Abu Akleh.

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Section 1: Trump's Deployment of Troops in Los Angeles

Context and Initial Reactions

The episode opens with Michael Ohinger describing the situation in California as “a full-blown assault on peace, on public order” [00:02]. Brooke Gladstone elaborates, stating, “The president reframed the mostly peaceful protests in LA as riots and sent in the army” [00:05]. Elizabeth Goytin counters, emphasizing the legal constraints: “You need to have some express legal authorization in order to deploy troops” [00:11].

Discrepancies Between Narrative and Reality

Brooke discusses the stark contrast between the president’s portrayal and the actual conditions on the ground. Only about 315 National Guard troops were actively mission-tasked, while around 1,700 were left idle without adequate supplies or training [02:32]. Michael criticizes the move as “theater” and “unconstitutional” [02:57].

Impact on Troop Morale and Public Perception

Photos of National Guardsmen in deplorable conditions—sleeping on concrete with no bedding or sufficient supplies—highlight the low morale among troops. Sarah Strider from the Secure Families Initiative remarks, “Deploying military force against our own communities isn't the kind of national security we signed up for” [03:24]. Dayan Nissenbaum adds that morale is low, with quotes like “Morale is not great” circulating among soldiers [04:14].

Media Coverage and Misinformation

The discussion shifts to media portrayal, where Michael Ohinger references their 2017 “Protest edition” of the show, noting how media tends to focus on violent incidents even if they’re rare [04:54]. Brooke underscores the prevalence of misinformation, citing incidents of “repurposed footage” and AI-generated fake images that confuse the public [08:13].

Legal Implications and Constitutional Concerns

Elizabeth Goytin delves into the legality of Trump’s actions, explaining that the deployment was justified under 10 USC 12406 rather than the Insurrection Act [21:15]. She highlights that this statute is obscure and not typically used for such purposes, raising concerns about potential abuse and constitutional violations [22:11]. Brooke questions the broader implications, noting the unprecedented nature of the deployment [23:00].

Public and Judicial Response

A federal judge ruled the deployment illegal for lacking proper congressional authorization [19:58]. Elizabeth warns that such military involvement can erode democratic norms and chillingly states, “If the President can turn the military inward against the people, that can very quickly become an instrument of tyranny” [25:47]. Polls indicate that a majority of Americans oppose the deployment, emphasizing the role of public opinion in upholding democracy [32:27].

Notable Quotes:

• Brooke Gladstone [00:02]: “The president reframed the mostly peaceful protests in LA as riots and sent in the army.”
• Michael Ohinger [02:57]: “This whole thing is theater. It's madness. It's unconstitutional.”
• Elizabeth Goytin [21:15]: “The potential for abuse of these authorities is pretty alarming.”

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Section 2: Journalists Under 'Less Lethal' Fire

Escalation of Violence Against the Press

Michael Ohinger introduces the troubling trend of journalists being targeted with “less lethal” weapons during protests [14:06]. Multiple instances are cited:

• An Australian journalist was shot from behind with a rubber bullet despite no visible protesters nearby [14:06].
• A New York Post photographer was hit in the head with a rubber bullet, resulting in a serious bruise [14:37].
• A British photographer required emergency surgery after a plastic bullet penetrated his thigh [16:22].

Insights from Journalists

Sergio Olmos, an investigative reporter at Calmatters, shares his harrowing experiences: “If you're in the crowd covering it, photographers and the like, you're gonna get hit with one” [17:00]. He recounts being struck multiple times despite wearing protective gear, highlighting a disregard for safety and protocol [16:42].

Impact on Journalistic Integrity and Safety

The hosts discuss the broader implications for press freedom, noting that these aggressive tactics deter journalists from covering important events. Fatima Abdul Karim, a contributor, expresses how Shireen Abu Akleh’s death has changed her approach, emphasizing the personal risks journalists face [48:09].

Notable Quotes:

• Sergio Olmos [17:00]: “If you're in the crowd covering it, photographers and the like, you're gonna get hit with one.”
• Brooke Gladstone [14:37]: “Just got shot in the head. He was treated in a hospital for whiplash and was left with a huge bloody bruise on his forehead.”

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Section 3: Documentary on Shireen Abu Akleh

Introduction to the Documentary

The episode transitions to Dayan Nissenbaum’s documentary Who Killed Shireen?, which investigates the death of Shireen Abu Akleh, a Palestinian American journalist killed by Israeli Defense Forces (IDF) in Jenin [33:28].

Investigation and Findings

Dayan reveals that initial Israeli statements falsely claimed Shireen was killed by militants, but further investigation showed she was likely targeted by an IDF soldier [37:10]. The documentary uncovers that no militants were near her at the time of her death, contradicting IDF’s narrative [38:43].

Challenges Faced in the Investigation

Efforts to identify the shooter were stymied by Israel’s refusal to disclose the soldier’s identity or cooperate with U.S. investigations [40:15]. Dayan details pressing obstacles, including reluctance from Israeli authorities to hold the shooter accountable [41:10].

Emotional and Societal Impact

The documentary highlights the personal toll on journalists and their families, with Shireen’s producer Fatima Abdul Karim sharing how her loss has changed her approach to reporting [48:09]. The film underscores the broader issue of impunity and the dangers Palestinian journalists face [51:25].

Notable Quotes:

• Dayan Nissenbaum [37:10]: “The Israeli military concluded that it was highly likely that an Israeli military soldier falsely identified Shireen as a militant and deliberately shot her.”
• Brooke Gladstone [39:55]: “The United States will continue to insist on a full and transparent accounting of her death and will continue to stand up for media freedom everywhere in the world.”

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Conclusion

The episode closes by reiterating the critical state of democracy and press freedom in the face of governmental overreach and violence against journalists. The hosts emphasize the necessity of public vigilance and engagement to uphold democratic values and protect media integrity.

Final Thoughts:

• Brooke Gladstone [30:56]: “It's the state of our democracy, not the infraction of this law or that, that matters most.”
• Elizabeth Goytin [33:16]: “Protecting the right to assemble and to protest is crucial for democracy.”

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Notable Quotes:

• Brooke Gladstone [08:17]: “Not repurposed footage. Not even an actor, but a digital creation rendered entirely by AI.”
• Elizabeth Goytin [24:44]: “Exactly. That's probably the best way to put it.”

