The American Civil Liberties Union (ACLU) characterizes itself as America’s “guardian of liberty,” working to “defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.” “We work,” says the ACLU, “also to extend rights to segments of our population that have traditionally been denied their rights, including Native Americans and other people of color; lesbians, gay men, bisexuals and transgendered people; women; mental-health patients; prisoners; people with disabilities; and the poor.”
The ACLU grew out of the National Civil Liberties Bureau (NCLB), which was established in 1917 to provide legal aid for conscientious objectors to World War I, and for those being prosecuted for espionage and sedition. In 1920 — a time when the United States feared infiltration by Bolsheviks and leftists who had been influenced by the recent Russian Revolution of 1917 — the NCLB dissolved and reorganized to form the present-day ACLU. That development was sparked chiefly by the so-called “Palmer Raids” of 1919 and 1920, where Attorney General Alexander Mitchell Palmer had authorized a series of federal raids on suspected radical leftists.
The ACLU’s principal founder was Roger Baldwin (1884-1981), who served as its executive director until 1950. Baldwin was a socialist who counseled subterfuge as the preferable means of promoting his political agendas in the United States. In a private 1917 letter to the journalist/activist Louis Lochner, who was affiliated with a radical organization, Baldwin wrote: “Do steer away from making it look like a Socialist enterprise. We want to look like patriots in everything we do. We want to get a lot of flags, talk a good deal about the Constitution and what our forefathers wanted to make of this country, and to show that we are really the folks that really stand for the spirit of our institutions.”
The ACLU’s original national committee included such notables as chairman Harry Ward (a Methodist Church minister and a Communist Party USA member); William Z. Foster (a Communist Party leader who ran for the U.S. presidency in 1924, 1928, and 1932); Felix Frankfurter (a legal professor and judge who embraced progressivism and Fabian socialism); Jane Addams (who sympathized strongly with socialists); Helen Keller (a member of the Socialist Party); Arthur Garfield Hayes (who served as New York State chairman of the second Progressive Party in 1924); Norman Thomas (Socialist Party of America leader and six-time U.S. presidential candidate); Scott Nearing (a member of the Socialist Party); Oswald Garrison Villard (a radical journalist who served as editor of The Nation); and Elizabeth Gurley Flynn (who joined the Communist Party in 1937).
In the ACLU’s early years, Baldwin hailed the Russia of Lenin and Stalin as “a great laboratory of social experimentation of incalculable value to the development of the world.”
In 1934 Baldwin wrote an article for Soviet Russia magazine, in which he spelled out his steadfast commitment to promoting socialism by any means necessary:
“I believe in non-violent methods of struggle as most effective in the long run for building up successful working class power. Where they cannot be followed or where they are not even permitted by the ruling class, obviously only violent tactics remain. I champion civil liberty as the best of the non-violent means of building the power on which worker’s rule must be based. If I aid the reactionaries to get free speech now and then, if I go outside the class struggle to fight against censorship, it is only because those liberties help to create a more hospitable atmosphere for working class liberties. The class struggle is the central conflict of the world; all others are incidental. When that power of the working class is once achieved, as it has been only in the Soviet Union, I am for maintaining it by any means whatever.”
“My ‘chief aversion’ is the system of greed, private profit, privilege, and violence which makes up the control of the world today, and which has brought it to the tragic crisis of unprecedented hunger and unemployment. I am opposed to the New Deal because it strives to strengthen and prolong production for private profit. At bottom I am for conserving the full powers of every person on earth by expanding them to their individual limits. Therefore, I am for socialism, disarmament, and ultimately for abolishing the state itself as an instrument of violence and compulsion. I seek social ownership of all property, the abolition of the propertied class, and sole control by those who produce wealth. Communist is the goal. It all sums up into one single purpose — the abolition of the system of dog-eat-dog under which we live, and the substitution of the most effective nonviolence possible of a system of cooperative ownership and use of all wealth.”
Reflective of the enduring nature of the ACLU’s radicalism is the fact that in 1990-91, decades after its founding, the organization named the unrepentant New Left terrorist Bernardine Dohrn, an Associate Professor of Law at Northwestern University, to its advisory board. Dohrn, a Marxist, had been a 1960s-era leader of Weatherman—described by her husband Bill Ayers as “an American Red Army.” In 2009 the ACLU’s Michigan chapter invited both Dohrn and Ayers to deliver a keynote address at one of its meetings.
Today the ACLU handles approximately 6,000 court cases each year and has offices in all 50 states as well as Puerto Rico and Washington, D.C. In addition to the nearly 300 staff attorneys it employs, the organization also makes use of thousands of volunteer attorneys who work pro bono. Further, the ACLU claims to have more than 1.5 million members, and more than 4 million “members, activists, and supporters.”
Anthony Romero has been the ACLU’s executive director since 2001.
David Cole has been its national legal director since July 2016.
The ACLU’s work today focuses on a multitude of issues, most notably these major initiatives:
Capital Punishment: “The death penalty in America is a broken process from start to finish. Death sentences are predicted not by the heinousness of the crime but by the poor quality of the defense lawyers, the race of the accused or the victim, and the county and state in which the crime occurred…. Time and time again, we have proven that the criminal justice system fails to protect the innocent and persons with serious mental disabilities and illnesses from execution. Even the administration of executions is utterly flawed: Every method of execution comes with an intolerably high risk of extreme pain and torture.”
Criminal Law Reform: “The Criminal Law Reform Project (CLRP) focuses its work on the ‘front end’ of the criminal legal system—from policing to sentencing— seeking to end excessively harsh criminal justice policies that result in mass incarceration, over-criminalization, and racial injustice, and stand in the way of a fair and equal society…. CLRP is working to fundamentally change the punishment bureaucracy by reversing the tide of incarceration, protecting constitutional rights, eliminating racism, and increasing government accountability and transparency.”
Disability Rights: “The ACLU strives for an America free of discrimination against people with disabilities, where people with disabilities are valued, integrated members of society who have full access to education, homes, health care, jobs, and families. We are also committed to ensuring people with disabilities are no longer segregated into, and overrepresented in, civil and criminal institutions such as nursing homes, psychiatric hospitals, jails, and prisons.”
Free Speech: “The fight for freedom of speech has been a bedrock of the ACLU’s mission since the organization was founded in 1920, driven by the need to protect the constitutional rights of conscientious objectors and anti-war protesters. The organization’s work quickly spread to combating censorship, securing the right to assembly, and promoting free speech in schools…. Over the years, the ACLU has frequently represented or defended individuals engaged in some truly offensive speech. We have defended the speech rights of communists, Nazis, Ku Klux Klan members, accused terrorists, pornographers, anti-LGBT activists, and flag burners. That’s because the defense of freedom of speech is most necessary when the message is one most people find repulsive.”
HIV: “The ACLU HIV Project seeks to create a just society for all people living with HIV regardless of race or income. Through litigation, lobbying, public education, and organizing, we work to build a country where our communities can live openly without discrimination and enjoy equal rights, personal autonomy, and freedom of expression and association.”
Human Rights: “The ACLU Human Rights Program (HRP) is specifically dedicated to holding the U.S. government accountable to universal human rights principles and rights guaranteed by the U.S. Constitution.”
Immigrants’ Rights: “The ACLU Immigrants’ Rights Project is dedicated to expanding and enforcing the civil liberties and civil rights of immigrants and to combating public and private discrimination against them.”
Juvenile Justice: “The ACLU is committed to challenging the criminalization and incarceration of young people—particularly youth from disenfranchised communities. We are promoting positive approaches to school discipline and seeking to dismantle the ‘school-to-prison pipeline.’ We are working to change laws and policies so that states and local jurisdictions use youth jails and prisons sparingly and instead provide effective community-based services and supports to system-involved young people and their families. Ending excessive sentences and extreme punishments is of paramount importance to protect young people in the juvenile justice system. Together with national and state partners, we are committed to ending juvenile life without parole sentences so that no young person is sentenced to die in prison.”
Racial Justice: “Though generations of civil rights activism have led to important gains in legal, political, social, employment, educational, and other spheres, the forced removal of indigenous peoples and the enslavement of those of African descent marked the beginnings of a system of racial injustice from which our country has yet to break free. From our public schools where students of color are too often confined to racially isolated, underfunded, and inferior programs, to our criminal justice system that disproportionately targets and incarcerates people of color and criminalizes poverty, to the starkly segregated world of housing, the dream of equal justice remains an elusive one.”
LGBT Rights: “The ACLU has a long history of defending the LGBTQ community. We brought our first LGBTQ rights case in 1936 and founded the LGBTQ Project in 1986. Today, the ACLU brings more LGBTQ cases and advocacy initiatives than any other national organization does.”
