THE BLOG
07/11/2006 10:01 pm ET | Updated May 25, 2011

How the ACLU Lost its Bearings

For the past 3 years, the ACLU board has been mired in controversy over the mistakes or malfeasance of its current leadership; some highly questionable conduct by the ACLU has been exposed in the press, notably the New York Times. Recently the organization embarrassed itself with a policy proposal that would limit the speech rights of board members, as the Times reported in May, 2006. I retired from the Board last month, deeply concerned about the transformation of the ACLU from a watchdog organization into an organization at war with its own internal critics and wary of a watchdog press. A slightly edited version of this op-ed appeared in the Los Angeles Times on July 2, 2006.

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. Flynn was kicked off the ACLU board for exercising 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 board again considered censoring its members, weighing new rules that would prohibit them from publicly criticizing the ACLU. 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 press. According to ACLU leaders, some board members were abusing their right to speak.

They were referring to me and my former colleague on the ACLU board, Michael Meyers, so I don't approach this subject as an observer. Meyers and I were 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 internal critics in line.

The committee's proposal, issued in May, was a stunning repudiation of the ACLU's core principles. It not only prohibited board members from criticizing the ACLU board or staff publicly but also disparaged whistle-blowing -- conduct the ACLU often applauds when it occurs in other institutions: Individual board members were admonished not to publicize disagreements with the board, particularly if the publicity would "call into question the integrity of the process in arriving at the board's decision." In other words, when individual directors had reason to believe that the Board has acted unethically, they were said to have a fiduciary duty to conceal their concerns, not disclose them.

These provisions have been formally withdrawn after being exposed in the New York Times (and ridiculed by editorialists around the country:) ACLU members and supporters reacted to news of the proposal 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.

But 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 when it was reported by the New York Times.

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. (Strossen supported Romero's action, which was initially approved by the board but subsequently narrowly rejected.)

More recently, Romero was caught trying to impose a very broad confidentiality agreement 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. Strossen defended these proposals, bizarrely noting her "presumption" that they "facilitate the ACLU's commitment to both privacy and free speech."

In response to these and other revelations, the ACLU leadership took aim at the messengers, accusing its critics of indulging in some unexplained vendetta. 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. They echo apologists for the Bush administration who equate 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 leaks 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, it has not been outspoken in defending the press 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 newspapers 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.

UPDATE:

I sort of welcome Arnie Miller's response to my post because it demonstrates the way in which the ACLU leadership and its messengers use personal insults to deflect attention from substantive criticisms and embarrassing facts. Indeed, Arnie has no first-hand knowledge of the facts; he is not a board member, and I doubt he has listened to tapes of meetings, or read minutes, voluminous emails and legal papers that document all my claims. He knows what he has been told, and what he imagines.

Arnie repeats the false claim that Anthony Romero was advised by lawyers that he could sign the Combined Federal Campaign agreement prohibiting ACLU from hiring anyone named on various watch lists but somehow not be bound to check any of the lists: even Romero has acknowledged, on tape, that he did not seek advice from counsel before signing the CFC agreement. And, the lawyers he eventually and belatedly consulted did not advise him that he could sign an agreement with the Bush Administration promising not to hire anyone named on specified lists and incur no obligation to check the lists.

Arnie makes the false claim that in response to a lawsuit by the ACLU, the CFC dropped its blacklisting requirement. In fact, the CFC application still requires organizations to pledge compliance with federal blacklisting laws. (See my earlier piece on the Huffington post, "Are Civil Liberties for Sale at the ACLU?")

Arnie claims falsely claims that by engaging in data-mining targeting members and donors, Romero is doing no more than his predecessor, Ira Glasser, who retired from the ACLU 5 years ago. Research on donors conducted during Glasser's tenure was quite primitive compared to research conducted today, as a factual investigation would show.

Obviously, it is quite difficult, perhaps impossible, for readers to resolve these conflicting claims without access to the underlying facts. I and one or two other board members repeatedly requested independent factual inquiries but were repeatedly rebuffed. I suspect that Romero, Strossen and other ACLU leaders know that they could not survive a full and independent review of the facts.

Finally, Arnie falsely claims that I opposed Romero from the beginning. Two board members initially opposed Romero's selection, and I was not one of them, as the record shows. Arnie reads my mind and says I decided not to run for another term on the ACLU board because I could not be re-elected. In fact, whether or not I would have won re-election, I retired from the board because I no longer wanted to serve on it. But, in any case, Arnie's assertion that I would have been purged and the fact that my former colleague Michael Meyers was indeed purged simply help make my point that the ACLU is increasingly intolerant of internal dissent. Of course, I don't compare myself to Elizabeth Gurley Flynn: I am neither an activist, radical leader nor member of the Communist party. (Is anyone a member of the CP anymore?) But I do compare the ACLU board that removed Flynn in 1940 for her political beliefs with the ACLU board today that repeatedly violates its own core principles.

UPDATE II:

There are two kinds of lies that are very difficult to refute, one of my ACLU colleagues has said. There's the big lie, like "Iraq attacked us on September 11th," which takes your breath away; and there are the little lies that, viewed individually, seem inconsequential and easily justified as mistakes. Attack the little lies and you're accused of "nitpicking;" but a mountain of little lies can bury important truths.

Consider Nadine Strossen's account of the aborted move to punish me and my former colleague on the ACLU board, Michael Meyers, for publicly criticizing the ACLU -- an effort initiated by Nadine herself. By itself, this sorry episode is probably not worthy of so much ink. But it was not an odd, isolated incident. It is merely one example of the ACLU's new intolerance for criticism and internal dissent. And Nadine's effort to rewrite the history of it reflects the systematic dishonesty that has begun to prevail at the ACLU. This is not some trivial, internal governance problem. The ACLU's credibility and effectiveness rest on its integrity.

What's wrong with Nadine's account? She falsely implies that I publicly disclosed confidential information about the ACLU; in fact, I was threatened with impeachment or suspension simply for publicly criticizing the ACLU. (I criticized the ACLU's reported donor research programs.) Nadine falsely implies that she merely circulated a letter complaining of my conduct, when, in fact, in response to that letter, she scheduled an ACLU Executive Committee discussion on the possible removal or suspension of Meyers and me for talking to the press. (That was an extraordinary exercise of her discretion.) She falsely states that the national board rejected a proposal to punish us; in fact, that proposal was never formally presented to the board, because Nadine and the Executive Committee disavowed any interest in it after a reporter inquired about it. Nadine falsely states that only one or two ACLU leaders around the country supported my ouster. In fact, Nadine received and circulated an email from a national board member expressing support for disciplinary action against me and Meyers and stating that the move was supported by a majority of board members. Then, speaking of lies, shortly after distributing that email, Nadine told the New York Times that no one on the national board supported disciplining us.

The proposal to impeach or suspend us was not formally considered, but a committee on the fiduciary rights and responsibilities of board members was established. In May 2006, that committee produced the controversial proposal that would have barred ACLU board members from criticizing the ACLU - a proposal recently withdrawn after being exposed in the press.