This comprehensive summary encapsulates the key discussions, insights, and conclusions presented in the episode, providing a clear and engaging overview for those who haven’t listened.

Transcript

[Michael Ohinger]

What you're witnessing in California is a.

[Brooke Gladstone]

Full blown assault on peace, on public order.

[Michael Ohinger]

The president reframed the mostly peaceful protests in LA as riots and sent in the army.

[Elizabeth Goytin]

But you need to have some express legal authorization in order to deploy troops. You can't just say, this looks like chaos to me so I'm going to bring in the military.

[Michael Ohinger]

From WNYC in New York, this is ON THE media. I'm Michael Ohinger.

[Brooke Gladstone]

And I'm Brooke Gladstone. The several journalists covering the protests have been attacked by law enforcement.

[Michael Ohinger]

You just shut the and a new documentary about the investigation to find out who killed Palestinian American journalist Shireen Abu Akleh.

[Dayan Nissenbaum]

Israel even refused to provide the US Government with the name of the soldier. They did everything they could to hide his identity. And you know, as a journalist, when someone's working so hard to hide something.

[Michael Ohinger]

You want to know even more.

[Dayan Nissenbaum]

Exactly.

[Brooke Gladstone]

It's all coming up after this ON.

[Elizabeth Goytin]

The MEDIA is brought to you by Progressive Insurance.

[Brooke Gladstone]

Do you ever think about switching insurance companies to see if you could save some cash? Progressive makes it easy to see if you could save when you bundle your.

[Elizabeth Goytin]

Home and auto policies. Try [e-mail] Progressive Casualty Insurance Company and affiliates.

[Brooke Gladstone]

Potential savings will vary. Not available in all states.

[Michael Ohinger]

From WNYC in New York, this is ON THE media. I'm Michael Oinger.

[Brooke Gladstone]

And I'm Brooke Gladstone. So where to begin? The conflicting depictions of conditions on the ground in Los Angeles is yet another among many vivid illustrations of the stark contrast between the hellscape inhabited by the president and life on planet Earth. I've deployed thousands of National Guard troops.

[Michael Ohinger]

And hundreds of Marines to protect federal.

[Brooke Gladstone]

Law enforcement from the attacks of a vicious and violent mobile.

[Michael Ohinger]

And some of the radical left, they say, oh, that's not nice.

[Brooke Gladstone]

Well, if we didn't do it, there.

[Michael Ohinger]

Wouldn'T be a Los Angeles.

[Brooke Gladstone]

It would be burning today just like.

[Michael Ohinger]

Their houses were burning a number of months ago.

[Brooke Gladstone]

Then there's the actual experience of many Angelenos guilty of believing their own lying eyes. They saw largely peaceful protests with violence and vandalism mostly limited to a few blocks. Ugly to be sure, but being managed by local law enforcement with hundreds of arrests and a curfew, but without much help from the National Guard troops deployed by Donald Trump.

[Michael Ohinger]

There were about three hundred and fifteen.

[Brooke Gladstone]

That actually were mission tasked.

[Michael Ohinger]

The rest were sitting around about 1700 for days. You saw them sitting quite literally on the ground without fuel, without water, without food, without training.

[Brooke Gladstone]

California Governor Gavin Newsom speaking on the daily podcast Thursday morning, the first night.

[Michael Ohinger]

They were deployed, they became a destination for the protests and it was local.

[Brooke Gladstone]

Police that actually had to protect them.

[Michael Ohinger]

That's how ridiculous this whole thing is. This is theater. It's madness. It's unconstitutional. I've said it's immoral. And they're using these brave men and women as pods.

[Brooke Gladstone]

There are widely circulated photos of National Guardsmen crammed together sleeping on the concrete floor of a loading dock with no bedding, no funds allotted for food and and too few Porta Potties, according to the San Francisco Chronicle. And job satisfaction was also in short supply. Sarah Strider of the Secure Families Initiative, which supports military spouses, children and veterans, told the Guardian that, quote, the sentiment across the board right now is that deploying military force against our own communities isn't the kind of national security we signed up for, and that families are scared not just for their loved ones safety, although that's a big concern, but also for what their services use to justify. Half a dozen National Guard members told Chris Purdy of the Chamberlain Network, created to, quote, mobilize and empower veterans to protect democracy. Much the same thing, he said. Morale is not great is the quote I keep hearing.

[Michael Ohinger]

The truth is, President Trump and his media have had a rough go controlling this narrative. But before we go there, however, let's return to February 2017, when our show published one of its breaking news consumers handbooks, concise reviews of misleading information tropes actually, that invariably turn up in coverage of recurring catastrophes like plane crashes, natural disasters or coups. We called that one the Protest edition. And what played out then is playing out now. For instance, item one TV news will fixate on incidents of violence, even if rare and atypical of the overall event over the weekend.

[Dayan Nissenbaum]

Protesters setting up fireworks right there, police.

[Michael Ohinger]

Officers right nearby, a line of self driving vehicles set on fire, crowds shutting.

[Dayan Nissenbaum]

Down the 101 Freeway downtown, LAPD officers.

[Elizabeth Goytin]

Trying to move them off.

[Michael Ohinger]

All true. But when the facts are insufficiently dreadful, officials and partisans will often cherry pick, embroider or invent events to sell their story. Remember weapons of mass destruction?

[Brooke Gladstone]

I have law enforcement officers that are being shot at, that are being injured, that are being hurt, vehicles being damaged.

[Dayan Nissenbaum]

Things being burned, and they're calling it peaceful. It is a disgusting display of partisan politics.

[Michael Ohinger]

Be wary of references to victims without names or evidence. And by the way, evidence of past events always seems to resurface. Police cars were vandalized and there's footage of at least one on fire. But CBS News noted that one widely shared video of blazing police cars posted by far right conspiracist Alex Jones and Texas Senator Ted Cruz actually came from coverage of the protests galvanized by the murder of George Floyd five years ago. Also from our Consumers Handbook, we found that coverage of protests often reports on whether the protesters left a mess or helped clean up. Not cleaning up is a subtle jab symbolic of the dissenters moral turpitude. The cleanup here in downtown Los Angeles is daunting. Many of the city, federal and state.