National Security: “[A]fter the attacks of September 11, 2001, our government engaged in systematic policies of torture, targeted killing, indefinite detention, mass surveillance, and religious discrimination. It violated the law, eroded many of our most cherished values, and made us less free and less safe. Some of these policies, such as torture and extraordinary rendition, are no longer officially condoned. But most other policies—indefinite detention, targeted killing, trial by military commissions, warrantless surveillance, and racial, religious, and other forms of profiling—remain core elements of U.S. national security strategy today…. We work to ensure that the U.S. government renounces policies and practices that disregard due process, enshrine discrimination, and turn everyone into a suspect. We also seek accountability and redress for the victims of abuses perpetrated in the name of our national security. These are the ways to rebuild American moral authority and credibility both at home and abroad.”
Prisoners’ Rights: “A culture of punishment, combined with race- and class-based animus, has led the United States to rely on incarceration more heavily than any other country in the world does. The politicization of criminal justice policy and a lack of evidence-based assessment result in a one-way ratchet in which law and policy grow ever more punitive. The human and financial costs of mass incarceration are staggering, and the burden falls disproportionately on the poor and people of color.”
Religious Liberty: “As enshrined in the First Amendment, religious freedom includes two complementary protections: the right to religious belief and expression and a guarantee that the government neither prefers religion over non-religion nor favors particular faiths over others.”
Reproductive Freedom: “A decision about having a baby or having an abortion is a deeply personal, private decision best left to a woman, her family, and her doctor. Yet some politicians remain obsessed with interfering. Abortion is one of the most common medical procedures performed today, and it’s incredibly safe. But laws that make it difficult if not impossible for a woman to get an abortion if she needs one, particularly if she is poor, are increasing at an alarming pace…. Extremist politicians continue to work to shut down women’s health centers, cut off access to affordable birth control, and shame women who have abortions. Through litigation, advocacy, and public education, we strive to ensure that every woman has the opportunity to make a real decision and the ability to get the care she needs.”
Voting Rights: “Following the 2016 election, the fight for voting rights remains as critical as ever. Politicians across the country continue to engage in voter suppression, efforts that include additional obstacles to registration, cutbacks on early voting, and strict voter identification requirements. Through litigation and advocacy, the ACLU is fighting back against attempts to curtail an essential right in our democracy, the right to vote. In addition to this litigation, we are working with our affiliates to advocate for policies that make it easier for Americans to vote, such as the expansion of same-day and online voter registration.”
Women’s Rights: “Despite the tremendous progress made in the struggle for gender equality, women still face violence, discrimination, and institutional barriers to equal participation in society. Through litigation, advocacy, and public education, the ACLU Women’s Rights Project pushes for change and systemic reform in institutions that perpetuate discrimination against women, focusing its work in the areas of employment, violence against women, and education. In the employment realm, laws and workplace policies that exclude women from certain job sectors and allow them to be forced out of the workplace when they become pregnant or return to work after having a baby cause persistent disparities in women’s income, wealth, and economic security…. In the education sector, many public schools have introduced programs based on unfounded stereotypes about the learning abilities and preferences of boys and girls, limiting equal educational opportunities for all.”
Below are numerous examples of specific ACLU statements and actions vis-a-vis a variety of key issues. These examples offer a window into the core values and objectives of the organization:
The ACLU’s position on immigration was articulated in an essay entitled “Justice for Aliens,” by Steven Shapiro of the New York Civil Liberties Union and Wade Henderson of the ACLU’s Washington, D.C. office. According to this document, the desire to limit immigration in any way can only be attributed to outright “hostility” against foreigners that is “motivated by nativism, racism and red scare.” The authors write:
“[U]se of the word ‘alien’ is both precise and powerful. In almost a primitive sense, it draws a line between members of the community and those on the outside … they can be treated unequally … illegal aliens are not entitled to government benefits…. The rationale for this limitation is not an economic one … the refusal to grant these often life-sustaining benefits can be explained only by a desire to punish illegal aliens for breaking the law.”
In a similar vein, former ACLU executive director Ira Glasser attributes the concerns that many Americans have about illegal immigration to a “wave of anti-immigrant hysteria.”
The ACLU aims to: (a) expand anti-discrimination laws, so as to weaken sanctions against employers who hire illegal aliens; (b) bar immigration authorities from conducting inspections without a search warrant; (c) require U.S. Citizenship and Immigration Services to provide free legal counsel to illegal aliens; and (d) ensure illegal aliens’ eligibility for welfare benefits.
Following the September 11, 2001 terrorist attacks, the ACLU redoubled its efforts to blur any distinction between citizens and non-citizens, and between legal and illegal immigrants. In Rhode Island, for instance, the organization protested the state government’s decision not to accept Individual Tax Identification Numbers (which anyone can obtain) in place of Social Security Numbers (which only citizens can obtain) from driver’s-license applicants. The ACLU argument ran as follows: “As long as there is a substantial population of undocumented immigrants in the state, it makes little sense to deprive them of a license solely because of their immigration status…. [T]he DMV should not be in the inappropriate role of serving as INS agents. Whether a person should get a drivers’ license should be based solely on whether they are qualified as drivers and are residents of the state.”
Also post-9/11, the ACLU of Florida urged state officials to oppose a Justice Department initiative designed to give local and state police the power to enforce federal immigration laws. Howard Simon, executive director of the ACLU of Florida, said in 2002: “While we expect local police to cooperate with federal authorities in apprehending anyone, including non-citizens, who is suspected of criminal activity, local police should not be in the business of detaining or arresting law-abiding aliens based on their immigration status.”
After 9/11, the ACLU organized protests against an INS and Justice Department registration system that required males over the age of 16 who were “temporary visitors” to the U.S. from 25 mostly Arab and Muslim countries, to register with the Bureau of Citizenship and Immigration Services or face deportation. In state after state, ACLU leaders called the practice “discriminatory” and depicted it as nothing more than a pretext for rounding up Arab and South Asian men and expelling them from the country. Said a June 2002 ACLU press release:
“The ACLU has long opposed immigrant registration laws, saying that they treat immigrant populations as a separate and quasi-criminal element of society and that they create an easy avenue for surveillance of those who may hold unpopular beliefs. The fingerprinting and tracking proposal is only the latest Bush Administration action targeted at Muslims and people of Middle Eastern descent since September 11. Other discriminatory measures have included round-ups, dragnet questioning, the detention of more than a thousand young men and the targeting of Middle Eastern communities for heightened enforcement of minor immigration law violations.”
Similarly, the ACLU has opposed the use of immigration-law violations as justification for holding or deporting suspects with ties to terrorism, and the use of secret or classified evidence in deportation hearings.
The Texas chapter of the ACLU was a signatory to a February 20, 2002 document condemning the detention of immigrants apprehended in connection with post-9/11 terrorism investigations. The document read, in part, “[T]hey [the U.S. government] are coming for the Arab, Muslim and South Asian immigrants.… The recent ‘disappearances,’ indefinite detention, the round-ups,… the denial of any due process … have chilling similarities to a police state.”
Post-9/11 as well, the ACLU, along with the Bill of Rights Defense Committee, led a coalition of civil liberties groups urging city councils across the United States to pass resolutions creating “Civil Liberties Safe Zones”; that is, to be non-compliant with the provisions of the PATRIOT Act. The ACLU also endorsed the Civil Liberties Restoration Act of 2004, which was introduced by leftist Democrats in Congress to roll back, in the name of protecting civil liberties, vital national-security policies that had been adopted after the September 11th attacks.
On the eve of Operation Iraqi Freedom in March 2003, when FBI and Homeland Security agents were tracking down illegal Iraqi immigrants considered to be dangerous, the ACLU set up a telephone hotline and conducted “Know Your Rights” training sessions giving illegals free advice on how to avoid deportation.
In April 2013, when a bipartisan group of eight U.S. senators proposed an immigration-reform bill that would bar applicants from becoming legal U.S. residents if they had ever been convicted of at least one felony or at least three misdemeanors, Cecillia Wang, director of the ACLU’s Immigrants’ Rights Project, said: “There are serious civil rights concerns. There shouldn’t be any kind of automatic disqualifiers.”
After President Donald Trump signed a January 2017 executive order calling for the denial of federal grants to sanctuary cities, the ACLU, arguing that the order was unconstitutional, helped counties and cities nationwide to sue the Trump Administration.
In an effort “to keep radical Islamic terrorists out of the United States of America,” President Trump issued a January 25, 2017 executive order temporarily suspending most travel and refugee admissions to the U.S. from Iran, Iraq, Somalia, Libya, Sudan, Yemen, and Syria. In response, the ACLU immediately sued the Trump Administration on behalf of foreign travelers detained at U.S. airports, and also challenged the constitutionality of the president’s order. When the Administration subsequently produced a revised list of targeted nations — dropping Iraq and Sudan while adding North Korea, Venezuela, and Chad — the ACLU continued to challenge the policy. As ACLU staff attorney Cody Wofsy put it: “This [latest] Muslim ban is yet another attempt to … paper over the president’s plain religious animus, which he has never disavowed. The courts have not been fooled and have rightly seen the previous versions of the order as unreasonable, immoral, and unconstitutional. The same is true of this one.”
