ACLU v. ACLU
(The Nation, February 5, 2007)
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Last September a group of civil libertarians launched a website, savetheaclu.org, on which they declared: "We come together now, reluctantly but resolutely, not to injure the ACLU but to restore its integrity." Only a "change in leadership," they insisted, "will preserve the ACLU." That website, and those words, marked a new phase in a lengthy campaign to unseat Anthony Romero, the ACLU's executive director. The website contained a surprise: a pithy and combative declaration from Romero's retired predecessor, Ira Glasser, who recruited Romero for the top job six years earlier.
Tension at the upper echelons of the ACLU has been evident for some time. On April 22 of last year, the ACLU national board converged on the Princeton Club in Manhattan for its quarterly meeting. A few weeks earlier, in an interview with the conservative New York Sun, board member Wendy Kaminer had criticized a statement by the ACLU's Washington legislative director. What Kaminer did was hardly unusual: For more than two years she has been an indefatigable critic of the ACLU leadership.
The principal target of her criticism--Anthony Romero--had apparently reached his breaking point. Halfway through the meeting he denounced Kaminer for "attacking his staff" in the Sun. While he was speaking, one board member, Alison Steiner, made a facial expression Romero didn't appreciate. Kaminer recalls, "Anthony strides down from the podium, he points at Alison, and essentially orders her out of the room." Romero berated Steiner in the hallway, leaving her shaken. Later in the meeting, South Carolina representative David Kennison belatedly rose to defend Kaminer, after which Romero asked Kennison, too, to step outside. Kennison later claimed that Romero told him that he would "never" apologize to Kaminer, and that he was accumulating a "thick file on her." "I got frustrated and lost my temper," Romero subsequently told the New York Times. "I do not have a file on Wendy."
In late October a second website, voicesfortheaclu.org, was launched by supporters of Romero. That site was spearheaded by some prominent ACLU veterans, including Aryeh Neier, Gara LaMarche and Norman Dorsen, who declared themselves "dismayed by the ongoing attacks on the ACLU and its leadership" and the "disproportionate and distorted coverage...in some quarters of the press." Since 2004, Stephanie Strom, who covers philanthropy and nonprofits for the New York Times, has written a dozen stories about internal controversies at the ACLU, stories that have infuriated Romero and many of his colleagues at the organization.
It's a bad time for civil liberties, a time of "extraordinary rendition," secret deportations, dubious military trials, NSA surveillance, the harassment of librarians and other infringements. The ACLU, founded in 1920, is both a crucial barrier against these threats to our freedom and the best-known defender of the Constitution. But lately it has also become an organization engulfed by a tumultuous family feud, one in which emotions are raw on all sides. Oddly, it's not a dispute about the ACLU's overall performance in the five years since Romero took over. To varying degrees, both sides agree that the ACLU's day-to-day work has been superb under Romero. On savetheaclu.org, Kaminer and Glasser wrote that the "ACLU continues to do a great deal of excellent, important work." Romero's supporters argue the point with greater emphasis and feeling. "The ACLU has never performed better," says Burt Neuborne, a former ACLU legal director who is now a law professor at New York University. "If you drew up a blueprint for a machine to protect civil liberties, you'd literally copy the existing ACLU."
So what is the row about? The critics proclaim that Romero has made grave mistakes; that those mistakes amount to a firing offense; and that he has betrayed "fundamental ACLU values." Romero's supporters say that he is a visionary leader and that his critics are only damaging the ACLU. Glasser's intervention, and his decision to employ the full range of his polemical, linguistic and strategic abilities in the fight against Romero, has only ratcheted up the tension.
"Ira was an inspirational leader of this organization," says Howard Simon, who runs the ACLU's Florida affiliate. "I still have in my files Ira's old speeches, which I take out to get my juices going again. What makes this such a bad Greek tragedy is that he left the organization with a wonderful reputation and legacy. He has squandered that legacy." Glasser has a different view: "I join this effort with sadness, but in the firm belief that the core mission of the ACLU is at stake."
