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"Giving the ACLU credit where credit is due"

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January 25, 2007

I was pleased to see that The Nation’s Feb. 5 article on the ACLU captured a strong sense of the dynamic work being carried out by today’s ACLU to help protect our civil liberties.

The article gives credit where it is due – to the strong, growing membership and dedicated staff and leadership that is continuing to focus on the pernicious threats to our civil liberties. I felt particularly proud when I read a quote from University of Chicago law professor Geoffrey Stone: "I would give the ACLU a grade of A since 9/11."

It saddens me that a small group of self-appointed critics are relentless in their effort to divert the precious resources of the ACLU staff, the lay leadership and public away from the serious civil liberties challenges of the day. They believe in the blood sport of tearing down fellow civil libertarians, and in trashing great ACLU leaders in hopes of making way for the unobtainable: perfect ACLU leaders. There is nothing new in the story; indeed, the board has already reviewed every item mentioned.

Notwithstanding these insidious attacks, the ACLU’s accomplishments since September 11, 2001, are truly remarkable. It has made unparalleled headway into the public dialogue about rights and liberties. It is a larger, better-financed, better-managed and more respected organization than it has ever been. And that’s a good thing, since our collective rights are under constant attack by those who would use the war on terror as a ruse to seize governmental power to spy, to torture, to deport, to bypass Congressional oversight, judicial review and public accountability like never before.

I was so proud of the ACLU in last month’s big win: the government subpoenaed the ACLU, seeking “any and all copies” of a government memo marked “secret” that was in the ACLU’s possession.

With great verve, the ACLU stood up to the Justice Department, calling the subpoena a transparent attempt to intimidate government critics and suppress informed criticism and reporting. The ACLU demanded that the subpoena be quashed. In less than a week, the government backed down. Said Anthony Romero, “This was a legal stand-off with enormous implications for free speech and the public’s right to know” (see release at release athttp://www.aclu.org/safefree/general/27727prs20061218.html). It was also an unusually speedy victory. Even so, the arrogance of the government’s action does not portend well for the future and unfortunately, many erosions of the Constitution remain intact. . .

There is some heavy lifting ahead for the ACLU. Among the issues the ACLU is tackling are:

  • Restoring habeas corpus and due process of law
  • Ending illegal government surveillance, protecting privacy from laws like the Patriot Act and investigating the scope of the damage done thus far to the privacy of Americans
  • Ending government torture and extraordinary rendition, including holding accountable leaders who authorize torture and other abuses
  • Ending the abuse of the state secrets privilege and Special Security Information designations that deny court review of human rights and constitutional violations
I am somewhat optimistic that a new Congress will allow the ACLU to make headway in restoring the damage done to our Constitution in the first six years of the Bush Administration. But we shouldn't fool ourselves. Oftentimes majorities in both parties voted for anti-liberty legislation like the Patriot Act. The damage done by six years of attacks on our civil liberties won't be fixed overnight. The ACLU leadership, both at the affiliate and national level, must work hard to build public support for the necessary changes.

Now more than ever, we need to give our full support to the ACLU and its critical work of protecting our civil liberties. The ACLU leadership is focused. It’s time for us to focus, too, on fighting the real enemies of civil liberties.

Thank you.

Laura W. Murphy

You can read the full article at http://www.thenation.com/doc/20070205/sherman.

A footnote: The Nation, in my opinion, did a very commendable job in pointing out the many, many significant contributions of the leadership and the staff of the ACLU. I think the article also captured and put on display the actions and motivations of the handful of critics of the ACLU.

It was nice to see that Scott Sherman’s account devoted considerable space to fairly addressing the successes of the ACLU and some of the challenges our beloved organization has faced, but as previously noted, these are old, old issues and the Board long ago exhaustively addressed them. I guess that some find it easier than others to move on. Finally, I sought clarification about a few issues where I thought the story did not accurately state the facts as I remembered them, and here’s what I learned:

The Combined Federal Campaign (CFC)
Neither Executive Director Anthony Romero nor any ACLU staff ever checked or intended to check ACLU employees against any government watch list, believing this to be unnecessary and contrary to the principles of the ACLU - an opinion later confirmed, in writing, by the ACLU’s outside legal counsel.

