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Wendy Kaminer Headshot

Is Civil Liberty for Sale at the ACLU?

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Most Americans probably don't know that every time they buy a pretzel on the street, tip a waiter, or hire anyone to contract for any personal or professional service, they might be in danger of violating federal blacklisting law. By statute and an Executive Order issued shortly after 9/11, all U.S. persons (including all individuals, businesses, and charities,) are prohibited from engaging in economic transactions with anyone named on extensive terrorist watch lists. According to the Washington Post, the Administration maintains a master list of 325,000 names. Criteria for inclusion on the list are unclear, as are the options for getting off the list if your name appears on it by mistake, as many names do.

I don't want to sound a false alarm. It's hard to imagine even the Bush Administration trying to apply this law to innocent, incidental transactions, (should we ever come under the omnipresent surveillance that would expose them.) But businesses and charities might be and perhaps are advised to take seriously the prohibition on hiring, funding, or doing business with any person or entity named on the lists. The Ford Foundation has unapologetically acknowledged checking its grantees against the blacklists daily. In August 2004, expressing no concern for the inaccuracies of extensive post 9/11 blacklists, a Ford spokesman explained to the Washington Post that list checking was not simply required by law; in addition, "it's just the right thing to do."

Who knows how many other foundations, charities, and businesses engage in similar screening, or how many innocent people are harmed by it? Blacklisting can be a quiet practice, which is partly why it's so insidious. The Bush Administration is not solely to blame if blacklists violate the rights of the innocent. Government blacklisting relies partly on the complicity of the private sector; it depends on the willingness of large and powerful private entities to cooperate in blacklisting, or, at least, to refrain from challenging it.

Complicity in post 9/11 blacklisting is widespread; it even extends to the nation's most prominent civil liberties group, the ACLU. Recently, in early January '06, the ACLU's Board of Directors (of which I am a dissident member,) authorized Executive Director Anthony Romero to sign an entirely voluntary contract with the Bush Administration pledging to comply with federal blacklisting laws. Why? The ACLU is taking this pledge for money - an expected $500,000 per year. A promise to comply with blacklisting laws is required as a condition of participation in the Combined Federal Campaign (CFC), a giving vehicle for federal employees and a soliciting vehicle for qualifying charities. (Every year, federal workers are provided with a list of charities to which they can choose to contribute through the CFC.)

Sad to say, the ACLU's decision to approve the CFC blacklist requirement is not unprecedented. Two years ago, in January 2004, without informing the ACLU Board, Executive Director Romero signed an agreement with the CFC certifying that the ACLU "does not knowingly employ individuals or contribute funds to organizations" named on specified "terrorist related lists." Romero also promised to notify the Administration of any "change in circumstances," regarding the ACLU's compliance with this promise.

Some six months later, Romero's agreement with the Administration was exposed in the New York Times, shortly after the ACLU Board had learned about it. Romero defended the agreement, stating that he had not checked the blacklists (although he had printed them out) and asserting that he did not believe that by certifying the ACLU's compliance with blacklisting he was actually obliging the organization to check any blacklists. ACLU President Nadine Strossen lauded Romero and characterized his interpretation of the CFC agreement as "clever." Still, on the same day that the Times story appeared, the ACLU withdrew from the CFC. Like Claude Rains in Casablanca, Romero expressed Shock! Shock! that the Administration actually expected him to check the blacklists after he entered into an agreement promising that he did not and would not employ anyone named on the lists.

The ACLU then organized a coalition of not for profit groups and sued the CFC for requiring that participating charities engage in blacklisting - or so it seemed from the ACLU's November 2004 press release. In fact, the lawsuit did not challenge the constitutionality of the blacklist requirement, which exists independently of the CFC, under federal law. To resolve the ACLU's legal challenge, the Administration deleted from the CFC application an explicitly stated prohibition on hiring or funding anyone named on the blacklists. But the Administration retained in the application a requirement that charities pledge compliance with federal blacklisting laws, which, in turn, explicitly prohibit them from hiring or funding anyone named on the blacklists; and charities are still explicitly encouraged, although not formally required, by the CFC, to check the lists. List checking is, after all, simply a means to the end of blacklisting.


The new, 2006 CFC application requires charities to pledge their compliance with "all statutes, Executive orders, and regulations restricting or prohibiting U.S. persons from engaging in transactions and dealings with countries, entities, or individuals subject to economic sanctions administered by the U.S. Department of the Treasury's Office of Foreign Assets Control." It requires charities to acknowledge their awareness of existing lists, naming individuals (and countries) subject to such sanctions; and charities must promise to notify the Administration immediately of "any change in circumstances" regarding this pledge of compliance.

How do ACLU leaders justify agreeing to these conditions? Romero and his many supporters on the Board argue that the ACLU should have no compunction about certifying its compliance with the blacklist laws because it is bound by federal laws whether or not it agrees to obey them. That's true, but by making an affirmative, wholly voluntary promise to obey a law that you do not intend to obey you may subject yourself to additional liability for intentionally misleading the government. As Martha Stewart might attest, it is a crime to lie to the federal government.

So we should assume that Romero intends to avoid hiring anyone subject to economic sanctions and named on specified lists by the U.S. government, regardless of whether the sanctions are imposed rightly or wrongly, on the basis of hard evidence, speculation, or bias. Romero has assured the ACLU Board and apparently informed the government that the ACLU will not actually check any blacklists and opposes their maintenance; still, the organization is bound by its promise not to hire people targeted by the lists.

Are you confused yet? The legal complexities of this story make the truth of it easily obscured. ACLU Board members and supporters who are not inclined to sort out the facts for themselves -- by reading read legal papers, agency rules, or minutes of ACLU proceedings, among other documents -- naturally rely on what they're told by ACLU leaders and what they read in ACLU press releases. So Romero successfully spun the change in the CFC application as a "major victory," even though it did not relieve charities of the obligation to cooperate in blacklisting. In his November 2005 press release trumpeting this questionable "victory," Romero claimed misleadingly that charities participating in the CFC would no longer be expected to "become law enforcement officers for the federal government."

You'd never know from reading this statement that charities participating in the CFC would indeed be expected and would agree not to hire or support any targets of blacklisting. This doesn't make participating charities, including the ACLU, law enforcement officers; but it does make them willing law enforcement collaborators, like paid informants. ACLU leaders express outrage at the suggestion that they are selling their principles, while they pledge to comply with blacklist laws they're supposed to oppose, for $500,000 a year. I doubt they would have taken the pledge for free.

Meanwhile, many relatively progressive advocacy groups, hungry for funds, are signing the new CFC blacklist requirement, just as many signed the old one. It's unrealistic to expect organizations that are not devoted to preserving civil liberties or lack expertise in civil liberties issues to take a strong stand against blacklist laws, especially when the ACLU voluntarily signals approval of them. The ACLU is the nation's premier civil liberties organization; these days it sometimes leads by bad example.

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