Anthony Romero, 41, grew up in a crime-ridden housing project in the Bronx and received scholarships to attend Princeton and Stanford Law School. He eventually became a senior executive at the Ford Foundation, where he signed off on more than $100 million in grants annually, including a number of large grants to the ACLU. Romero was hired by the ACLU after a competitive search in 2001, and the press release announcing his appointment highlighted the fact that he was Puerto Rican and openly gay. He started a week before 9/11.
When I had lunch with Romero in early November, he was somber. "I've made some mistakes," he told me, "but those mistakes are minor compared with my achievements." We met again a few weeks later at a location of his choosing: the Warwick Hotel in Manhattan, where his father worked for thirty-nine years, first as a janitor and then as a banquet waiter. Romero was in a better mood: He had just returned from Virginia, where the ACLU was representing Khaled el-Masri, who maintains that he was arrested in 2003 and flown to a secret CIA prison in Afghanistan; the ACLU had argued for the reinstatement of his lawsuit against the CIA.
Sipping a glass of red wine, Romero insisted that the current battle will not distract him from his objectives: "I'm focused on what I want to get accomplished. And that focus has nothing to do with the opinions of a couple of hundred critics and their leaders." (More than 600 people have signed a petition against Romero at savetheaclu.org .) Maintaining his focus hasn't been easy; he has had to navigate a perilous minefield in his own backyard. Four times a year Romero appears before the ACLU's eighty-three-member national board, which is famously disputatious. Says Aryeh Neier, the ACLU's executive director from 1970 to 1978, a co-founder of Human Rights Watch and now the president of the Open Society Institute, "I've never seen anything remotely as contentious."
Romero's difficulties can be traced back to 2002, when he signed a consent decree with the New York Attorney General at the time, Eliot Spitzer, to settle a privacy breach that had been discovered on the ACLU website. A company called Virtual Sprockets was responsible for the breach, but Spitzer's office demanded a $10,000 fine from the ACLU. The terms of the decree required Romero to distribute it to the national ACLU board within thirty days, but he waited six months to do so. Glasser and Kaminer have written that Romero "offered vague and inconsistent explanations of the circumstances surrounding the negotiation, execution, and eventual distribution of the agreement." They further allege that ACLU president Nadine Strossen and the eleven-member executive committee, the leadership body of the board that oversees the executive director, "declined to reprimand Romero, even though a number of them privately conceded that they believed he had been less than honest with them." At the Warwick Hotel Romero told me, "I probably was a bit cavalier about it. But $10,000 is not a huge sum of money, and it was fully reimbursed [by Virtual Sprockets] to the ACLU. Had it been a million-dollar fine coming from our bottom line, I would have paid a lot more attention to it."
Then, in April 2004, Romero quietly put his signature on a Ford Foundation grant letter that contained a dubious clause: "By countersigning this grant letter, you agree that your organization will not promote or engage in violence, terrorism, bigotry or the destruction of any state." Dissident board members Kaminer and Michael Meyers viewed that language as disgraceful, and believe that Romero and the ACLU should have vigorously opposed it [see Sherman, "Target Ford," June 5, 2006]. Upon questioning Romero, the critics learned that he had done more than sign the grant letter: He had privately advised Ford on how to craft it. After vigorous debate, the ACLU ultimately refused more than $1 million in Ford money, which Romero wanted for the organization. "The mistake I made," Romero told me, "was in not appreciating the civil liberties implications" of Ford's grant language; he also says that he should not have signed the Ford document without first consulting his board.
In July 2004, after the board concluded a four-hour debate on the Ford controversy, Romero, in the face of explicit questions from Kaminer and Meyers, revealed that he had previously signed another questionable agreement, this one from the Combined Federal Campaign, a government program that allows federal employees to allocate funds to charities and nonprofits. After 9/11, the CFC demanded that its recipients certify that they do not "knowingly employ" people found on federal and international antiterrorism "watch lists"--critics call them "blacklists"--which have been shown to be sweeping and inaccurate. The critics, appalled by the CFC's screening requirements, demanded to know whom Romero had consulted before signing the CFC contract. He replied that he had acted on the "advice of counsel." The critics insist, then and now, that there was no counsel, and that Romero misled the board. The ACLU temporarily withdrew from the CFC, a move that cost the organization an estimated $500,000 in 2004.