In November 2017, the ACLU wrote a letter asking the Department of Homeland Security (DHS) to end the so-called 287(g) program that authorized state and city police departments to cooperate with, and to carry out the work of, the U.S. Immigration and Customs Enforcement (ICE) agency. Said the ACLU: “The Trump administration has recklessly expanded the program to include jurisdictions volunteering to join Trump’s deportation force…. The costs of enmeshing local law enforcement agencies in the business of federal civil immigration enforcement far outweigh the benefits.”
In March 2018 the ACLU filed a class-action lawsuit demanding that the U.S. government — upon apprehending asylum-seeking families that had illegally crossed the southern U.S. border from Mexico — stop separating the adult members of those families from their children. But the policy of separating parents and children at the border was nothing new. It had originated in 1997, when the government agreed that it would thenceforth release alien children “without unnecessary delay” to the custody of responsible adult guardians. Eighteen years later, in 2015, California federal district court judge Dolly Gee, an appointee of President Obama, ruled that all children apprehended while crossing the border illegally had to be released within 20 days, while their parents remained in custody to await the adjudication of their immigration-law violations.
In May 2019, the ACLU of Texas filed a $100 million lawsuit on behalf of the family of Claudia Patricia Gómez González, a 20-year-old Guatemalan woman who, after having illegally entered the United States a year earlier, was shot to death by a U.S. Border Patrol agent. Texas ACLU legal director Andre Segura said: “Her life was as valuable as anyone else’s, and her family deserves justice for their loss. Our government has a responsibility to treat everyone lawfully, humanely, and with respect regardless of how they came into this country.” In response to the lawsuit, U.S. Customs and Border Protection — the parent agency of Border Patrol — claimed that a member of the migrant group with which González was traveling had rushed the Border Patrol agent and ignored orders to get on the ground, prompting the agent to fire a single round, which struck González.
In July 2019, the ACLU filed a lawsuit in the U.S. District Court for the Southern District of New York in an effort to prevent the Trump administration from carrying out a planned roundup of illegal migrants from El Salvador, Guatemala, and Honduras who had not appeared at deportation hearings. “For the many families who came here as refugees fleeing violence, deportation is a death threat,” said New York Civil Liberties Union executive director Donna Lieberman. “We will fight to ensure no one faces this kind of peril without having their case considered in court.”
In a September 26, 2019 letter to Department of Homeland Security (DHS) officials, ACLU attorneys requested that DHS — instead of returning pregnant migrant women to Mexico while they awaited their asylum hearings in the United States — release those migrants into the U.S. interior, where they could give birth to babies who would automatically obtain birthright American citizenship. According to the ACLU, the recently enacted Trump Administration policy of returning such women to Mexico not only “violates the rights of all subjected to it,” but also was the cause of numerous “adverse effects” that were “particularly acute among vulnerable populations, such as pregnant women.”
In September 2019 as well, the ACLU announced that it would seek a court injunction to block President Trump’s effort to divert $3.6 billion away from military construction projects, and toward the construction of a wall on the southern U.S. border with Mexico. “We’ll be back in court very soon to block Trump’s latest effort to raid military funds for his xenophobic wall,” said Dror Ladin, staff attorney with the ACLU’s National Security Project.
In October 2019 the ACLU filed a federal lawsuit in Arizona against the Trump Administration, “seeking damages on behalf of thousands of traumatized children and parents” from Guatemala and Honduras who, after having violated American immigration laws, “were forcibly torn from each other under the Trump Administration’s illegal practice of separating families at the border.” “The suffering and trauma inflicted on these little children and parents is horrific,” said ACLU lawyer Lee Gelernt. “Tragically, it could take years for these families to heal. Some may never recover, but we are fighting to give them a chance.” The ACLU elaborated: “[Border crossers] have suffered harm, including emotional suffering and pain, mental anguish, inconvenience, loss of enjoyment of life, monetary damages, and being deprived of their constitutionally protected rights to substantive and procedural due process and equal protection.” In addition to the damage payments, the lawsuit also demanded “the creation of a fund to pay for professional mental health services for affected families.”
In October 2019 as well, the ACLU asked a federal court to order the government to allow migrant children to be released directly to their parents, even if those parents had criminal records that included felonies or violent misdemeanors. Keeping families together at any cost, the organization argued, was the most important consideration.
In the aftermath of the 9/11 attacks, the ACLU used much of its massive budget to oppose virtually every effort by the United States to prosecute a war against its terrorist enemies abroad and keep the populace safe at home. In October 2001, a bipartisan majority in Congress passed the anti-terrorism PATRIOT Act. Among other crucial security provisions, this legislation tore down the legal barriers that had prevented law enforcement, intelligence and national security agencies from coordinating their efforts prior to 9/11, and which most certainly created vulnerabilities that made the attacks possible. Thanks to the PATRIOT Act, U.S. authorities were able to thwart at least 29 terrorist plots post-9/11, including the 2002 “Lackawanna Six” plot in which information sharing between drug and counterterrorism investigators, made possible by the Act, allowed authorities to crack down on a terrorist cell in Buffalo, New York.
From the beginning, the ACLU portrayed the PATRIOT Act as draconian, intrusive, and unconstitutional, a “chilling grab of authority and further diminution of constitutional checks and balances on law enforcement,” even though it contained many safeguards to protect civil liberties and had secured support in both parties, liberals and conservatives alike. The lawsuits the ACLU began to file against the PATRIOT Act helped to erode the law’s legitimacy in the eyes of the lay public, while an ACLU-led campaign outside the courts helped to persuade local and state governments to pass resolutions that: (a) condemned the PATRIOT Act as a “threat to fundamental rights and liberties,” and (b) refused to cooperate with Homeland Security officials in enforcing the Act’s provisions.
In 2003 the ACLU held rallies on behalf of an Intel software engineer in Oregon named Maher Mofeid Hawash, whom U.S. officials were holding in custody on suspicion that he had given material support to Taliban and al Qaeda forces fighting American troops in Afghanistan. (In February 2004, Hawash was convicted of the aforementioned crimes and was sentenced to seven years in prison.)
When University of South Florida professor Sami Al-Arian was indicted in February 2003 for his involvement with the terrorist organization Palestinian Islamic Jihad (PIJ), the ACLU tried to thwart the U.S. government’s investigation of Al-Arian’s role in funding PIJ suicide bombings in Israel. Toward that end, the ACLU argued that the search warrants authorizing an FBI raid of Al-Arian’s home and offices were overly broad, and that the items which had been seized as evidence should therefore be returned to him. After Al-Arian was incarcerated, Howard Simon, executive director of the ACLU of Florida, excoriated Attorney General John Ashcroft for “the disgusting raw exercise of power” he was displaying in the Al-Arian case. Indeed, from the time of his arrest and throughout his trial, the ACLU spearheaded a campaign to portray Al-Arian as a political victim, targeted by the U.S. government solely because he was a Palestinian.
The ACLU also came to the defense of radical attorney Lynne Stewart, who in February 2005 was convicted on charges that she had illegally “facilitated and concealed communications” between her client, the incarcerated “blind sheik” Omar Abdel Rahman, and members of his Egyptian terrorist organization, the Islamic Group, which has ties to al Qaeda. On February 17, 2005, just after Stewart had been sentenced for her crimes, the ACLU of Massachusetts declared her prosecution “a chilling testament to what is being done to individual rights and to the rule of law itself in the name of ‘fighting terrorism.’”
In August 2005, the publication G2 Bulletin reported that ACLU lawyers had been present during interrogations of captured al Qaeda- and Taliban-affiliated enemy combatants who were being detained in Guantanamo Bay; in the majority of cases, these attorneys advised the inmates that they were under no obligation to answer military interrogators’ questions.
Post-9/11, the ACLU signed an agreement pledging to check any and all of its new hires against terrorism watch lists, so as to comply with PATRIOT Act regulations and thereby remain eligible to receive nearly $500,000 from the Combined Federal Campaign (CFC), an agency that dispenses charitable donations from federal and state employees to more than 2,000 non-profit groups. But in 2004 the ACLU reneged on this promise. As ACLU executive director Anthony Romero wrote at that time: “It is increasingly clear that the PATRIOT Act and the government’s ‘war on terror’ are threatening the ability of America’s non-profit charities to do their essential work. By requiring non-profit charities to check their employees against a ‘blacklist’ in order to receive donations from the CFC, you are furthering a climate of fear and intimidation that undermines the health and well-being of this nation.”
