A Long, Uncivil War

Wendy Kaminer's new book, Worst Instincts: Cowardice, Conformity and the ACLU, is the latest chapter in the impassioned civil libertarian's long war with the organization she once loved. In it, Kaminer argues that Anthony Romero, who took over the American Civil Liberties Union from longtime leader Ira Glasser a week before September 11, has thoroughly corrupted the organization. It attributes the fact that most ACLU board members and supporters seem to disagree to, well, cowardice and conformity. It is, naturally, a boon to the right, which loathes the ACLU and relishes reports of left-wing perfidy from native informers. That, though, is not the reason that this febrile, furious volume is so unfortunate.

Very few writers could pull off what Kaminer, a former ACLU board member, is attempting here. She frames her story as a "conflict between individual morality and group solidarity," in which she plays the role of the heroic, martyred dissident. Further, the book presumes to use this conflict to illuminate the moral dangers of groupthink. To follow her analysis, one has to accept the a priori assumptions that, first, Romero’s tenure has been catastrophic, and, second, that the reason others disagree is due to lamentable defects in human psychology. Yet her attacks on Romero are so personal and so vituperative they end up, if anything, creating sympathy for him and his allies.

The backstory to all this lies in the wrenching challenges the ACLU faced after September 11. Ira Glasser, who had led the organization for 23 years, retired during the summer of 2001 to spend more time with his family. Romero, Glasser's chosen successor, came from the Ford Foundation, where he was director of human rights and international cooperation. An ACLU outsider, he made what almost everyone acknowledges were mistakes during his first couple of years. In December 2002, there was a technical glitch on the ACLU's online store that revealed information about people who had shopped there. The breach led the New York attorney general's office to levy a $10,000 fine. (It was reimbursed by the Web contractor responsible for the site.) Though Kaminer doesn't mention it in her book, the ACLU personally notified everyone whose privacy was violated. But Romero took six months to inform the board of what had happened, even though he was legally required to tell it within 30 days. He called it an oversight; Kaminer believes it was an attempted cover-up.

More errors followed. After the passage of the Patriot Act, the Ford Foundation included a provision in its grant agreements requiring recipients to certify that they "will not promote or engage in violence, terrorism, bigotry or the destruction of any State." The ACLU had over $2 million in Ford grants, and in 2004, Romero signed the agreement without informing the board. Worse, it soon emerged that Ford had sought his advice on complying with the Patriot Act, and he had actually advised them to use language taken from the act itself. He argued that he was telling Ford to follow the law but go no further, but his critics made the more compelling case that the agreement represented acquiescence to free speech violations. Eventually, the ACLU refused the money.

Even Romero acknowledges he was in the wrong here. He's also been clear in agreeing that he was wrong to enter the ACLU into an agreement with a federal charitable-giving program that required a promise not to hire people on post-9/11 watch lists. The question is whether these mistakes are indicative of systematic cravenness. Many ACLU supporters -- including the majority of the board, which marginalized Romero's most persistent critics -- felt they were not. After all, under him, membership and funding have increased enormously, the staff has grown, and the organization has had some major victories, including, most recently, the release of the Bush torture memos in response to an ACLU lawsuit.

"Anthony did the big things right and he made a couple of rookie mistakes, which he quickly corrected, and the organization has been more important than ever under his leadership," says Danny Goldberg, a onetime national board member who still sits on the board of the ACLU's California affiliate (as well as on the board of The American Prospect). Aryeh Neier, who preceded Glasser as ACLU executive director, is similarly impressed. Now president of the Open Society Institute, one of the ACLU's major funders, he says, "I have admired the immense energy and dynamism that Anthony Romero has brought to the organization. I don't think that [at] any time in the organization's history it has performed better than it has since September 11, 2001."

But a few significant figures, including Glasser and Kaminer, became convinced that Romero was compromising the ACLU's very soul. They saw him transforming the organization that once defended the right of Nazis to march on Skokie, Illinois, into just another liberal interest group, money-hungry and cowed by political correctness. By the end of 2006 there were dueling Web sites on which Romero's most prominent supporters and detractors published their claims and counterclaims.

Glasser seems to regret giving up his job; some of Romero's supporters speculated that he must have been pained by leaving right before the kind of event he'd spent his whole life preparing for. Reporting on the controversy for the Prospect in 2006, Tara McKelvey quoted Laura W. Murphy, the former director of the ACLU's legislative office in Washington, as saying, "[Glasser] was on a baseball team that never made it to the playoffs. And right after he left, the team went to the World Series."