Even Romero's most ardent supporters believe that he seriously botched the CFC matter. Today he admits that he should have immediately brought the grant application to the executive committee of the board (it took him more than five months to do so); and he blames the government for its excessive regulation of CFC recipients. When I asked Romero for the name of his "counsel," a sheepish grin appeared on his face. "I'm also a licensed attorney in New York," he confesses. "I was serving as my own lawyer."
Recalling the controversies of 2004, Romero conveys the impression that his worst blunders were not ethical or administrative, but tactical. He regrets that he was not able to vanquish his enemies on the board. "The biggest mistake I made," he says, "was not appreciating how [the various controversies] could be spun and framed to my detriment." He laments that his detractors were able to successfully "attach certain labels and criticisms that would be hard to explain away."
In the wake of these controversies--which Romero's supporters insist were blown wildly out of proportion by the critics and the Times--the ACLU board could have elected to fire Romero. He kept his job, in large part because many of his colleagues viewed him as young, inexperienced and overwhelmed by the complexities of running the ACLU after 9/11. Burt Neuborne believes that Romero needed a powerful mentor inside the organization, one akin to Norman Dorsen, who was the ACLU's president from 1976 to 1991. According to Neuborne, the current feud "wouldn't have happened if Norman were the president." He elaborates: "He would have seen it coming. He would have told Anthony what to do. He would have guided him. Anthony was essentially on his own. When Norman's hand went off the tiller at ACLU, it lurched a bit." (These days the hand of Norman Dorsen, who is also on the NYU law faculty, is again evident at the ACLU, in an advisory capacity.)
Many current board members vociferously insist that Romero's mistakes must be viewed in the larger context of his accomplishments, which are indeed impressive: He doubled the size of the full-time staff in the ACLU's national office, from 186 to nearly 400; he raised staff salaries; he lifted the ACLU's membership from 300,000 to 550,000; he nearly doubled both the total revenue of the ACLU and the net assets of the ACLU Foundation; he brought in new support from foundations; and he launched a TV series.
Supporters also point to a long list of ACLU achievements: its defense of aliens deported from the United States after 9/11; its legal challenge to the NSA spying program; its innovative use of the Freedom of Information Act, which led to the release of more than 100,000 pages of government documents relating to torture and abuse in Iraq, Afghanistan and Guantánamo Bay; and its various challenges to the Patriot Act, especially Section 505, which gives the FBI power to obtain sensitive records without judicial approval.
Top legal experts echo Romero's supporters. "I would give the ACLU a grade of A since 9/11," says University of Chicago law professor Geoffrey Stone. David Cole of Georgetown University Law Center (and The Nation's legal affairs correspondent), who supports Romero, agrees. "They've done a superb job in defending civil liberties, doing public education on civil liberties and challenging a variety of Bush Administration measures," says Cole. "They have also galvanized a large segment of the American population in defense of civil liberties."
The battles of 2004, combined with the aggressive coverage in the Times, created deep divisions within the ACLU board. Longtime board member Vivian Berger, emeritus professor of law at Columbia, says that many of her board colleagues felt obligated to rally around Romero: "The critics were so vicious toward him, trying to make a big deal out of every little thing," says Berger. "And here's Anthony, trying to fight off the forces of evil in the country and the world. We had to protect him, to some extent, just because we were afraid he would go under, which does not mean we never criticized him; which does not mean that many of us did not speak to him privately, myself included. The extreme nastiness of the dissidents had the countereffect of naturally making people circle the wagons."
When Berger talks about the "dissidents," she is primarily referring to Wendy Kaminer and Michael Meyers, who launched the initial onslaught against Romero. Until he left recently, Meyers had served on the ACLU board for twenty-four years. He is a controversial and contentious figure. He grew up poor in the South Bronx and Harlem, where his older brother was killed in a mugging, and has worked as a staff member of the NAACP and as a columnist for the New York Post. To his supporters--including the writer Nat Hentoff, who demanded Romero's resignation in the Village Voice and USA Today--Meyers is a man "of unbending integrity and independence." To his detractors, he is an exasperating presence. Aryeh Neier allows, "He is not someone who could ever last in any institution. He always wanted to call attention to himself. I would never consider hiring him. He would be impossible."