[Elizabeth Goytin]

Buildings and private businesses have been blanketed.

[Dayan Nissenbaum]

With graffiti, much of it so obscene.

[Michael Ohinger]

We can't even show you. In the LA case, cleaners employed by the city quickly moved in to remove graffiti and burned out Waymo cars. But in LA's Little Tokyo, where the resolutely pro immigration Japanese American National Museum was defaced by graffiti earlier this week, peaceful demonstrators showed up to help clean up the mess. Either way, no matter what anyone tells you, LA is not a trash heap. Here's something we didn't talk about in that handbook. Five years Outright fakery, especially online videos of LA police allegedly using riot shields, tear gas and shock weapons against demonstrators, was actually recorded last summer in Nairobi, Kenya, during protests against a proposed tax hike. And footage of the National Guard supposedly clashing with protesters was actually of the January 6 Capitol riot, arguably a real attempt at insurrection.

[Brooke Gladstone]

Those pictures I mentioned of the National Guard sleeping on the concrete floor of a loading dock? Those also were debunked. Grok X's chatbot confirmed for one user that, quote, the photos likely originated from Afghanistan in 2021 during the National Guard's evacuation efforts in Operation Allies Refuge. A fake fact check since the Pentagon confirmed that those photos were from la. So much confusion, perplexity, disorientation, made so much worse by AI Example, here's old fashioned fakery.

[Dayan Nissenbaum]

People that are causing the problem are professional agitators.

[Michael Ohinger]

They're insurrectionists.

[Brooke Gladstone]

They're bad people.

[Elizabeth Goytin]

They should be in jail.

[Brooke Gladstone]

And here's newfangled fakery.

[Michael Ohinger]

Why are you rioting? I don't know. I was paid to be here and I just want to destroy stuff.

[Brooke Gladstone]

Not repurposed footage. Not even an actor, but a digital creation rendered entirely by AI. This angle was impressively covered this week in Wired, which detailed other cases in which chatbots like OpenAI labeled true photos as repurposed frauds and stood by their assessments in the face of irrefutable evidence. The chatbot's record of sorting fact from fiction was truly dreadful, and for whatever reason seemed almost always to favor the hyper reality of Donald J. Trump. But a movement whose leaders can characterize January 6th as just a patriotic tourist outing gone awry while simultaneously labeling it a false flag operation run out of the FBI with a straight face has no need of AI.

[Michael Ohinger]

We are staying here to liberate this.

[Brooke Gladstone]

City from the socialist and the burdensome.

[Elizabeth Goytin]

Leadership that this governor and that this.

[Brooke Gladstone]

Mayor have placed on this. A press conference with Homeland Security Secretary Christine home Thursday in la, California Senator Alex Padilla tried to ask a question. Senator ALEX PADILLA I have questions for.

[Michael Ohinger]

The secretary because the fact of the.

[Brooke Gladstone]

Matter is half a dozen violent criminals.

[Elizabeth Goytin]

That you're rotating on your.

[Michael Ohinger]

On your hands.

[Elizabeth Goytin]

Off. On the ground.

[Dayan Nissenbaum]

On the ground.

[Brooke Gladstone]

Hands behind your back.

[Michael Ohinger]

Hands behind your back.

[Brooke Gladstone]

If you're in my hands, go ahead. Behind my back.

[Michael Ohinger]

All right, cool.

[Brooke Gladstone]

One hand. Lay flat.

[Michael Ohinger]

Lay flat. Other hand, sir.

[Brooke Gladstone]

Noem later said he wasn't identified. He clearly identified himself and he was handcuffed by agents of the Secret Service and the FBI who frog marched him out of the room and forced him to the ground in the hallway because he was, quote, disrespectful. Senator Padilla, if this is how the.

[Dayan Nissenbaum]

Department of Homeland Security responds to a.

[Michael Ohinger]

Senator with a question, you can only.

[Brooke Gladstone]

Imagine.

[Dayan Nissenbaum]

What they're doing to farmworkers, to.

[Michael Ohinger]

Cooks, to day labor out in the Los Angeles community and throughout California and throughout the country. We already have a statement from the Department of Homeland Security that has accused Senator Padilla of being disrespectful, as if.

[Dayan Nissenbaum]

That is a rationalization for violence.

[Brooke Gladstone]

Connecticut Senator Chris Murphy they're going to.

[Elizabeth Goytin]

Spin this, but I'm begging my Republican colleagues, don't let them do it. Protect our ability as servants of the people to speak up for the people they we represent.

[Michael Ohinger]

Make sure that we do not normalize this kind of violence.

[Brooke Gladstone]

Oh, but they have. It's an essential part of the project. Disrespect is now a crime against the state. The president is livid at the idea that someone might spit at his police officers or soldiers. And he says that's a common thing. Really. They get up to him this far away and then they start spitting in their face.

[Michael Ohinger]

That happens.

[Brooke Gladstone]

They get hit very hard. This fervent free speech advocate likewise threatened anyone who would dare protest at his big, beautiful parade this weekend. Veteran ABC journalist Terry Moran, a longtime Washington correspondent and past co anchor of Nightline, was fired from the network this week after a late night post on X condemning Stephen Miller, who designed Trump's immigration policy. He described Miller as, quote, a man who is richly endowed with the capacity for hatred, whose hatreds are his spiritual nourishment. He eats his hate. He added that Mr. Trump is a world class hater, but his hatred is only a means to an end, which is his own glorification. It was a Hail Mary of sorts, I guess, like the one thrown by another newsman pushed to the brink in the movie network.

[Michael Ohinger]

I want you to get up right now. Get up.

[Elizabeth Goytin]

Go to your windows, open them and.

[Brooke Gladstone]

Stick your head out and yell, I'm as mad as hell and I'm not.

[Michael Ohinger]

Going to take this anymore.

[Brooke Gladstone]

In 1976, that film was a satire and the main character a loon. But it doesn't seem so loony anymore.

[Michael Ohinger]

Coming up, how fake emergencies make for real emergency powers.

[Brooke Gladstone]

This is on the Media.