In 2003, the ACLU renewed its participation in the Combined Federal Campaign (CFC) – the world’s largest annual workplace giving campaign – which allows federal employees to contribute to a variety of participating charities. The renewal application included a certification that participants would not “knowingly employ individuals” on terrorist-related government lists. Since the ACLU doesn’t knowingly hire terrorists, no additional steps beyond the normal ACLU hiring process were deemed necessary. To reiterate, as Executive Director Romero confirmed in 2004, the ACLU has never checked any of its employees against any government list and never will. As a matter of principle, the ACLU would not have participated in the CFC if it believed that list-checking was a condition of participation.

When the CFC Director later stated for the first time that the government did expect participating charities to check employee rosters against the lists, the ACLU immediately withdrew from the CFC, at the cost of hundreds of thousands of dollars in contributions. In retrospect, the ACLU did go down the wrong path at the beginning on this matter. But with a fuller understanding of the facts, the leadership changed course in accordance with ACLU values and eventually led a coalition of nonprofit organizations in a successful challenge to the “blacklist” requirement. (See www.aclu.org/cfc) In large part because of the ACLU’s actions, the Office of Personnel Management, which runs the CFC, issued a new set of rules in 2005 that dropped the list-checking requirement.

Some also assert that only in the face of explicit questions from Kaminer and Meyers that Romero revealed the Combined Federal Campaign matter with the Board. In fact, at the earlier meeting of the Board's executive committee, Romero raised the CFC matter himself -- and he was also the one who raised the CFC with the full Board. While he has stated that in hindsight he should not have signed the agreement, he did not attempt to keep this matter from his board. This is another clear example of where a few critics take an issue and twist and distort it in an effort to make actions by either fellow Board members or Romero appear sinister.

Amplification is appropriate on the issue of whether or not an attorney was consulted. The ACLU could probably have been clearer about this but to clear this up, Anthony Romero did make the initial decision and he has stated that on more than one occasion. He did indeed tell The Nation that on the CFC matter he consulted himself (he is quoted as saying that he was serving as his own lawyer). But less than one month later Romero also consulted legal experts outside the ACLU and they agreed with his initial determination that this agreement did not require anyone at the ACLU to check government lists. That law firm provided a written opinion that was then provided to the Board when this issue was discussed.

The Ford Foundation
The Nation article states that Anthony Romero had privately advised Ford on how to craft a controversial clause in its grant agreement. While it is true that Anthony Romero advised Ford on the grant language, this is being totally distorted by critics of the ACLU. He advised Ford to change objectionable language, not craft it. To be clear, Anthony Romero and ACLU staff have been vocal critics of and have litigated against the Patriot Act and other regulations affecting nonprofits’ activities. But as long as the laws are still in place, the ACLU and private donors are bound by them, and we have encouraged donors (including Ford) to comply with the letter of the law by “parroting” its language in their grant agreements, while not exceeding the law’s requirements. This is not an endorsement of these laws. In fact, the ACLU has fought tooth and nail in the courts and Congress to change the problematic sections of the Patriot Act – with some notable successes. See www.reformthepatriotact.org for more information.

Although the ACLU initially entered into a grant agreement with the Ford Foundation that included a certification that the ACLU (and all other grantees) “will not promote or engage in violence, terrorism, bigotry or the destruction of any State,” Executive Director Romero did so in the belief that the certification, while objectionable, would not in fact compromise the ACLU’s program. That judgment was discussed by the ACLU Board at great length. While agreeing with the staff that the ACLU does not “promote or engage in violence, terrorism, bigotry or the destruction of any State,” it was ultimately the decision of the Board that accepting such restrictions might have a chilling effect on free speech and advocacy by other organizations and that the ACLU should therefore take a public position against them. The Ford Foundation was notified that the ACLU could not accept the certification language and ultimately forfeited more than $2 million in grants. See news release at http://www.aclu.org/safefree/general/18647prs20041017.html.