"We've lost the ACLU," Meyers lamented in October 2005, when I first began to follow the dispute. Regarding Romero, Meyers comes right to the point: "There have been serious violations of ACLU policy, protocols, philosophy, and I think the board made a serious mistake in hiring Anthony Romero." Why? "This guy can't think. He can't talk. He can't write. He's not an intellectual leader, and therefore he's an embarrassment." (Meyers says that he preferred another candidate for executive director.) Meyers does credit Romero in one area: "This guy's raised a lot of money. I think we should have hired him as our fundraiser, as our director of development."
When Meyers began to publicly excoriate the ACLU leadership, those leaders moved quickly to confront him. Meyers says he got a call in July 2004 from Nadine Strossen, who told him, "We are asking people not to talk to the media." Meyers replied, "Well, you know, Nadine, you can't remind me of that because you know the policy is specific." (ACLU bylaws guarantee the right of board members to express their personal views.) Strossen: "I thought you'd say that." Meyers: "So why are you calling me?" In retrospect, the efforts by Strossen and others at the ACLU to restrain Meyers only served to galvanize and infuriate him, and contributed to the cycle of recrimination that ensued. In 2005 Meyers was voted off the board by colleagues who were furious at him, but he remains an energetic opponent of Romero, and his agile mind and sharp tongue were on display in recent polemics with Romero's supporters in the online Huffington Post.
Kaminer, a freelance journalist in Boston, was Meyers's comrade in the trenches: A fourteen-page chronology she wrote in late 2004 for the board of directors of the ACLU's Massachusetts affiliate, which she then represented, articulates the case against Romero with clarity and precision. Kaminer's crusade against the leadership, and her frequent quotations in Strom's Times stories, enraged many of her colleagues on the board. Vivian Berger refers to Kaminer's "intransigent righteousness, humorlessness, sort of Madame Defarge quality." In an August 2004 posting on the ACLU's internal listserv, Berger pointedly inquired, "What exactly do you want us to do now, Wendy? Do you want [us] to ask Anthony to resign?" Replied Kaminer, "I want the ACLU leadership always to tell the truth, the whole truth and nothing but the truth, to acknowledge frankly and fearlessly governance problems and policy misjudgments and address them effectively." Kaminer also demanded a "committee of inquiry" to investigate Romero's transgressions, which the board has never agreed to. Kaminer did not run for re-election in 2006, and no longer serves on the national board. Her rhetoric and behavior alienated quite a few members of the Massachusetts affiliate board, and Kaminer didn't have enough support to keep her seat. Still, she remains a formidable adversary of Romero, and her knowledge of the ACLU wars is encyclopedic.
By late 2005 the strife had, by and large, reached a standstill. And then two events occurred that significantly increased the level of acrimony and recrimination. The first came in the fall of that year, when the ACLU management unveiled new rules regarding employee confidentiality and technology use, rules that had to be signed by staff members at the national office. One clause read, "You agree that you will...not disclose ACLU Confidential Information to anyone outside the ACLU unless you have been explicitly authorized to do so by your Senior Staff Member or your Departmental Head." The new rules drew an anonymous (and outraged) letter from staff members, who complained that the agreement would "redefine 'confidentiality' in an overbroad and vague way, vesting in management the authority to define a wide variety of information as confidential." The letter also expressed the fear that employee e-mail would be monitored by management. "If we worked somewhere else we would be complaining to the ACLU," the letter declared.
Romero says the proposed rules were "a response to the fact that we had a consultant who walked away with an entire donor list and thought it was appropriate to send it to a newspaper reporter"--Strom of the Times. (Strom declined to discuss her reporting.) Romero explains that his staff had to understand that "what was on their computers and databases was not theirs but the ACLU's. There were certain lines that needed to be drawn." Would the proposed rules have entailed the monitoring of staff e-mails? "The idea that we would monitor our employees' e-mails is farfetched," Romero says. What's clear is that the proposed rules--which were ultimately shelved--provided ammunition to Romero's critics, who saw them as an attempt to crush internal dissent at the national office.
