Disorder at the ACLU


Sunlight is the best disinfectant. —Supreme Court Justice Louis Brandeis

On Saturday, July 31, I was stunned to see on the front page of The New York Times a story by its exemplary writer on legal issues Adam Liptak that must have had John Ashcroft chortling for days. The story began:

“The American Civil Liberties Union is in turmoil over a promise it made to the government that it would not knowingly hire people whose names appear on watch lists of suspected supporters of terrorism. Those lists are the very type it has strongly opposed in other contexts.” (Emphasis added.)

This promise to the government, betraying ACLU core principles, was not made by the staff of the ACLU, which, as I’ve often written, has persistently and effectively illuminated the Bush-Ashcroft raids on the Constitution—currently, for example, exposing the government’s national harassment of anti-Bush protesters.

As Liptak reported, it was the ACLU’s executive director, Anthony Romero, who, in January, signed on behalf of all the staff, affiliates, and members a certification that the ACLU “does not knowingly employ individuals or contribute funds to organizations found on [a terrorist-related list].” Included are lists from the Justice, State, and Treasury departments. One of the lists is mandated by John Ashcroft’s Patriot Act.

Romero signed that certification, which, as the Times noted, is required “of all groups that participate in the Combined Federal Campaign, an [annual] charity drive for federal employees and military personnel that raised $250 million for thousands of groups last year.” The ACLU receives about $500,000 in earmarked contributions from the campaign.

The dread “terrorist supporters’ ” names on the watch lists are posted on the campaign’s website, and while Romero admits that he printed the names out, he straight-facedly told the Times, “I’ve never consulted them.”

As part of the ACLU’s intense cover-up campaign after the Saturday Times story, Romero appeared the next day on National Public Radio’s Weekend Edition Sunday, where host Liane Hansen asked him what proved to be a crucial question: “So, in other words, when you signed it, you really . . . didn’t know what you were signing.”

“Well,” said Anthony Romero, who is a lawyer, “the language is ambiguous.”

But in the Times‘ story the day before, Mara Patermaster, who directs the charity program, said unambiguously that for an organization to not inspect the lists was no defense at all. “To just sign a certification without corroboration would be a false certification.” And is there no penalty for Romero under the false-filing statute?

On that Sunday National Public Radio program, Wendy Kaminer, a member of the ACLU national board and a civil libertarian of utter integrity whom I’ve known for years, shredded Romero’s slippery defense:

“Even if [the language] were ambiguous and even if this defense—that the government didn’t really expect you to comply with the certification that you signed—was a good defense, this is still something the ACLU never should have signed.

“It should never even have given nominal approval on paper,” Kaminer continued, “to the use of these blacklists, which we oppose generally, and we’re opposing them now in our no-fly cases—the use of these blacklists to stop people from getting on airplanes.”

What did Nadine Strossen, president of the ACLU and a longtime valiant defender of free speech and honest transparency in government, say about all this? In the Saturday Times, she said, to my surprise, that Romero’s signing of the certification was “a very reasonable, certainly clever interpretation. Do we do more harm than good . . . by certifying something that is plausible, but not the only plausible interpretation? [This] is completely a debate about strategy, not principle.”

What a clever way to redefine principle. “I think,” Strossen added, “Anthony handled it completely appropriately.”

On the very day the Times story broke, Nadine Strossen and Anthony Romero sent this e-mail to the ACLU board:

“As many of you already know, there is a story in today’s New York Times about the ACLU board’s deliberations over accepting funding with ‘anti-terrorism’ language. As a result of this story, those of you who were quoted (and possibly those who were not) may get calls from other media outlets seeking comment. We wanted to take this opportunity to remind you that all media calls should be referred to the ACLU press office. As with the New York Times story in which the staff directed the reporter to Stan Furman and Rob Remar, the ACLU staff will ensure that the diverse perspectives on the Board are appropriately considered. . . . Talking points will be available soon.” (Emphasis added.)

Having been recommended to a Times reporter by the ACLU press office, Robert Remar, a national board member, told the Times that he supported Romero’s action.

A gag rule at the ACLU, protector of the First Amendment! Talking points for board members!

Remar did make a useful point to the Times: “We either ought to litigate the legality of that or give the money back.” The board approved his motion to discuss all this further in October. That was before the Times story created a national public discussion.

Next week: the very clever self-exculpatory spin by Romero, starting the day after the Times story broke, when he righteously told the Times the ACLU would reject the $500,000 and was contemplating challenging the blacklist requirement in court. The spin climaxed in an August 12 ACLU press release in which Romero announced he had “created a coalition of more than a dozen nonprofits opposing the policies of the Combined Federal Campaign.”

The August 12 press release entirely omitted Romero’s having signed that certification in January without telling the ACLU board staff and affiliates, or any of the nonprofits he has now organized.