"I have had a long and very positive relationship with Ira Glasser; I love and admire him," says Gloria Feldt, the former CEO of the Planned Parenthood Federation of America, who often worked in coalition with both Glasser and Romero. "But I will tell you as someone else who has led a big social movement, when you lead you have to lead. And Ira wanted to continue pulling the strings, I don't want to say from beyond the grave, but that's kind of what it was."

One could spend thousands of words debating the merits of various aspects of Romero's performance. But that's the point -- most of the issues are complicated and debatable. Kaminer, though, sees it all in strikingly Manichean terms.

"One of the most glaring acts of omission during the post-9/11 era, either unacknowledged or unnoticed by the board, was the ACLU's failure to help provide representation for detainees when the Bush administration consigned them to the Guantanamo detention center in early 2002," she writes. Though Kaminer doesn't say so, there's a reason the ACLU didn't get involved right away. As Neier points out, the ACLU is not a criminal-defense organization. It defends the rights of the accused but does not take positions on their culpability for underlying crimes. Neier gives the example of an ordinary capital-punishment case: "You are opposed to capital punishment, but you don't want to try [to] pretend on behalf of the ACLU that the person who faces the death penalty did not commit the murder."

Eventually, Romero decided that the abuse of Guantanamo detainees was so outrageous as to merit going beyond the ACLU's traditional mission and joining in their defense. When he did, the Open Society Institute and another major donor, Atlantic Philanthropies, declined to provide funding. "In both cases, I think we were motivated as much by our concern for what was the proper role of the ACLU as anything else," Neier says. Kaminer felt Romero was too timid, while Neier says, "I think he wasn't prudent enough." Perhaps Kaminer is right, and Romero should have acted sooner. Yet reading Worst Instincts, one would have no idea that there was, in fact, a good-faith debate going on and that Romero might have had reasons for what he did that went beyond spinelessness or incompetence.

Throughout the book, Kaminer portrays Romero as something of a monster. She describes his "characteristic, perhaps instinctive resort to anger and self-pity to repel criticism and counter an argument for which he lacks a rebuttal" and says that "emotional manipulation was his forte." She also, in deriding affirmative action "quotas," goes out of her way to point out that Romero, the Bronx-born son of Puerto Rican immigrants, is a beneficiary of them.

How to explain, then, why the majority of the ACLU's famously disputatious board repeatedly sided with him? At one point, Kaminer suggests they were "wary of criticizing the ACLU's first gay, Latino leader." Either that, or they were brainwashed. "When reasoned admiration of a leader inflates to exaltation, he's apt to lead the organization and its members off a cliff -- not always metaphorically, as mass suicides of religious cults attest," she writes in one of the book's more staggering passages. "The tragedies of Heaven's Gate, the Branch Davidians, or the People's Temple in Jonestown may not have much to teach us about banal organizational decline, but they do illustrate the potentially limitless power of malevolent, unaccountable leaders to define reality for their followers."

That is quite an insult to a group of very serious civil libertarians, never mind Romero. The book is a ringing declaration of the value of dissent, but it reduces disagreement with its author to a pathology.

Kaminer has long been an admirable, trenchant social critic, and it could be that she was simply too close to this subject to write about it well. That's too bad, because there are some fascinating philosophical questions buried within this book's intemperate pages. The mission of the ACLU is indeed changing as the organization grows. Whereas previously it was focused on litigation, it now increasingly sees the need to promote civil liberties through lobbying, communications, and public relations. Meanwhile, conservative groups like the Alliance Defense Fund have arisen to sue on behalf of conservative clients. That leads to questions about whether the ACLU should use its resources to replicate the ADF's efforts in order to demonstrate its commitment to protect all speech or whether it should concentrate on the cases no one else is taking. (Incidentally, Kaminer, who accuses Romero of excessive liberal partisanship, never mentions that under his leadership the ACLU hired former right-wing Congressman Bob Barr as a consultant.)

Beyond such strategic questions, there are often real tensions between an organization's ideals and the realpolitik necessary to run it. The ACLU, for example, has internal guidelines on sexual harassment to protect itself from lawsuits, even though it has been critical of the way sexual harassment laws and policies impinge on free speech. Is that hypocrisy or realism? A purist, Kaminer argues that it's hypocrisy. That's a plausible position, but she does her own side no favors by acting as if it's the only plausible position. It's not that one expects her to be a moral relativist; indeed, one of the reasons she's been such an important voice in the past is because of the strength and clarity of her views. But when righteousness is inflamed by a sense of persecution and untempered by empathy or nuance, it can turn into rigid sanctimony. Kaminer, a longtime opponent of religious fundamentalism, should know that as well as anyone.