[Michael Ohinger]

On the Media is supported by Progressive Insurance. Do you ever think about switching insurance companies to see if you could save some cash? Progressive makes it easy to see if you could save when you bundle your home and auto policies. Try [e-mail], progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states.

[Elizabeth Goytin]

This week on the New Yorker Radio.

[Dayan Nissenbaum]

Hour, I'll talk with Barbra Streisand about.

[Brooke Gladstone]

Her new album and a whole lot more. I did not like performing. Yeah.

[Dayan Nissenbaum]

If I saw one person in the.

[Brooke Gladstone]

Audience not applauding, I thought, what's wrong? What didn't he like? Did that ever happen once?

[Elizabeth Goytin]

Barbra Streisand joins me on the New.

[Dayan Nissenbaum]

Yorker Radio Hour from WNYC studios. Listen, wherever you get your podcasts.

[Brooke Gladstone]

This is ON the media. I'm Brooke Gladstone.

[Michael Ohinger]

And I'm Michael Olinger. An alarming number of journalists who are covering the protests in Los Angeles have been shot at by law enforcement. There was the Australian journalist who was on camera when she was shot from behind with a rubber bullet.

[Dayan Nissenbaum]

Firing rubber bullets at protesters, moving them.

[Michael Ohinger]

On through the heart of la. There were no visible protesters near her.

[Dayan Nissenbaum]

You just shot the.

[Michael Ohinger]

Then there was the New York Post photographer who was shot in the head with a rubber bullet.

[Brooke Gladstone]

My throat. What happened?

[Michael Ohinger]

Just got shot in the head. He was treated in a hospital for whiplash and was left with a huge bloody bruise on his forehead. A British photographer was also hospitalized after a plastic bullet penetrated his thigh. He needed emergency surgery. Two local LA reporters were hit with pepper balls and tear gas.

[Dayan Nissenbaum]

I got hit in the head.

[Michael Ohinger]

An NBC LA reporter and his team were hit with pepper ball projectiles and tear gas as well. A Univision crew was also sprayed with pepper balls. Press. Press.

[Brooke Gladstone]

We're all pressed.

[Michael Ohinger]

To date. There are more than 30 cases reported of journalists being hit, according to Reporters Without Borders, including Sergio Olmos, an investigative reporter at Calmatters. He's been tracking protests outside of federal buildings, where local law enforcement have acted as a buffer between demonstrators and federal forces. Called in by the White House last Sunday, he was struck while filming an officer open fire. I got hit in the chest. It wasn't targeted, I don't think. If you see the video, I was in a crowd. Lots of people are getting hit. I've been shot dozens of times by different agencies over the years. I wear a helmet and protective eyewear to limit the possibility of serious injury. But on Sunday, the amount of less lethal rounds. These are like 40 millimeter sponge rounds fired into the crowd on Sunday by LAPD and the LA County Sheriff's. Most amount I've seen in a single day. I mean, hundreds of rounds. This went on for hours, from the early afternoon all the way until the nighttime. And who have they been shooting them at? Mostly protesters. I mean, some press has been getting hit just indiscriminately. I mean, hundreds of rounds are being shot into the crowd. So if you're in the crowd covering it, photographers and the like, you're gonna get hit with one. And again, they're not non lethal. So if you shoot them at the head or neck area, they can cause severe injury, you know? Linda Tirado In Minnesota in 2020, a.

[Dayan Nissenbaum]

Journalist shot by police during the 2020.

[Brooke Gladstone]

Minneapolis unrest is dying from her injury.

[Michael Ohinger]

Police shot her in the face with a rubber bullet, also known as a, quote, less lethal. She suffered a traumatic brain injury and.

[Dayan Nissenbaum]

Was blinded in one eye.

[Michael Ohinger]

She's now in hospice. She's dying from a less lethal round. Every law enforcement agency from the city, the county, state, has to get trained on how to use these less lethal rounds. And they say in the training not to aim for the head or neck area. What we saw in Los Angeles on Sunday especially, but all through these protests since Friday, is less lethal rounds being shot at eye level towards people hitting people in the head. Donald Trump is framing these protests as an emergency, a crisis that justifies the deployment of National Guard troops and Marines. On Truth Social, he called participants, quote, violent insurrectionist mobs. Based on your reporting, is any of that warranted? This is not an insurrection. It's a protest. It's an American protest. Right? People are going out there and saying, I disagree with what the government's doing. These are not people who are trying to stop the certification election. They're not storming buildings and taking over the Government. I mean, they're standing outside of a federal building chanting signs, right? On Sunday, you saw four Waymo cars burned, right? That was in an intersection outside of a federal building. That was a violent act, burning four Waymo cars. I mean, nobody was in them. But most people that I've talked to were like, that doesn't look good. That being said, it is Los Angeles. They burned a bus here after the Dodgers won the World Series. The local police can handle that. You do not need the Marines here. Who here is asking for the federal government to send in the National Guard? The mayor said, no, nobody from the county is asking for that. And the governor is not asking for that. Asking for that. It's nobody here. This is a civil protest. There are women and children who go to these protests. There are people who bring their dogs, Right? You got hit on Sunday and yet you've been back out there every day since. It doesn't seem like you're deterred. No, no, it's the job. I'm a professional journalist. The public wants to know what's going on. They pay me every two weeks at Calmatters to be out there and figure out what's going on. It's my job. I'm going to be out there. All right, Sergio, thank you so much. Thank you so much. Sergio Olmos is an investigative reporter for Calmatters.

[Brooke Gladstone]

As Sergio Almas just said, who here is asking for the federal government to send in the National Guard? Neither the mayor of Los Angeles nor the governor of California requested the 4,700 National Guard members and Marines activated by the administration. On Thursday, a federal judge ruled that the president's federal that is taking over the California National Guard to quell the protests against his immigration policy was illegal because he didn't follow congressionally mandated procedures. The White House instantly, I mean, instantly appealed, almost as if they were expecting it. And that very evening, a three judge panel agreed to stay the previous order. That would have taken effect at midday. A hearing's now scheduled for Tuesday. The President says he's just acting to end the chaos. But is that a viable legal justification?

[Elizabeth Goytin]

Well, it's certainly unprecedented.