In January 2006, the ACLU—along with the Council on American-Islamic Relations (CAIR), Greenpeace, and several individuals—filed a federal lawsuit in Detroit seeking to block President Bush’s domestic eavesdropping program, which authorized federal surveillance of international phone calls and e-mails of people, including American citizens, who were believed to pose a terror risk. “By seriously compromising the free speech and privacy rights of the plaintiffs and others, the program violates the First and Fourth Amendments of the United States Constitution,” said the lawsuit. The Center for Constitutional Rights filed a similar suit in New York.
The ACLU strongly opposed the Military Commissions Act of 2006, an statute that authorized the president to detain enemy combatants after a military review.
Many of the ACLU’s campaigns have taken place under the banner of its “National Security Project,” which in reality is devoted to the sabotage of American national security. As Andrew Walden reported in a November 24, 2009 article titled “The ACLU’s Terror Lobby”:
In September 2007 the ACLU won a court victory when federal judge Victor Marrero struck down a key part of the USA PATRIOT Act. At issue was a post-9/11 law that gave broader investigative powers to law-enforcement officials. Reported the Associated Press: “The ACLU had challenged the law on behalf of an Internet service provider, claiming that the law allowed the FBI to demand records without the kind of court supervision required for other government searches. Under the law, investigators can issue so-called national security letters to entities like Internet service providers and phone companies and demand customers’ phone and Internet records.”
The ACLU’s sustained assault on the PATRIOT Act was part of a broader campaign by the left to oppose national security measures and make it more difficult to gather vital intelligence, which would enable the government to prevent terrorist attacks. In December 2005, the New York Times disclosed classified details of the National Security Agency’s domestic surveillance program. One element of the program, instituted in the aftermath of the September 11 attacks, authorized the government to intercept emails and phone calls sent by foreign nationals already identified as terrorists to people in the United States. The ACLU marshaled its legal forces to kill the program, calling it “illegal spying” and filing suit to prevent it from going into effect. In August 2006, the ACLU achieved its goal, when Detroit district court judge Anna Taylor Diggs sided with the ACLU and ruled the program unconstitutional. Critics quickly pointed out that Judge Diggs had a clear conflict of interest that should have prevented her involvement in the case. At the time of the ruling, she was a secretary and trustee of the Community Foundation for Southeastern Michigan in Detroit, an organization that had given at least $125,000 to the Detroit chapter of the ACLU since 1999. Diggs’s ruling was overturned by an appeals court in 2007, but the leaks had already drastically weakened the program by alerting the terrorists to is existence, allowing them to take counter-measures. Eventually this reality and the continuing attacks from the “civil liberties” left forced the administration’s hand. In January 2007 President Bush decided not to reauthorize the program.
In 2008 the ACLU and the National Association of Criminal Defense Lawyers (NACDL) collaborated to launch the John Adams Project (JAP), whose purpose was to: (a) provide legal defense for “high value detainees,” then called “enemy combatants,” being held by the United States government at the Guantánamo Bay detention facility, and (b) shut down America’s military commissions system and try terrorists in civilian courts instead. The project was named after John Adams, who, early in his career as a lawyer, had represented British soldiers charged with killing American colonists during a 1770 riot in Boston – somewhat different from al-Qaeda terrorists picked up on the field of battle in a war they had declared on the United States. To that end, the ACLU accused the government of illegally holding the terrorist detainees and challenged the legality of the proposed military commissions. Opposing the ACLU challenge, the Bush Administration’s view was that terrorists should be designated unlawful enemy combatants and treated accordingly as wartime enemies. Consequently it held that they should be tried in the military justice system, not granted the rights of U.S. citizens in federal court. This assertion was entirely in keeping with legal precedent. But the ACLU was so successful in promoting the view that the military commissions system at Guantanamo was illegitimate, that it became part of the policy agenda of the incoming Obama Administration. As one of his first acts as president, Obama announced that he would close the Guantanamo Bay facility by the end of his first year in office. In the fall of 2009 Obama further announced that the September 11 mastermind, Khalid Sheikh Mohammed, and four other accused plotters would be tried in a criminal court in New York.
While the John Adams Project failed in its ultimate goal of shutting down Guantanamo Bay and the military commissions trials, it did succeed in damaging the U.S. intelligence community. In 2008, lawyers affiliated with the Project tracked down and photographed CIA officers living in the Washington, D.C. area, including some with covert status. They then smuggled the photographs into Guantanamo and surreptitiously gave them to detainees as part of a deliberate campaign to identify CIA officers who had been involved in “enhanced interrogations” of terrorist suspects or had served in so-called CIA “black sites” overseas. Photos of the CIA officers were reportedly found in the cell of al-Qaeda terrorist Mustafa al-Hawsawi, the paymaster of the 9/11 attacks who was captured together with Khaled Sheikh Mohammed in 2003 and interrogated by the CIA before being transferred to Guantanamo Bay. Not only did the John Adams Project lawyers put the lives of covert operatives and their families at risk, but they may have also broken a number of laws in the process, including the Intelligence Identities Protection Act.
In 2009 the ACLU called for the charges against Guantanamo detainee Abd al-Rahim Hussain Mohammed al-Nashiri, a notorious al-Qaeda terrorist who had orchestrated the USS Cole bombing along with numerous other attacks, to be dropped because he had confessed to his crimes under “torture” (i.e., waterboarding) by his American interrogators.
In 2009 the ACLU released a report attacking the U.S. government’s efforts to shut down charities that financed terrorism. According to Steven Emerson of the Investigative Project on Terrorism: “The report … suggests (contrary to a substantial body of evidence) that the U.S. government was wrong to have acted against the Holy Land Foundation for Relief and Development, the Al-Haramain Islamic Foundation, the Global Relief Foundation and other charities accused of raising money for terrorist organizations.”
In the ACLU’s calculus, post-9/11 policies targeting these charities have had a “disproportionate” effect on Muslims and “are undermining American Muslims’ protected constitutional liberties and violating their fundamental human rights to freedom of religion, freedom of association, and freedom from discrimination.” To rectify this situation, the ACLU recommended the repeal of Executive Order 13224, which had been issued shortly after 9/11 to create mechanisms for identifying certain individuals and organizations as “specially designated global terrorists.” Further, the organization demanded that the FBI employ the “least intrusive means” necessary when conducting its investigations, and it called for a federal ban on law-enforcement practices that “disproportionately” targeted people “based on ethnicity, national origin or religion.” According to Dennis Lormel, who created the FBI’s terror financing section, the ACLU recommendations would mean “more money for Hamas.”
In 2010, the ACLU and the Center for Constitutional Rights (CCR) jointly filed a lawsuit seeking to end a U.S. government program that authorized the killing of accused terrorists like the Muslim cleric (of Yemeni descent) Anwar al-Awlaki, who was: (a) a dual citizen of the United States and Yemen; (b) an al Qaeda “regional commander” who had called for Muslims worldwide to wage jihad against America and the West; (c) a trainer and spiritual adviser to “Christmas Day bomber” Umar Farouk Abdulmutallab; and (d) a onetime Virginia-based imam whose sermons were attended by three of the 9/11 hijackers (two of whom he met with privately) and by Fort Hood shooter Nidal Malik Hasan (with whom he communicated regularly, and whose deadly 2009 shooting rampage he praised). Filed on behalf of Awlaki’s father, the ACLU/CCR lawsuit demanded that before the younger Awlaki could be targeted for military action, the government would have to: (a) “disclose the criteria that are used in determining whether the government will carry out the targeted killing of a U.S. citizen,” and (b) present evidence of “concrete, specific and imminent threats to life or physical safety, and [that] there are no means, other than legal force, that could reasonably be employed to neutralize the threats.”
In February 2011, the ACLU filed a lawsuit to hold former defense secretary Donald Rumsfeld liable for the detention of Jose Padilla, the so-called “dirty bomber” affiliated with al Qaeda. A federal district court in South Carolina dismissed the suit, but in June 2011 the ACLU appealed that dismissal to the 4th Circuit Court of Appeals. Ben Wizner, litigation director of the ACLU’s National Security Project, said: “If the law does not protect Jose Padilla — an American citizen arrested on American soil and tortured in an American prison — it protects no one.”
By 2011 as well, the ACLU — along with allies like the Massachusetts-based Bill of Rights Defense Committee — had spent a full decade constantly striving to delegitimize the PATRIOT Act. This strategy was ultimately successful in eroding the original bi-partisan support that the PATRIOT Act had received. During the Act’s original passage, just one Democrat, Wisconsin’s left-libertarian Russ Feingold, had voted against it. But thanks to the tireless efforts of the anti-PATRIOT Act campaign, by the time key provisions of the bill came up for extension in February 2011, congressional support for the law had diminished significantly. Democrats in the House voted against extending several of the bill’s provisions, and Republicans were no longer unified in their support, with 26 voting against. Michelle Richardson, the ACLU’s legislative counsel, declared that she was “glad to see there is bipartisan opposition to the PATRIOT Act 10 years later.”
