How the ACLU lost its bearings

IN 1940, THE American Civil Liberties Union expelled well-known radical leader Elizabeth Gurley Flynn from its board of directors for being a member of the Communist Party. Her expulsion embarrassed the organization and has long been considered a nadir for the ACLU. After all, Flynn was kicked out for exercising the very 1st Amendment rights that the ACLU had been created to defend. She was posthumously reinstated in 1976.

But apologizing for sins of the past doesn’t stop people from repeating them in the present. Recently, the ACLU again considered censoring its board members, weighing new rules that would prohibit them from criticizing the organization publicly. This startling proposal was the culmination of a bitter internal battle over the organization’s integrity and fidelity to principle that has spilled out into the media.

Why would such a rule even be considered by a free-speech organization? According to ACLU leaders, some board members had been abusing their right to speak.

They were referring about me and my former colleague on the ACLU board, Michael Meyers, so I don’t approach this subject as an observer. Meyers and I had been threatened last year with removal or suspension after we publicly criticized the ACLU’s reported use of data-mining practices to gather information on members and donors. The effort to punish us was aborted only after a New York Times reporter inquired into it; the board then established a committee on the fiduciary rights and responsibilities of its members in an apparent effort to pass rules that would keep us in line.

The committee’s proposal, issued in May, was a stunning repudiation of the ACLU’s core principles. It included provisions that prohibited board members from criticizing the ACLU board or staff publicly and that disparaged whistle-blowing (conduct the ACLU often applauds when it occurs in other institutions). Individual board members were admonished not to “call into question the integrity of the process in arriving at the board’s decision.”

The proposal has been derailed, at least for now, by its exposure in the media: ACLU members and supporters reacted to news of it with dismay; the New York attorney general’s office reportedly expressed concerns about limitations on public policy discussions; and the organization’s leaders quickly distanced themselves from this effort to squelch dissent.

Unfortunately, this embarrassing episode is part of a pattern. In the last two years, under the leadership of Executive Director Anthony Romero and President Nadine Strossen, the ACLU has repeatedly been caught practicing the opposite of what it preaches.

In July 2004, the board learned that Romero had quietly agreed to screen the organization’s employees against terrorist “watch lists” -- the same lists the ACLU has condemned -- in order to qualify as an officially approved charity for federal employees. Strossen characterized Romero’s action as “clever,” but it was quickly rescinded after public exposure.

This report was followed by Romero’s admission that early in his tenure at the ACLU, he had privately advised the Ford Foundation to “parrot” the Patriot Act in formulating controversial new restrictions on the speech of its grantees -- restrictions Romero then quietly accepted on the ACLU’s behalf as well. (After a protracted debate, the board narrowly disapproved the restrictive agreement.) More recently, Romero was caught trying to impose very broad confidentiality agreements and technology rules on ACLU employees, similar to workplace rules that the ACLU officially opposes. Like the proposal governing board members’ rights to speak, the agreements nearly imposed on the staff (but withdrawn after they became public) included a virtual gag rule; they also would have required the staff to acknowledge that all their communications on ACLU systems were subject to surveillance.

In response to these and other revelations, the ACLU leadership took aim at the messengers. (I’ve been called names on an ACLU listserv that I can’t repeat in this newspaper.) They also obscured the facts, spreading misinformation among board members and supporters. The damaging revelation that Romero had agreed to engage in post-9/11 blacklisting, for example, was “managed” partly by Romero’s misrepresentation of the advice he had been given by lawyers regarding the agreement he had signed. Everyone makes mistakes, of course; what turns mistakes into misconduct are efforts to cover them up.

This is how an organization loses its moral bearings: Its members are caught between loyalty to the institution and loyalty to the institution’s ideals. Supporters of the Romero/Strossen administration blame the ACLU’s internal critics for lending comfort to its enemies on the right at a moment when civil liberties are gravely imperiled. In making that argument, they mirror the Bush administration when it equates criticism of its policies with aid to terrorists at a moment when our security is gravely in doubt.

When the ACLU acts like the government, it undermines its credibility in criticizing the government. Having vilified their own internal critics as “leakers,” ACLU leaders risk incurring charges of hypocrisy if they now try to defend whistle-blowers and publication of leaked information about the Bush administration’s arguably illegal activities.

Of course the ACLU still battles governmental abuses. But although it has sued the administration for the warrantless spying program, the organization has not been outspoken in defending the media against charges of treason or against the threat of prosecution under the Espionage Act for exposing the spying and other controversial programs

The ACLU is not simply attacking dissent internally. It has become a less reliable defender of controversial public speech and freedom of the press. For instance, when the State Department condemned the publication of the controversial Muhammad cartoons last year, and publications in the U.S. declined to publish them, the ACLU was virtually silent. In fact, talking points issued by the press office addressing torture at Abu Ghraib while the cartoon controversy was raging advised against discussing the cartoons. Instead, they recommended ducking questions that arose about the cartoons by exhorting the U.S. government to “take the Abu Ghraib images seriously.” This was predictably defended as an effort to “stay on message.”

The ACLU also had little to say about the jailing of New York Times reporter Judith Miller during the investigation of the Valerie Plame leak. We “were not very out front on commenting” on the Miller case, talking points from the press office observe, attributing the ACLU’s silence to the presence of “many eloquent advocates in this case.”

Civil libertarians accustomed to viewing the ACLU as the leading “eloquent advocate” for a free press and free speech should be prepared for more moments of silence.