Many principled organizations have accepted Ford Foundation grants, despite the problematic grant language. Nevertheless, we would all agree that the ACLU must hold itself to a higher standard. In addition, the ACLU continues to urge Ford to change its grant language, thus far without success.

The consent decree with the NY Attorney General’s office
The critics also assert – incorrectly – that Anthony Romero “offered vague and inconsistent explanations” when the matter of a consent decree was discussed with the ACLU board. This is not consistent with what happened at the Board meeting or following in relation to this matter. In fact, this matter has been discussed at great length and reams of documents have been provided to the Board by Anthony Romero himself, unsolicited by any Board member. Further, he has said that he believed at the time that this was not a matter that he needed to bring to the Board’s attention.

In 2002, the New York State Attorney General’s office began an inquiry into the ACLU’s online privacy protections, after personal information about consumers from the ACLU’s online store was briefly and inadvertently made public on a URL – a mistake made by the ACLU’s outside website vendor. Following the investigation, the ACLU paid a $10,000 fine (which was fully reimbursed by the vendor) and entered into a written agreement with the Attorney General’s office, which was called an Assurance of Discontinuance (AOD).

The AOD contained a provision that read, “The ACLU shall deliver a copy of this Assurance to all current and future principals, officers, directors, and managers and to all current and future employees, agents, representatives, and contractors having any responsibility with respect to the subject matter of this Assurance.” An honest error was made in interpreting that provision to mean that it required delivery only to Board members “having any responsibility with respect to the subject matter.” Consequently, the AOD was not distributed to the ACLU’s full 83-person National Board within the 30-day time period specified in the AOD.

There was never any deliberate effort to withhold information from the Board. In fact, the Attorney General’s office was informed that the ACLU had misread the AOD. The Attorney General’s office took no action about the delay in informing the Board because it was satisfied that the ACLU was complying with the AOD. After the distribution requirement was brought to Executive Director Romero’s attention and confirmed by outside legal counsel, copies of the AOD were distributed to the full Board at its next meeting.

Rights and Responsibilities
The issues being raised in the Nation article by critics have been vigorously debated among ACLU Board and staff members. In some instances, a small number of Board members had taken their complaints directly to the press, without engaging their fellow Board members or utilizing ACLU governance processes, which some felt undermined the Board’s deliberative processes. To address these and other governance issues, President Strossen appointed (and a majority of the national Board concurred in the creation of) a Board committee to explore Board members’ rights and responsibilities, and to consider recommendations for improving our deliberative processes.

To be clear, there is nothing exceptional about the ACLU Board – or any nonprofit board – thoughtfully considering its governance roles and responsibilities, and the way that those persons with access to personnel, donor, attorney-client privileged and other confidential information communicate with the media. But this is a particularly thorny issue for the ACLU, given the organization’s deep-seated and continuing commitment to the free speech rights of all persons.

The Board committee first brought its proposals to the full National Board at its June 2006 meeting. Those recommendations met with significant opposition, and were generally viewed as not sufficiently protective of free speech rights of Board members. Opposition to and subsequent revision of Board committee reports is common, and the Board often sends its committees back to the “drawing board” after a general discussion.

President Strossen and Executive Director Romero were NOT a part of the Committee that produced the first draft. Following the June debate, President Strossen announced that she had been notified by the committee that had drafted the proposed guidelines, that the committee had withdrawn two sections that engendered strong criticism during the spirited debate. A transcript of the Board’s June 17 discussion of the committee report shows a clear rejection of the controversial portions of the committee’s proposal by Board members and by Executive Director Romero.

Based on the comments by critics, the article reports that “the critics are convinced that from the start Romero fully approved of the proposed gag rule.” The critics may believe that, but it is simply not true. First, the proposed policies on “rights and responsibilities” of Board members was drafted by an 11-member committee of the Board and not by Romero or other ACLU staff. Second, they were always understood to be guidelines, not “rules” – there were no penalties involved. Nor did Romero have any input or influence in the process. When the Board discussed the proposed policies for the very first time, Romero stated his objections to the controversial provision (a fact that The New York Times failed to report even though its reporter attended and wrote about that meeting.)

In short, the ACLU has always stood for free speech and vigorous debate, and always will.

 

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