As a result of the ACLU’s campaign, three critical surveillance provisions were initially dropped from the Act: one measure permitting roving wiretaps on phones, one that gave the FBI court-approved access to library records relevant to a terrorism investigation, and one that permitted secret intelligence surveillance of non-U.S. “lone wolf” residents not known to be affiliated with a specific terrorist organization. Although Congress eventually extended these measures, the ACLU had succeeded in calling their legitimacy into question.
In the wake of the April 15, 2013 incident where two Chechen terrorists detonated bombs on a crowded street during the Boston Marathon (killing 3 and wounding more than 170), the U.S. government captured one of the perpetrators alive and — invoking a rare public-safety exception sparked by concerns involving the activities of a “potential enemy combatant” — announced that he would not be read his Miranda rights prior to being interrogated. ACLU executive director Anthony Romero condemned that decision, saying: “Every criminal defendant is entitled to be read Miranda rights. The public safety exception should be read narrowly. It applies only when there is a continued threat to public safety and is not an open-ended exception to the Miranda rule.”
In late September 2016, the ACLU began representing Ahmed Khan Rahami, an Afghani man accused of setting off two bombs that had injured more than 30 people in New York and New Jersey. The previous week, federal judges had denied requests by public defenders who were seeking to be appointed to represent Rahami – on grounds that Rahami was still unconscious following multiple surgeries for the gunshot wounds he had sustained during a shootout with New Jersey police officers, and thus had not yet been officially arrested by federal authorities. ACLU attorney Alexander Shalom said that Rahami’s father and wife had requested that the ACLU represent the suspect until a federal public defender or other lawyer could be assigned to him. Udi Ofer, executive director of the ACLU’s New Jersey chapter, said that the denial of Rahami’s right to a lawyer “violates the Constitution and needlessly sacrifices civil liberties in the name of national security.” “It is outrageous that Mr. Rahami has been in custody for a week yet has been denied the right to have an attorney visit him to confirm his condition and protect his constitutional rights,” Ofer added.
In a 2002 federal lawsuit naming Secretary of Transportation Norman Mineta as a defendant, the ACLU challenged a new Aviation Transportation Security Act policy prohibiting non-citizens from working as airport security screeners. In conjunction with the Council on American-Islamic Relations, the ACLU lobbied against any policy that would authorize security personnel at airports and border checkpoints to scrutinize travelers from terrorism-sponsoring nations any more closely than other travelers. Depicting racial and ethnic profiling as “shameful and unlawful,” the ACLU has represented Muslim and Middle Eastern plaintiffs in discrimination lawsuits against numerous airlines.
The ACLU opposed the Computer-Assisted Passenger Profiling System (CAPPS), which, prior to its termination in August 2004, was used by airlines to check for various passenger characteristics that historically have been correlated with terrorist activities. In late 1997, when the CAPPS system was first set to be put in place, the ACLU set up a special online complaint form to collect information on incidents of discrimination and mistreatment by airport security personnel. As then-ACLU legislative counsel Gregory Nojeim explained, his organization was “concerned that the CAPPS system will have an unequal impact on some passengers, resulting in their being selected for treatment as potential terrorists based on their race, religion or national origin.” The ACLU has sued over the National Security Agency’s terrorist surveillance programs in Detroit, New York, Oregon, and San Francisco.
The ACLU protested a post-9/11 FBI initiative to count and document all of America’s mosques—wherein extremist calls for violent jihad were not uncommon.
The ACLU’s policy guide states that all civil and criminal laws prohibiting polygamy should be repealed. During a 2005 speech at Yale Law School, for instance, ACLU president Nadine Strossen said: “We have defended the right for individuals to engage in polygamy. We defend the freedom of choice for mature, consenting individuals.” This was not necessarily a new position for the ACLU, as evidenced by the wedding “vows” of ACLU founder Roger Baldwin in 1919:
“To us who passionately cherish the vision of a free human society, the present institution of marriage among us is a grim mockery of essential freedom…. We deny without reservation the moral right of state or church to bind by force of law a relationship that cannot be maintained by the power of love alone…. The highest relationship between a man and a woman is that which welcomes and understands each other’s loves. Without a sense of possession, there can be no exclusions, no jealousies. The creative life demands many friendships, many loves shared together openly, honestly, and joyously…”
The ACLU asserts that the First Amendment “protects” child pornography, and that consequently there should be no federal or state governmental restriction on its distribution, reproduction, sale, or use by anyone, including pedophiles.
In May 2006, the ACLU filed a federal lawsuit arguing that portions of a Kentucky law intended to prevent protesters from disrupting funerals for U.S. soldiers who had been killed in Iraq, were unconstitutional because they placed excessive limits on freedom of speech and expression. The law in question, which had been signed the previous month by Kentucky’s governor, banned protests within 300 feet of memorial services, wakes, and burials. The law was subsequently suspended in September 2006, when the federal judge presiding over the ACLU suit ruled that the statute was too broad.
In July 2006, the ACLU filed another federal lawsuit in the U.S. District Court of Jefferson City, Missouri, on behalf of Rev. Fred Phelps‘ Westboro Baptist Church in Kansas, whose parishioners had stoked controversy by picketing the funerals of service members while displaying signs condemning homosexuality. By Phelps’ reckoning, God was allowing U.S. troops to be killed in the Mideast as retribution for America’s permissive attitudes toward gay and lesbian lifestyles. In the lawsuit, the ACLU claimed that a Missouri law forbidding such demonstrations was unconstitutional because it placed limits on the protesters’ free-speech rights based solely on the content of their message. The presiding judge in that case eventually ruled (in 2010) that Missouri laws restricting protests near funerals were unconstitutional.
In 2018, an ACLU memo described how the organization should balance “competing values or priorities” when deciding whether to defend free-speech cases in court, meaning that its professed commitment to the defense of free speech rights was no longer absolute. On the premise that “speech that denigrates [marginalized] groups can inflict serious harms,” the memo stated that “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values” constituted a reason not to defend it.
In March 2011, the Capital Research Center (CRC) laid bare the truth about the ACLU’s position on religious freedom:
“On its website the ACLU declares forthrightly that ‘the right to practice religion, or no religion at all, is among the most fundamental of the freedoms guaranteed by the Bill of Rights.’ In practice, however, ACLU attorneys frequently make legal arguments against religious freedom whenever Christian symbols are introduced in a public place. Whether it’s a student wearing a cross in school or a minister invoking Jesus’s name during a pre-meeting prayer at a local government office, some ACLU lawyer is apt to argue a case for suppressing the public expression of religious belief. Critics have noted that ACLU lawyers typically become involved in cases that seek to prohibit, not protect, the public display of religion. Rather than uphold the First Amendment, these legal cases undermine it. ACLU’s critics conclude that the organization is not really committed to freedom of religion. It is committed to freedom from religion.”
Moreover, CRC quoted Joseph Infranco, a senior attorney with the Alliance Defense Fund (ADF), a non-profit legal group that litigates many First Amendment cases involving religious freedom, describing the ACLU as “the greatest censor of religion in our nation today.”
The ACLU does, however, selectively accept a small number of cases in defense of religious expression. On its website, the organization cites more than 100 cases in which it has gotten involved “on behalf of self-identified Christians” and people of “minority faiths.” But as ADF media-relations director Greg Scott points out: “The tiny number of cases in which the ACLU represents a Christian is a flimsy veil in the context of its complete body of work. A few dozen examples is a thin record for a 90-year-old organization that claims to be involved in 6,000 cases per year.”
“Church and state” issues have been a recurring theme on the ACLU docket for many years. Each spring, as high-school graduation approaches, the organization distributes a letter to public schools, warning them that no one is permitted to pray or make public remarks referring to their faith at graduation ceremonies. Moreover, the ACLU calls on public schools to censure any speech that might be viewed as having a religious tone.
In July 2005 the ACLU of North Carolina (ACLU-NC) filed suit challenging the state courts’ policy of refusing to allow non-Christians to swear religious oaths using any text other than the Christian Bible. According to the ACLU, “North Carolina’s existing statute governing religious oaths is broad enough to allow the use of multiple religious texts in addition to the Christian Bible.” “In the alternative,” said the organization, “if the Court does not agree that the phrase ‘Holy Scriptures’ in the North Carolina state statute must be read to permit texts such as the Quran, the Hebrew Bible and the Bhagavad-Gita in addition to the Christian Bible, then the ACLU-NC asks the Court to strike down the practice of allowing the use of any religious texts in the administration of religious oaths.”