And then, last May, an eleven-member committee of the national board--whose members had been asked by the board to produce a report defining the "rights and responsibilities of Board members," with an emphasis on fiduciary responsibilities and confidentiality--presented their findings to their colleagues. One board member who saw an early draft of the report correctly predicted that it would provoke a "whole lot of screaming." Indeed, it's clear now that any attempt to circumscribe the free-speech rights of ACLU board members was destined to fail. The critics immediately assailed the report, focusing on passages like this one: "a [board member] may publicly disagree with an ACLU policy position, but may not criticize the ACLU Board or staff."
For the critics, that language amounted to both a "gag rule" and a legal framework for the impeachment of dissident board members. After the Times got hold of the story, and after an official in the New York State Attorney General's office informally warned the ACLU that the proposed rights and responsibilities language was unacceptable, Romero spoke out against it at the June 2006 board meeting. In the end, the rights and responsibilities report was also shelved. Six months later, Romero still seems bruised by the fisticuffs that erupted: "The board," he says, "was searching for solutions to what was a difficult situation. Previously held norms of board behavior and board decorum were not working any longer. There were [board] colleagues who preferred talking with the press rather than talking with their colleagues."
The critics are convinced that from the start Romero fully approved of the proposed "gag rule." Even some of Romero's most prominent supporters see some truth in that charge. Burt Neuborne says that he privately questioned Romero about it, and was told by him, "It was an effort to explain to people that when you are on a board, there is sometimes a duty not to leak information that can harm the organization's ability to perform its mission." Neuborne says he replied: "If you want to have a board orientation class, have a board orientation class, but don't have rules." He adds: "It was a misstep. It was a road that they never should have gone down." Would Romero have been content with the rights and responsibilities language if the board had approved it? "Anthony would have been perfectly comfortable with it, even if he didn't push it," Neuborne says.
Ira Glasser's emergence as a critic of Romero has inspired some civil libertarians to pay closer attention to the feuding at the ACLU. "I take his perspective very seriously," says historian Stanley Kutler. "He fought the good fight. If Ira Glasser says something publicly, I'm going to listen to it."
When Glasser became executive director in 1978, the ACLU was reeling from the crisis in Skokie, where it defended the right of Nazis to march though a largely Jewish suburb of Chicago. When he took over, the national ACLU had a cumulative deficit of nearly $500,000. When he retired, the organization possessed assets of more than $100 million. Almost everyone interviewed for this article praised Glasser's performance as executive director. But it wasn't all smooth sailing: In 1993 former Washington Post reporter Morton Mintz charged Glasser with soliciting and accepting $500,000 from Philip Morris between 1987 and 1992. He did so, Mintz alleged, without initially informing the board--an allegation Glasser denied.
In recent months, a significant portion of the goodwill Glasser accumulated during his tenure has evaporated. Writing in the Huffington Post, Gara LaMarche, vice president of the Open Society Institute, spoke for many Romero supporters when he declared, "I am sure [Glasser] has persuaded himself he is acting on high principle. I hope he still has a few good friends around to tell him what so many are saying: This is no way to end a distinguished career." Many ACLU board members believe that Glasser misses his old job, and that he is envious of Romero's success. "I think Ira left too soon," says Susan Herman. "He retired quite young. I think had he known that 9/11 was coming, he wouldn't have left." Glasser retorts that "remarks like Susan's...are uninformed, intellectually dishonest and should not be taken seriously except as a reflection of [her] refusal to confront what the critics are saying."