[Brooke Gladstone]

Elizabeth Goy Tin is the Senior director of the Liberty and National Security Program at the Brennan center for Justice.

[Elizabeth Goytin]

The law that authorizes the President to deploy federal armed forces to suppress civil unrest is the Insurrection Act. And he hasn't invoked the Insurrection Act. He's relying on an obscure law that has not previously been used on its own to quell civil unrest. It's been used sort of as a Supplement to the Insurrection Act. Ordinarily, federal armed forces are prohibited by law from engaging in law enforcement activities. That's the Posse Comitatus Act. That law prohibits federal armed forces from directly participating in law enforcement unless it is expressly authorized by an act of Congress or by the Constitution. And so you need to have some express legal authorization. You can't just say, this looks like chaos to me, so I'm going to bring in the military.

[Brooke Gladstone]

The President hasn't invoked the Insurrection act, but he has named a statute to justify his actions. 10 USC 12,406.

[Elizabeth Goytin]

That's right. It's a mouthful. It can only be used to quell civil unrest, like the President is doing if there is a rebellion or a threat of rebellion against government authority, which basically means an insurrection, an attempt to overthrow the government. Or it can be used if the President is unable to execute the law without using the military. And certainly on Sunday, when Trump federalized the National Guard and deployed them into Los Angeles, those conditions were not present.

[Brooke Gladstone]

There's another element. The President sent in the Marines, and he gestures to a theory that I guess has been around for a while, that the President has an inherent constitutional authority to use troops to protect federal property and functions.

[Elizabeth Goytin]

That's exactly right. It's a doctrine that has been created by the executive branch, not by the courts. Now, the executive branch has pointed to what I'm going to call dicta in a couple of court opinions to support this theory. Dicta means that it's something that really wasn't necessary to resolve the issues in the case, and therefore it's not binding. So this is kind of a way to get around the Posse Comitatus act, and that is really problematic from a legal perspective.

[Brooke Gladstone]

Right. So last Saturday, the President issued his memorandum authorizing the deployment of military forces against the protesters. But you say what's in that memo is much more far reaching than what's happening now in la.

[Elizabeth Goytin]

I mean, the memo is not limited to Los Angeles. It doesn't even mention Los Angeles. The memo authorizes deployment of federal armed forces anywhere in the country where a protest against ICE activity is occurring, whether or not that protest involves any violence or anywhere a protest is likely to occur.

[Brooke Gladstone]

Likely to occur.

[Elizabeth Goytin]

Likely to occur. I mean, I would expect that anytime there is ice activity in a blue City, the President is going to take the position that protests are likely.

[Brooke Gladstone]

So when have we seen that in our country before?

[Elizabeth Goytin]

A nationwide preemptive deployment of the military to police peaceful protests has never happened in the history of this country. That's something that happens in authoritarian regimes.

[Brooke Gladstone]

And we have all of these laws to prevent that from happening. And a few rather vague and generally phrased exceptions that the President cites but hasn't actually even met the conditions for.

[Elizabeth Goytin]

That's right. Now, of course, if the courts come in and say you can't rely on these obscure legal authorities that haven't been used in this way in the past, he could very well then turn to the Insurrection Act. My concern, frankly, is that the deployment of federal troops has been so provocative and so escalatory that the presence of the troops could create the conditions under which there could be an argument made that the Insurrection act is appropriate. Of course, that would be a misuse of the Insurrection Act.

[Brooke Gladstone]

You mean to pick fights?

[Elizabeth Goytin]

Exactly. That's probably the best way to put it.

[Brooke Gladstone]

And Gavin Newsom himself has said it's making things worse. I don't think people realize that, though. Watching tv, you might just see a brief clip with some smoke or people running.

[Elizabeth Goytin]

Yeah, it's a real problem. But there has been some very good reporting on the ground. And when the President says Los Angeles is being destroyed, it's being terrorized, it's being obliterated, what you're witnessing in California.

[Brooke Gladstone]

Is a full blown assault on peace, on public order, and a national sovereignty carried out by rioters bearing foreign flags with the aim of continuing a foreign.

[Michael Ohinger]

Invasion of our country. We're not going to let that happen.

[Elizabeth Goytin]

I mean, the reality is if a city is being destroyed and obliterated, the mayor of that city is going to ask for help.

[Brooke Gladstone]

There are laws against deploying troops in this way. What are the dangers? Why do we have those laws to begin with?

[Elizabeth Goytin]

If the President can turn the military inward against the people, that can very quickly become an instrument of tyranny. And that is why there is a tradition in Anglo American law, going back centuries to the Magna Carta, against using the military for civilian government and in particular for law enforcement. But there are also very practical reasons why we don't have the military acting as a domestic police force. The military is not trained in how to handle civil unrest, how to handle civilian populations in a way that de escalates conflict while respecting the constitutional rights of Americans. And certainly they don't join the army to police their fellow citizens.

[Brooke Gladstone]

Now, let me pivot for a second. You are something of an expert on the President's ability to assume emergency powers, declaring national emergencies as a reason to do things that he otherwise might not be able to do. And so far in this second term, he's declared eight national emergencies.

[Elizabeth Goytin]

Is that a record that far outpaces the second most prolific user of national emergency powers, which was President Trump in his first term? And I'm talking now about emergencies declared under the National Emergencies act, which was passed in 1976. And yes, within that 50 year history, President Trump is using emergency powers far more frequently. But also he is using emergency powers to get around and short circuit Congress in implementing his policy agenda, very different.

[Brooke Gladstone]

From the way previous presidents have used those powers. But you worry that he's opened the to this kind of use and that Biden actually stepped through that door when he used emergency powers to forgive student loan debt.

[Elizabeth Goytin]

Emergency powers are not meant to address longstanding problems, no matter how serious, and they are not meant to implement permanent solutions. They are intended to address sudden, unforeseen crises. That's the definition of an emergency that Congress could not have foreseen and cannot act quickly or flexibly enough to deal with after the fact. That is the role that they play in our constitutional system.

[Brooke Gladstone]

You and your colleagues have made a list of 150 statutory powers that become available to presidents when they declare a national emergency. What are some of the more salient ones you could cite?