In 2006 the ACLU demanded that the town of St. Bernard, Louisiana—adjacent to New Orleans—be prevented from erecting a gold and silver cross as part of its memorial to the victims of Hurricane Katrina, even though the memorial was financed by private funds and was located on private land.
That same year, the ACLU and Americans United together sued the school board of Harrison County, West Virginia, demanding the removal of a portrait of Jesus that had hung outside a principal’s office at Bridgeport High School for more than 30 years. On October 6, 2006, the Harrison County School Board voted to settle the legal action, agreeing not to display the picture of Jesus or any other devotional art at Bridgeport High.
In May 2006, the ACLU provided legal representation for a 17-year-old Muslim high-school student in Louisville, Kentucky who objected to the planned inclusion of a Christian prayer in his school’s upcoming graduation ceremony. Said the student: “Terms like ‘Jesus Christ,’ ‘heavenly father,’ I talked about the fact I was Muslim and the prayers in the past were offensive to me.” The federal judge who heard this case granted a temporary restraining order prohibiting the prayer from being recited during the graduation ceremony.
In a 2006 small-claims court case against a car-rental company in Michigan, a Muslim woman, Ginnah Muhammad, refused to remove her face mask (niqab) while she testified. When the judge dismissed her case as a result, the ACLU argued on her behalf for a “religious exception” to courtroom attire. Michael Steinberg, legal director of the ACLU of Michigan, stated: “The Michigan Supreme Court should not slam the door of justice on a category of women just because of their religious belief … Under the proposed rule, women who are sexually assaulted do not have their day in court if they wear a veil mandated by their religion.”
In September 2011, the ACLU defended the right of Muslims to pray in San Diego’s public schools. As Kevin Keenan, an ACLU spokesperson in that city, explained: “Performing these prayers is widely recognized as one of the five essential pillars of Islam.” This position represented a stark contrast to the ACLU’s four-decade track record of threatening to sue school boards, school administrators, and school children if they prayed Christian prayers on campus; warning school coaches and sporting-event coordinators that if they were to pray in public, they would be sued for violating the Establishment Clause; and sending emissaries to monitor city-council meetings nationwide for evidence that those meetings may have opened with a prayer.
In September 2011 the ACLU filed (on behalf of an atheist student) a successful lawsuit against Cranston High School West in Rhode Island, demanding that the school remove from one of its walls a banner bearing a prayer written by a seventh-grader in 1963. The prayer read as follows: “Our Heavenly Father: Grant us each day the desire to do our best, to grow mentally and morally as well as physically, to be kind and helpful to our classmates and teachers, to be honest with ourselves as well as with others. Help us to be good sports and smile when we lose as well as when we win. Teach us the value of true friendship. Help us always to conduct ourselves so as to bring credit to Cranston High School West. Amen.” When U.S. District Judge Ronald Lagueux ruled in January 2012 that the prayer display violated the First Amendment and ordered its immediate removal, Rhode Island ACLU executive director Steven Brown said: “The ruling issued in this case is a victory for religious freedom.”
In recent years, the ACLU has waged an advertising campaign and filed numerous lawsuits aimed at overturning felon-disenfranchisement laws (which bar convicted felons from voting in political elections) in a number of states.
In 2007 the ACLU condemned draft regulations for the implementation of the Real ID Act (H.R. 418), a proposal aimed at stiffening federal laws to: (a) protect against terrorists’ entry into the U.S.; (b) prevent people from abusing the state driver’s license process to obtain false identification; and (c) expand the legal definition of “terrorist organization” and “engaged in terrorist activity,” as those terms pertain to U.S. immigration law. According to the ACLU, the measure would constitute a “real nightmare” for America that “will only lead to a national identity card system that violates personal privacy …”
In April 2012 the ACLU announced that, in conjunction with the NAACP, it would soon file suit over a recently enacted Pennsylvania voter-identification law. Asserting that the law discriminated against voters who were elderly, poor, disabled, and urban-dwelling, Witold Walczak, legal director of the ACLU of Pennsylvania, said: “It will result in the disenfranchisement of thousands of legal Pennsylvania voters in order to combat virtually nonexistent voter fraud.”
In August 2012, the ACLU and the League of United Latin American Citizens (LULAC) filed a lawsuit in Iowa to stop state election officials from removing the names of non-citizens from lists of registered voters.
In September 2012, the ACLU of Michigan filed a lawsuit in federal court challenging, as an unconstitutional violation of federal and state law, Michigan secretary of state Ruth Johnson’s decision to place, on all political election ballots, a “citizenship checkbox” where voters would be required to affirm that they were U.S. citizens. Kary L. Moss, executive director of the Michigan ACLU, characterized the checkbox as an example of “cynical voter-suppression tactics” that “should not be tolerated.” Joining the ACLU in the lawsuit were the Service Employees International Union and several other interest groups.
In July 2017, the ACLU filed a federal lawsuit against the Presidential Advisory Commission on Election Integrity that President Trump had recently established to examine whether voter fraud, improper voter registration, and voter suppression had occurred during the 2016 presidential election. According to ACLU attorney Theresa Lee, the Commission’s process was “cloaked in secrecy, raising serious concerns about its credibility and intent.”
The ACLU was an Organizer of the April 25, 2004 “March for Women’s Lives,” a Washington, D.C. rally that drew more than a million demonstrators advocating the right to taxpayer-funded abortion-on-demand.
In June 2015, the ACLU sued the Trinity Health Corporation, a Catholic-run health care chain that operated or managed 86 hospitals in 21 states, for not making abortion services available to women. In April 2016, a federal district judge dismissed the lawsuit, writing: “Plaintiffs have not explained what medical conditions would place their members at risk, or if any of their members have such a condition that would place them at risk…. Obviously, pregnancy alone is not a ‘particular condition’ that requires the termination of said pregnancy. To find the claim to be ripe for review on the facts pleaded before this Court would be to grant a cause of action to every pregnant woman in the state of Michigan upon the date of conception. Accordingly, the alleged harm has not risen beyond a speculative nature and is not ripe for review.”
In December 2015, the ACLU filed a lawsuit against Mercy Medical Center (MMC) in Redding, California, a Catholic-run hospital operated by the Little Sisters of the Poor. The suit was filed on behalf of Rebecca Chamorro, who had asked MMC to perform a tubal ligation to render her sterile after her scheduled Caesarean section on January 28. When MMC, in accord with the Ethical and Religious Directives for Catholic Health Care Services of the United States Conference of Catholic Bishops, declined Chamorro’s request, the ACLU brought its lawsuit, claiming that the plaintiff was being denied “basic reproductive health care.” “It’s an incredibly common procedure used by a significant number of married women, but it’s being denied based on religious doctrine,” said Elizabeth Gill, senior staff attorney with the ACLU of Northern California. “It’s a real problem.”
When the Trump Administration in 2017 — in the interests of protecting religious liberty — rolled back regulations that had made it mandatory for employer-provided insurance plans to provide free birth control and abortifacients, the ACLU sued the Administration for “authorizing and promoting religiously motivated and other discrimination against women seeking reproductive health care.”
In May 2019, the ACLU and Planned Parenthood filed a federal lawsuit designed to prevent the enactment of a new Alabama law banning all abortions except in cases where the life of the mother was in danger. The plaintiffs claimed that the law, once implemented, would cause “immediate and irreparable harm” to women seeking an abortion by “forcing them to continue their pregnancies to term against their will.” Said senior ACLU staff attorney Alexa Kolbi-Molinas: “The Alabama legislature has been pushing abortion care further and further out of reach for years with medically unnecessary and politically-motivated restrictions, and this extreme abortion ban shows us just how far they’ll go to push their anti-abortion agenda.”
In December 2019 the U.S. Supreme Court ruled on a case which the ACLU had brought on behalf of Kentucky’s lone remaining abortion clinic. In its decision, the Court left in place a 2017 state law requiring doctors, before carrying out any abortion procedure, to: (a) perform an ultrasound on the pregnant woman; (b) show fetal images to the woman; (c) describe the ultrasound in detail to the woman; and (d) allow the woman to hear the baby’s heartbeat. By the ACLU’s telling, such “display and describe” ultrasound laws violate physicians’ speech rights under the First Amendment.
According to InfluenceWatch.org, “The ACLU has a long history of supporting an expanded interpretation of rights for accused defendants and lighter sentencing laws for convicts. Throughout the 1960s the ACLU successfully supported or argued a number of U.S. Supreme Court cases that made it harder for the police to gather evidence during criminal investigations, and was criticized for expanding the rights of criminals.”