Glasser's emergence has rekindled ancient rivalries within the ACLU. Glasser and Neier, for instance, have both occupied the top jobs at the New York Civil Liberties Union and the national ACLU, and their relationship has been frosty for decades. In a recent interview at the Open Society Institute, Neier was full of scorn for the critics, and full of praise for Romero. Neier wore an elegant blue pinstriped suit, and sat with his leg swung over a chair. From that relaxed pose he hurled poisonous darts at Glasser: "Ira's greatest skill is his skill at manipulation," Neier said calmly. "But he has one flaw as a manipulator, and that is, a really good manipulator doesn't leave any traces of his manipulation. And Ira's ego is such that he falls short of being a master manipulator, because ultimately he wants you to know that he has manipulated." "I haven't the slightest interest in responding to this sort of juvenile name-calling," says Glasser. "It indicates only the intellectual vacuity of his position."
Many of Romero's leading defenders--including Ramona Ripston, longtime executive director of the ACLU's Southern California affiliate--regret that the dissidents did not keep their differences within the ACLU family. Indeed, Ripston believes that Glasser could have successfully run for the board in the early days of Romero's tenure and done much good as an internal dissenter. Glasser bristles at the suggestion that the critics have shown disloyalty in taking their fight to the press and to the public. "The critics," he says, "couldn't even maintain themselves on the [national] board, much less get new people on the board." In Glasser's view, the "board is basically a self-perpetuating body and always has been.... Insurgency is close to a political impossibility if the leadership is opposed." Vivian Berger takes a sledgehammer to that argument: "If Ira can't get to the New York electors, then I can't find my way to the subway. What I think the critics are quarreling with is democratic governance. They have not impressed enough people to get elected."
Now that the most vocal critics are off the board, the dissidents seem to be focusing their efforts on the ACLU's fifty-three state affiliates. Says Glasser, "I would like to see every affiliate have a full and fair discussion of the controversy on the merits, with the assumption that they don't know which side is right, because both sides contain bona fide ACLU loyalists." That road won't be easy for the dissidents. Historically, the large affiliates have exercised tremendous clout within the ACLU, and those affiliates--Northern and Southern California, Washington, Massachusetts, Florida--are solidly behind Romero in the current dispute. Only the small, troubled affiliate in South Carolina has signed the petition on savetheaclu.org calling for the removal of the current leadership.
Indeed, it's at the affiliate level that Romero may have decisively outmaneuvered his opponents. One of his primary goals has been to strengthen those affiliates. In 2001 the national office provided them with $6.5 million; in 2007 it will provide $31 million. Most of the affiliates seem extremely satisfied with the current arrangement. Voicesfortheaclu.org contains a letter of support for Romero signed by eighteen long-term affiliate directors, who affirmed, "Our organization has never been better organized, better professionally managed and better focused on its principles than at this moment in our 86-year history."
At the strategic level, perhaps the dissidents' greatest failure was their inability to bring the heavyweight Northern and Southern California affiliates into the rebel camp. Historically, those affiliates have been among the most radical, innovative and principled in the ACLU universe. But, then again, the leading dissenters are still endeavoring to persuade some of their own friends that their course of action is the proper one. Says one person close to Glasser, "Ira is absolutely right on the merits of his case, but wrong in the way he is going about it."
Beginning in 2004, the critics performed a useful service by confronting Romero and bringing his transgressions to light. Indeed, Romero should hasten to answer any remaining questions from past controversies. Some of his own supporters, for instance, would welcome a fuller account of the "rights and responsibilities" fiasco. But the dissidents had their day in court. The appropriate venue for opposing the executive director of the ACLU is the national board of the ACLU, to which the critics have previously (and exhaustively) directed their energies. However unacceptable it may be to Glasser & Co., the board has spoken--in favor of Romero. In an ideal world, Glasser would now be serving as the ACLU's roving ambassador-at-large--lecturing, debating, igniting the airwaves with his rhetorical virtuosity. It's probably too late for him to play that role; but it's not too late for him to repair his reputation by curtailing his efforts to undermine his handpicked successor.
Romero says he intends to persevere in the face of ongoing criticism. But his supporters believe it won't be easy. "Ira is the best streetfighter I've ever known," says Ramona Ripston. What happens next, according to Aryeh Neier, is largely up to Romero. "I don't believe that his opponents have the momentum to be able to engineer Anthony's overthrow," says Neier. "It's simply a question of how much he can put up with. And if he decides that he can put up with it, and that he intends to prevail, I think he will prevail."