[Elizabeth Goytin]

There's a provision of the Communications act that allows the president to take over or shut down radio or wire communications facilities in a national emergency or if he proclaims a threat of war. This was last used during World War II when wire communications meant telephones or telegrams and most American households didn't even own a telephone. Today, it could arguably be used to try to assert control over US Based Internet traffic. There's also a law that allows the president to freeze the assets of almost anyone, including Americans, who are deemed by the executive branch to be contributing to a foreign threat. And there's a law that allows the government to exercise control over domestic transportation in a national emergency. So these are incredibly potent authorities, and the potential for abuse of them, I think, is pretty alarming.

[Brooke Gladstone]

You're a lawyer. You care about the law, but you've written that you think it's a mistake to focus on the statutory power that Trump is using. You think there's a danger in getting bogged down in these legalistic details?

[Elizabeth Goytin]

I do, because the legal authorities that Trump has invoked are obscure and they're complicated and they're confusing. And I do think some of the coverage has attributed too much significance to the fact that he has not yet invoked the Insurrection Act. The powers that this administration thinks it has under the authorities it has invoked are very similar. I think what we are going to see on the ground in the coming days is going to look very much like what we would see under an insurrection act invocation. There is a big picture here that I think might be getting a little bit lost in some of the coverage.

[Brooke Gladstone]

There's something that we've heard a lot. We heard it during the first term from Masha Gessen on our show. We've heard it a lot during this second term, that our institutions cannot save us. The law cannot save us. So focusing on the law is a distraction. It's the state of our democracy, not the infraction of this law or that, that matters most.

[Elizabeth Goytin]

I think our institutions alone cannot save us, but I think they're very important. And we really have seen the courts standing up to some of the overreach.

[Brooke Gladstone]

Oh, yeah, he's really losing in the courts. But the courts don't have armies or any power to force the president to comply.

[Elizabeth Goytin]

And we definitely have seen instances of the administration that I would say is not good faith compliance with court orders.

[Brooke Gladstone]

Judges have said that, too.

[Elizabeth Goytin]

Yes, but there has not been a wholesale rejection of the court's authority by this administration at this point. And I think there's a reason for that. Huge majorities of Americans say that the president has to obey the courts. And this president does care about public opinion. Maybe not all parts of the public, but when you have, you know, 86, 90% of Americans saying that the president has to obey court orders, I think that's something the administration pays attention to. So similarly with these protests, the courts have a role, but there's absolutely a role here for the public to be condemning these actions. And we are seeing in polls that Americans do not support deployment of the National Guard and the Marines in Los Angeles. So that is important. This is about our institutions, absolutely. But it's also about our values, our voice as citizens, and whether Americans are going to stand up for their own democracy.

[Brooke Gladstone]

So along with the courts, if you want to protect the right to assemble and to protest, you need to do it more in the face, even of long guns.

[Elizabeth Goytin]

One of the things that's incredibly concerning is that there are people who otherwise would be protesting who are staying home. I was on the BBC NewsHour this morning, and right before they came to me, they interviewed a woman who had come out to protest. But when she saw what was happening and realized that she might be arrested, she said, well, I'm just going to go home. One of the reasons why the military should not, as a general rule, be policing protest is because it has the effect of chilling the exercise of people's constitutional rights to protest and to protest peacefully.

[Brooke Gladstone]

Elizabeth, thank you so much.

[Elizabeth Goytin]

My pleasure. Thank you for having me.

[Brooke Gladstone]

Elizabeth Goytin is senior director at the Brennan center for Justice.

[Michael Ohinger]

Coming up, a new documentary reveals new information about the killing of a prominent Palestinian American journalist.

[Brooke Gladstone]

This is on the Media.

[Michael Ohinger]

On the Media is supported by Progressive Insurance. Do you ever find yourself playing the budgeting game? Well, with the name your price tool from Progressive, you can find options that fit your budget and potentially lower your bills. Try [e-mail] Progressive Casualty Insurance Company and affiliates Price and coverage match limited by state law. Not available in all states. 50 years after Jaws scared an entire generation out of the water, I looked down.

[Brooke Gladstone]

There was this great big head, these big white teeth. Radiolab is pulling you back in.

[Dayan Nissenbaum]

It was just like so much fear.

[Michael Ohinger]

Building of what's gonna come out of that blue.

[Brooke Gladstone]

Listen to Swimming with Shadows, a Radiolab week of sharks.

[Dayan Nissenbaum]

Anything you dig down on is fascinating.

[Brooke Gladstone]

These creatures wherever you get podcast. This is on the Media. I'm Brooke Gladstone.

[Michael Ohinger]

And I'm Michael Loewinger. Israel's war in Gaza has now killed an estimated 50,000 Palestinians. And according to the World Health Organization and others, the Israeli blockade on food and aid is leading to mass starvation. And when it comes to journalists, more have been killed in this war than in the first year of any other conflict documented by the Committee to Protect Journalists. But the first American journalists killed by Israeli Defense Forces in the west bank died a little over a year before October 7th. The news broke this morning that Al Jazeera correspondent Shireen Abu Akhli was killed while covering an Israeli military raid in the Palestinian town of Jenin.

[Brooke Gladstone]

She was shot in the head while.

[Elizabeth Goytin]

Reporting in the occupied West Bank.

[Brooke Gladstone]

She was wearing a flak jacket with press marked on it.

[Michael Ohinger]

Sherene Abu Akleh was a Palestinian American born in Jerusalem. She spent her early childhood in New Jersey and reported on the occupied territories for over two decades.

[Dayan Nissenbaum]

Shireen started her career in the 1990s when there were few Arab women reporting on issues that affected their communities. She inspired a generation of other Arab.

[Michael Ohinger]

Women to do the same.

[Dayan Nissenbaum]

She's like a Christiane Amanpour figure, you know, she was steady, she was empathetic. She put her life on the line repeatedly to cover the Palestinian story.

[Michael Ohinger]

Dayan Nissenbaum is a former foreign correspondent for the Wall Street Journal and the co executive producer of the new documentary who Killed Shireen? A film for Zitteo, the media organization founded by former MSNBC host Mehdi Hassan Dayan told me that he was troubled by the contradictory explanations that the IDF gave for Shireen's death.