When Los Angeles police chief William Bratton vowed in late 2002 to apply “broken windows” policing practices in an effort to reduce crime in the city’s most dilapidated and impoverished areas, the ACLU immediately launched an aggressive effort to stop him. As Manhattan Institute scholar Heather Mac Donald reports:
“A few developers had started converting empty office buildings in adjacent areas of downtown to lofts; the activists seized on this revitalization of Los Angeles’s historic core as proof that the evil capitalists were seeking to afflict the poor. In March 2003, the ACLU filed a lawsuit against the department’s efforts to track down the hundreds of violent parole violators and absconders in Skid Row encampments who were driving up violent crime. And in an even more ambitious lawsuit, Jones v. City of Los Angeles, the ACLU charged that application of the city’s ordinance against sleeping or lying on the sidewalk violated the Eighth Amendment’s ban on cruel and unusual punishment.”
Consistent with its belief that the U.S. is a nation infested with racism and injustice, the ACLU of Southern California endorsed an October 22, 2002 National Day of Protest exhorting Americans to rise up and “Stop Police Brutality, Repression and the Criminalization of a Generation.” The document announcing this event stated: “Since September 11, 2001, the authorities have rapidly imposed a resoundingly repressive atmosphere.… All over the U.S. people are being killed by law enforcement officers at an escalating rate.… Hard-won civil liberties and protections have been stripped away as part of the government’s ‘war on terrorism.’” Moreover, this document explicitly defended terrorist-abetter Lynne Stewart, al Qaeda operative Jose Padilla, cop-killer Mumia Abu-Jamal, and double-murderer Leonard Peltier. The ACLU depicts all four of these individuals as persecuted political prisoners of a repressive American government.
In June 2006, the ACLU filed a lawsuit against the City of Indianapolis because of a newly passed local ordinance that would fine convicted child molesters, predators, and rapists $600 if they were found within 1,000 feet of playgrounds, swimming pools, recreation centers, or sports fields when children were present.
On October 7, 2015, the New York Times reported that the Obama Justice Department was “preparing to release roughly 6,000 inmates from federal prisons starting at the end of this month as part of an effort to ease overcrowding and roll back the harsh penalties given to nonviolent drug dealers in the 1980s and ’90s.” “Today’s announcement is nothing short of thrilling because it carries justice,” said ACLU senior legislative counsel Jesselyn McCurdy. “Far too many people have lost years of their lives to draconian sentencing laws born of the failed drug war. People of color have had to bear the brunt of these misguided and cruel policies. We are overjoyed that some of the people so wronged will get their freedom back.”
In April 1997 the ACLU of Illinois filed a federal lawsuit challenging the City of Chicago’s operation of scout troops affiliated with the Boy Scouts of America (BSA)—on grounds that the BSA had traditionally required its members to profess their belief in God, and had barred homosexual men from being scout leaders.
In 2010 the ACLU won a lawsuit against the city of San Diego for violating the separation of church and state. At issue was an agreement, which the city had honored since 1957, allowing the Boy Scouts of America to lease (for $1 per year) 18 acres of city-owned park land for its annual events. But the ACLU went to court on behalf of activists who opposed Scout policies which excluded atheists and homosexuals. The ACLU claimed that the city, by renewing its lease with the Scouts, was violating its own laws prohibiting discrimination against gay people. Further, the ACLU charged that by not opening the lease to competitive bids the city had illegally given a preference to a religious organization that required its members to pledge to fulfill their “duty to God” and to be “reverent.”
In 2005 the ACLU endorsed an amendment calling for an end to the ban on U.S. tourist travel to Cuba. A year later, the organization demanded an end to bans on academic travel to Cuba. And in 2007 the ACLU argued in federal court that a Miami-Dade County school board had broken the law by removing from its school libraries the book Vamos a Cuba (Let’s Visit Cuba), which, according to formwer Alliance Defense Fund president Alan Sears, “offers a strangely luminous view of life in Castro’s island ‘paradise'”; is “devoid of any mention of the oppressive regime instituted by Fidel Castro“; is “filled with breezy commentaries on how Cubans enjoy” fine foods and leisure activities; and features a cover “adorned with beaming children dressed in the uniform of the Pioneers, the Communist youth organization that Cuban children are required to join.”
In a similar spirit, in 2011 the ACLU sued the state of Florida for having banned publicly funded universities from using state money to finance trips to countries designated as sponsors of terrorism: Cuba, Iran, North Korea, Sudan, and Syria.
In May 2004, a Sterling Heights, Michigan councilwoman asked the city’s attorney to prepare an ordinance requiring businesses with foreign-language signs to also display identifiers such as “bakery,” “deli,” or “bank”—on the rationale that people passing by the site of a fire, crime, or other emergency could better inform emergency-personnel dispatchers about the location if they could read the signs. But in a letter issued two months later to city officials in Sterling Heights, the ACLU stated: “We write to strongly urge you to abandon the measure as unconstitutional, anti-immigrant and unnecessary.” Additional signatories of the letter included officials from the American-Arab Anti-Discrimination Committee of Michigan, and Latin Americans for Social and Economic Development.
The ACLU has received funding from many charitable foundations, including such notables as the Annie E. Casey Foundation, the Arca Foundation, the Carnegie Corporation of New York, the Columbia Foundation, the David and Lucile Packard Foundation, the Ford Foundation, the Geraldine R. Dodge Foundation, the JEHT Foundation, the Jessie Smith Noyes Foundation, the John D. and Catherine T. Macarthur Foundation, the Joyce Foundation, the Lear Family Foundation, the Mertz Gilmore Foundation, the Minneapolis Foundation, the Nathan Cummings Foundation, George Soros‘s Open Society Institute, the Public Welfare Foundation, the Rockefeller Foundation, the Sandler Family Supporting Foundation, the Scherman Foundation, the Tides Foundation, the William and Flora Hewlett Foundation, the Woods Fund of Chicago, the Arcus Foundation, the Hilda Mullen Foundation, the Lewis B. & Dorothy Cullman Foundation, the Robert W. Wilson Charitable Trust, the San Francisco Foundation, and the Yellow Chair Foundation.
Following the April 19, 2015 death in police custody of a black Baltimorean named Freddie Gray — a 25-year-old black man with a long rap sheet — angry mobs and radical agitators overran Maryland’s largest city with violent riots. They were already angry at the highly sensationalized deaths in recent years of black males such as Trayvon Martin (Sanford, Florida), Michael Brown (Ferguson, Missouri), Eric Garner (Staten Island, New York), and Tamir Rice (Cleveland, Ohio) at the hands of non-blacks, and the seemingly senseless death of Gray further stoked their rage. With tensions boiling in the city, Baltimore State’s Attorney Marilyn Mosby said on May 1 that she was answering popular “calls for ‘No justice, No peace,’” by laying murder and other criminal charges against six police officers — three white men, two black men, and one black woman — in connection with Gray’s death. Renowned criminal lawyer Alan Dershowitz accused Mosby of “overcharging” the officers in order to appease the rioters. He noted that charging a defendant with an excessively serious crime made it more likely that when the case eventually went to trial the jury would acquit, and that more riots would likely be the result.
But the ACLU’s Maryland chapter celebrated when Mosby announced the charges. “For years, victims of police violence, overwhelmingly Black, have sought justice to no avail,” said executive director Susan Goering. “This historic moment is the result of the tireless efforts of families who have lost loved ones to police violence — here in Baltimore, throughout Maryland, and all across America…. We hope this marks the beginning of a nationwide awakening to the many injustices and inequalities that we have allowed to continue for far too long.”
In December 2015, Loring Wirbel, a board member of the ACLU’s Colorado chapter and co-chair of the organization’s Colorado Springs chapter, wrote, on his Facebook page, the following about supporters of Republican presidential hopeful Donald Trump: “The thing is, we have to really reach out to those who might consider voting for Trump and say, ‘This is Goebbels [Nazi propagandist Joseph Goebbels]. This is the final solution. If you are voting for him I will have to shoot you before election day.’ They’re not going to listen to reason, so when justice is gone, there’s always force …”
When one Facebook commenter replied by stating that Trump’s opponents should try to “defeat him with reason and data” rather than force, Wirbel doubled down on his original position, writing: “But see, most people don’t even know what reason is. They don’t use anything other than the lower brain and would no more make decisions based on logical conclusions than choose milk based on a theme song. The base of the Republican Party is unfamiliar with a cortex.” In yet another Facebook post, Wirbel called Trump a “hate-speech felon who should be in prison.”
Soon after posting his controversial remarks, Wirbel resigned from his ACLU post. Saying that his comments had been meant “totally as a joke,” he characterized his critics as purveyors of “smear politics.”