[Dayan Nissenbaum]

First they came out with the misinformation, saying that she was, you know, shot by militants. And then they said she was killed in the crossfire. And then ultimately they issued this statement where they try and claim it's not possible to determine who did it. They sort of have this word salad that misrepresents exactly what the conclusion was.

[Michael Ohinger]

Can you read from that statement and tell me what struck you about it?

[Dayan Nissenbaum]

It this was the final investigation that they did. So it starts off saying, you know, following the completion of a series of investigations, it appears that it is not possible to unequivocally determine the source of the gunfire which hit Mis Abu Akle. So when this statement came out, there was actually a lot of stories that came out and said, Israeli military says it's impossible to determine who killed Shreen Abu Akleh. The next sentence, though, says, however, there is a high possibility that Misabu Akleh was accidentally hit by IDF Israeli military gunfire that was fired toward suspects identified as armed Palestinian gunmen during an exchange of fire in which life risking widespread and indiscriminate shots were fired towards IDF soldiers. Now, this statement is a master class in obfuscation. It sounds like the Israeli military was firing at militants that were firing at them and that Shireen was somehow caught in the crossfire. And that is the narrative most people have in their head, which is not actually what the Israeli military concluded. At the end of the day, what the Israeli military concluded was that it was highly likely that an Israeli military soldier falsely identified Shireen as a militant and deliberately shot her.

[Michael Ohinger]

There were Palestinian militants in the area, but they were some 100 meters away from where she was killed.

[Dayan Nissenbaum]

There were no militants near her, in front of her, behind her. There was no gunfire coming from that direction in any way. So this idea that she was caught in a crossfire is not what the Israeli military itself concluded. And there was actually a Palestinian camera lined up at the end of the road so that the Israeli soldiers could look down and see that there were journalists there in their blue flak jackets and that said press. That sort of obfuscation was one of the things that drove us mad and was sort of a catalyst for us wanting to do the film and independent.

[Michael Ohinger]

Investigations following Shireen's death. From the New York Times, the Associated Press, the Washington Post. They all concluded that she was killed by an Israeli soldier, though none of these outlets named the shooter. The Biden administration initially said it would hold this person accountable for killing an American citizen, not to mention an independent journalist.

[Brooke Gladstone]

The United States will continue to insist.

[Elizabeth Goytin]

On a full and transparent accounting of her death and will continue to stand up for media freedom everywhere in the world.

[Michael Ohinger]

But in the film, you spoke to Senator Chris Van Hollen, along with some other former government officials who seem to suggest that much more could have been done to investigate the killing.

[Dayan Nissenbaum]

U.S. officials told us that it was impossible for them to determine if a human rights violation had been committed without talking to the soldier and trying to understand what his intent was. The U.S. government wanted to interview the soldier, and Israel refused. Israel even refused to provide the US Government with the name of the soldier. You know, they did everything they could to hide his identity. And, you know, as a journalist, when someone's working so hard to hide something.

[Michael Ohinger]

You want to know even more.

[Dayan Nissenbaum]

Exactly. Exactly.

[Michael Ohinger]

You interviewed a Biden official who in your film is anonymous. We never see his face. It's kind of obscure and his voice is distorted as well. He told you that the government at the time believed that pushing too hard was risky for U. S. Israel relations.

[Dayan Nissenbaum]

I think what it came down to was different pressure within the administration to not try to anger the government of.

[Elizabeth Goytin]

Israel too much by trying to force.

[Dayan Nissenbaum]

Their hand at saying that they'd intentionally killed the US Citizen. They didn't want the killing of. Of an American journalist to upset relations between America and Israel.

[Brooke Gladstone]

That's correct.

[Dayan Nissenbaum]

I'm actually somewhat hopeful that that source is going to go public in the.

[Michael Ohinger]

Next couple of weeks as a result of your film and the publicity that it's garnered.

[Dayan Nissenbaum]

Yes. You know, one of the things that the former Israeli official says, the advisor to the prime minister at the time, was that this wasn't a high priority for President Biden. He didn't. Didn't bring it up with the prime minister.

[Michael Ohinger]

You ultimately did something that the Biden administration could not, which is name the killer. One of your early leads was that he was part of an elite Israeli IDF unit called Duvdivan.

[Dayan Nissenbaum]

The Israeli military had said that in their final investigation, Duvdivan, which has been lionized with this TV series called Fouda, which is on Netflix. Well, enough. One more, One last kill.

[Brooke Gladstone]

You make sure we're the ones pulling, pulling the trigger. Maya Nisha just got into Hezbollah car.

[Dayan Nissenbaum]

They were actually like an undercover unit that would work in the Palestinian territories. They would dress up as Palestinians. They dressed up as doctors and gone into hospitals in Jenin to kill suspected militants.

[Michael Ohinger]

They sometimes refer to themselves as like the cherries because they're the cherry on top of the security forces.

[Dayan Nissenbaum]

Exactly. The duvdivan means cherry. And so we had a couple of different leads. One sort of tantalizing lead we got was there was a Israeli filmmaker named Oren Rosenfeld who had done a film on Duvdivan and how they'd become this celebrated Hollywood unit. And he had been able to arrange what I think is the only meeting with this Israeli soldier. Right after the killing. He was brought in to meet the soldier, and the guy was wearing a balaclava. He didn't reveal his name. And he sat down with him and gave his version of events saying all he saw was a helmet, but it wasn't enough for us to go anywhere with it.

[Michael Ohinger]

How did you ultimately uncover this guy's identity?

[Dayan Nissenbaum]

What it was was plugging into a network of current and former Duvdivan soldiers. And ultimately we did get one Israeli soldier to sit down on camera to talk to us about what happened that day. And we went into the key interview with one name of a guy we thought it might be. And, you know, we got to the day of Shreeen's killing and asked this soldier, you know, what's your understanding of what happened that day? And he said to us, well, the first thing you need to know is that that guy is dead now. And that corroborated the tip that we had that he was dead. I had the name of the guy we thought it was, and I was like, yeah, it was Liav. Right? And he's like, what? No, no, that guy is great. But that's not who did it. It was alone. It was alone Scaggio. And it worked exactly as I was hoping it. It was one of these really like magical interviews where you go in with a piece of information, it might be right or wrong, and they do exactly what you hope, which is correct. You Alon Scaggio was at the time a 20 year old Duvdivan soldier on his first deployment in the west bank. And he ultimately was killed last year in Jenin by Palestinian militants. So there was a lot of irony.

[Michael Ohinger]

In that he was killed in the same place where he sniped Shereen Abu Akleh.

[Dayan Nissenbaum]

Right.

[Michael Ohinger]

The New York Times has since independently corroborated this reporting. And on the day of the premiere of your film for Zateo, you actually reached out to the family of Alan Scaggio. Tell me about your conversation with his mom.

[Dayan Nissenbaum]

I definitely wanted the family to know before the film came Out. And I actually thought that they did know because his dad was part of the Israeli police department. They had gone out and talked about his death on Israeli television multiple times. I called her up out of the blue and said, I just want you to know that we're gonna be identifying your son as the person who killed Srinabu Akle. And she didn't know, and she was surprised and didn't believe me. And she also had this false narrative in her own head. She said, well, Shireen was between militants when she was killed. And I had to say, well, no, actually, the Israeli investigation itself showed that there were no militants near her when she was killed. And she wanted to talk to the Israeli military. And so the Israeli military then called me back and said, the family is asking for you to not use his name in the film, or at least not use his last name. And I said, well, if we've got the wrong name, then the spokesperson said, that's not why I'm calling. We're calling to pass along the family's request. I've already told the family you're not likely to do that.

[Michael Ohinger]

And yet you went forward with it.

[Dayan Nissenbaum]

Yeah. At that point, we felt that it was important for Shireen's family and the American public to know who was responsible for killing the first American journalist in the west bank by Israeli forces.

[Michael Ohinger]

One of the most shocking details for me that you learned from a source is that after Alon was killed in Jenin, his unit was so upset that his name and legacy within the IDF had been stained by the fact that he shot and killed Shireen that they used a photo of her as target practice.

[Dayan Nissenbaum]

Yeah, that was also one of the most shocking things for us. And it speaks to, you know, a concerning mentality. Certainly not throughout the entire Israeli military, but certainly with this unit where they viewed Shireen as the enemy, as a villain, and. And there was nothing she did that day that made her an enemy. She was walking up the street in a flak jacket that said press to cover a military operation. She wasn't a threat. She wasn't amongst militants. She wasn't interviewing militants, but they viewed her as the enemy.

[Michael Ohinger]

There's a very moving moment in the film when you ask your friend and co reporter Fatima Abdul Karim, who now works for the New York Times, what she does differently as a reporter since Shireen was killed.

[Elizabeth Goytin]

I don't think that I do things.

[Michael Ohinger]

Differently in my work, but I do things differently as a mother now.

[Dayan Nissenbaum]

Really? Like what?

[Michael Ohinger]

I hug my children more often. I always kiss on the forehead because it might be the last time.

[Elizabeth Goytin]

You never know.

[Michael Ohinger]

In fact, Fatima Abdul Karim told you that Shireen's killing marked a turning point in how Israel treated Palestinian journalists in that no matter their conduct, they would be regarded as terrorists. Shrine's funeral was ultimately attacked by Israeli forces. And the narrative that Palestinian journalists are dangerous is something that we've actually heard quite a bit. In the wake of October 7th, you.

[Elizabeth Goytin]

Start realizing that they're not just trying to kill Palestinian journalists physically.

[Brooke Gladstone]

They're also trying to pose doubt on our words. We are not credible enough.

[Elizabeth Goytin]

We are not good enough as journalists. And that's not true.

[Dayan Nissenbaum]

I do think it would be great for people to reflect on how much Palestinian journalists are putting their lives on the line. They're the only eyes and ears we have in the Gaza Strip to what's happening because Israel refuses to let foreign journalists in to operate freely. Ali Samoudi, who's also in the film, who was shot and injured that day.

[Michael Ohinger]

Shireen's producer.

[Dayan Nissenbaum]

Shireen's producer, yeah, Was detained about a week before the premiere of the film. He was arrested in Jenin, where he lives. And the Israeli military has actually admitted that they don't have any evidence to charge him with any crimes. But instead of releasing him, they are holding him without charge under the country's administrative detention laws. You know, the Israeli military has killed, you know, nearly 200 Palestinian journalists in Gaza, making Israel the most dangerous country in the world now for journalists.

[Michael Ohinger]

You end the film by saying that many more Americans and journalists have died as a result of the Biden administration's failure to hold the IDF and the shooter accountable. How do you know that?

[Dayan Nissenbaum]

Well, this is something that Senator Chris Van Hollen also says in the film. And it's our belief that the Biden administration's failure to hold Israel to account for killing Shireen, which was clearly a mistake. And their failure to get Israel to change its rules of engagement in any significant way has led to the Israeli military feeling a sense of impunity in how it operates in the west bank in Gaza. A statement the Israeli military spokesperson put out in December after they deliberately targeted two Palestinian journalists in Gaza. They called them, quote, unquote, combat propagandists who were aligned with Palestinian militant groups in the in the Gaza Strip. And the tweet from the chief Israeli military foreign spokesperson said wearing a blue vest does not turn a terrorist into a journalist.

[Michael Ohinger]

Dayon Nissenbaum is the co executive producer of the film who Killed Shireen? Which you can watch on Zateo Dot com. Dayan, thank you very much.

[Dayan Nissenbaum]

Thank you so much for having me. I really appreciate it.

[Michael Ohinger]

That's it for this week's show. On the Media is produced by Molly Rosen, Rebecca Clark Callender, and Candice Wong.

[Brooke Gladstone]

Our technical director is Jennifer Munson with engineering from Jared Paul. Eloise Blondio is our senior producer and our executive producer is Katya Rogers. On the Media is a production of WNYC Studios. I'm Brooke Gladstone.

[Michael Ohinger]

And I'm Michael Olinger.

[Brooke Gladstone]

Since WNYC's first broadcast in 1924, we've been dedicated to creating the kind of content we know the world needs. In addition to this award winning reporting, your sponsorship also supports inspiring storytelling and extraordinary music that is free and accessible to all all.

[Elizabeth Goytin]

To get in touch and find out.

[Brooke Gladstone]

More, visit sponsorship wnyc. Org.