In a December 2015 article which she wrote for the Washington Post, Rana Elmir — an American Muslim who was deputy director of the ACLU of Michigan — declared that she “emphatically” refused to condemn jihadist terrorists “just because I’m Muslim.” In her piece, Elmir likened the systematic slaughters committed by Islamists around the world to “the terror advanced by mostly white men at the alarming rate of one mass killing every two weeks in this country.” Specifically, Elmir drew a parallel between the Islamic State and “Dylann Storm Roof’s attack on parishioners of a historic black church in South Carolina, Robert Dear’s attack on a Planned Parenthood facility, the murder of 20 children at Sandy Hook Elementary School,” and “the slaughter of moviegoers in Colorado or Louisiana.” Added Elmir:
During President Donald Trump’s first 10 months in office in 2017, the ACLU filed at least 112 legal actions, including ethical complaints, calls for investigations, Freedom of Information Act requests, and 56 lawsuits against Mr. Trump and his administration. A number of these were cited in earlier sections of this profile. Some more examples:
In 2018, the ACLU announced that it planned to abandon its traditional stance as a so-called “nonpartisan” organization, in favor of open activism. Toward that end, it vowed to spend some $25 million attacking Republican policies during the midterm election cycle. According to Politico.com:
“The ACLU has already committed to spending $5 million to qualify and propel a ballot initiative in Florida to re-enfranchise up to 1.5 million convicted felons. [Executive director Anthony] Romero said that if the proposal succeeds in adding that many voters to the rolls ahead of the 2020 election, the effect will be ‘felt not just in Florida, but across the country, in terms of a very different view of the political map.’ A seven-figure investment in a similar ballot initiative in another state is being finalized, Romero said. And the ACLU has begun to zero in on other races: in Kansas, where conservative Kris Kobach is running for governor; in Wisconsin, where Gov. Scott Walker is running for another term; and in a slate of races for Republican-held House seats that Democrats are trying to flip. In all, ACLU officials say they expect to get involved in about a dozen races, including for district attorney in California and Texas.”
In response to the ACLU’s announcement, former ACLU board member Alan Dershowitz wrote the following in June 2018:
“The director of the American Civil Liberties Union has now acknowledged what should have been obvious to everybody over the past several years: The ACLU is no longer a neutral defender of everyone’s civil liberties. It has morphed into a hyper-partisan, hard-left political advocacy group. The final nail in its coffin was the announcement that, for the first time in its history, the ACLU would become involved in partisan electoral politics, supporting candidates, referenda and other agenda-driven political goals…. For the first time in its history, the ACLU is taking an active role in elections. The group has plans to spend more than 25 million dollars on races and ballot initiatives by Election Day, in November.’
“Since its establishment nearly 100 years ago, the ACLU has been, in the words of the New Yorker, ‘fastidiously nonpartisan, so prudish about any alliance with any political power that its leadership, in the 1980s and 90s, declined even to give awards to likeminded legislators for fear that it might give the wrong impression.’ I know, because I served on its national board in the early days of my own career. In those days, the board consisted of individuals who were deeply committed to core civil liberties, especially freedom of speech, opposition to prosecutorial overreach and political equality. Its board members included Republicans and Democrats, conservatives and liberals, right wingers and left wingers, all of whom supported neutral civil liberties. The key test in those days was what I have come to call ‘the shoe on the other foot’ test: Would you vote the same way if the shoe were on the other foot, that is, if the party labels were switched?
“Today, the ACLU wears only one shoe, and it is on its left foot. Its color is blue. The only dispute is whether it supports the progressive wing of the Democratic Party or its more centrist wing. There is little doubt that most board members today support the progressive wing, though some think that even that wing is not sufficiently left. There is no longer any room in the ACLU for true conservatives who are deeply committed to neutral civil liberties. The litmus test is support for hard-left policies.
“To be sure, the ACLU will still occasionally take a high profile case involving a Nazi or Klan member who has been denied freedom of speech, though there are now some on the board who would oppose supporting such right-wing extremists. But the core mission of the ACLU — and its financial priority — is to promote its left-wing agenda in litigation, in public commentary and, now, in elections. If you want to know the reason for this shift, just follow the money. ACLU contributors, including some of its most generous contributors, are strong anti-Trump zealots who believe that the end (getting rid of Trump) justifies any means (including denying Trump and his associates core civil liberties and due process).”
Similarly, in an April 2018 appearance on the Fox News Channel’s Fox & Friends program, Dershowitz said of the ACLU: “It is a partisan, hard-left, political organization, which no longer cares about the civil liberties of all Americans. It is agenda-driven, money-driven, and anti-Trump.”
In April 2018, the ACLU published an article celebrating the recent FBI raid on the office, apartment, and hotel room of President Trump’s personal lawyer, Michael Cohen, in which Bureau agents had seized materials that included communications from Trump to Cohen. The government typically is not permitted to access such communications without search warrants issued only upon a finding of probable cause, and without first exhausting other means of obtaining the information in question. As journalist Joel Pollak notes: “In cases where it is necessary to study such communications, the FBI establishes a supposedly independent ‘taint team’ that sifts through the material and, theoretically, only passes on evidence to prosecutors that does not violate attorney-client privilege…. [Critics] point out that such raids on attorneys are very rare, and argue that the president’s Fourth Amendment right to privacy, Fifth Amendment right against self-incrimination, and Sixth Amendment right to counsel have been compromised.” Harvard Law School professor emeritus Alan Dershowitz remarked: “If this were Hillary Clinton being investigated and they went into her lawyer’s office, the ACLU would be on every television station in America jumping up and down.”
But ACLU legal director David Cole defended the raids:
“The ACLU is the nation’s premier defender of privacy, and we’ve long maintained that the right of every American to speak freely to his or her attorney is essential to the legal system. These rights are protected by the Fourth, Fifth, and Sixth Amendments, and we are second to none in defending them — often for people with whom we fundamentally disagree.
“But we also believe in the rule of law as an essential foundation for civil liberties and civil rights. And perhaps the first principle of the rule of law is that no one — not even the president, let alone his lawyer — is above the law. And no one, not even the president, can exploit the attorney-client privilege to engage in crime or fraud.”
In June 2019, the conservative organization Our Watch published video footage showing ACLU staff attorney Ruth Dawson: (a) instructing school teachers on progressive sexual education and gender theory; (b) telling teachers how they could help students obtain abortions without parental knowledge or consent; and (c) explaining how teachers could effectively bar parents from opting their children out of LGBTQ education classes. Other topics addressed in the videos included such practices as mutual masturbation, gender roles, the gender spectrum, gender role play, blood play, dental dams, and fisting.
In July 2019, the ACLU voiced strong opposition to a Republican Senate bill to designate Antifa members as “domestic terrorists.” “It is dangerous and overly broad to use labels that are disconnected [from] actual individual conduct,” said ACLU National Security Project director Hina Shamsi. “And as we’ve seen how ‘terrorism’ has been used already in this country, any such scheme raises significant due process, equal protection, and First Amendment constitutional concerns.”
In September 2019 the ACLU filed a formal complaint with the Michigan Department of Civil Rights against Republican congressional candidate Peter Meijier, over his refusal to host a drag show featuring “Drag Syndrome,” a London-based troupe of mentally disabled performers with Down Syndrome, at a venue he owned in Grand Rapids, Michigan. Explaining his opposition to the show in question, Meijier voiced concern that the performers, due to their mental limitations, would be unable to give their “full and informed consent” to participate in a sexualized dance routine. But the ACLU complaint accused Meijer of discriminating against the performers on the basis of their disability. “If members of the group were to perform an orchestra recital, chances are he wouldn’t have canceled the performance,” said Jay Kaplan, a staff attorney for the ACLU of Michigan.
At the ACLU of Southern California’s Bill of Rights dinner in November 2019, the organization presented Christine Blasey Ford — a psychology professor who in 2018 had made unsubstantiated accusations claiming that Supreme Court nominee Brett Kavanaugh had sexually assaulted her at a party 36 years earlier as a teenager — with its Rodger Baldwin Courage Award.
In December 2019, the ACLU, citing its commitment to “menstrual equity,” demanded that feminine hygiene products be placed in men’s rest rooms in order to avoid “menstruation-related discrimination” against transgender and “non-binary” individuals. “While free menstrual products are not uniformly provided in women’s restrooms, they are almost never available in men’s restrooms, even for pay,” the ACLU said in a statement. “Men’s restrooms are also less likely to have a place to dispose of these products conveniently, privately, and hygienically.” And refuting the notion “that ‘only women’ menstruate, get pregnant, or breastfeed,” the ACLU said “that is not a full or accurate portrayal — and menstrual stigma and period poverty can hit trans and non-binary people particularly hard.”
Lamenting, further, that taxes on menstrual products made such items less “accessible and affordable,” the ACLU approvingly cited UC Berkeley Law School dean Erwin Chemerinsky’s recently published op-ed “proposing that the failure of states to exempt menstrual products from sales tax — the tampon tax — amounts to denial of equal protection under the Constitution.”
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