American Civil Liberties Union (ACLU)
American Civil Liberties Union (ACLU)
Although the American Civil Liberties Union (ACLU) was founded in 1920, its roots extend back to at least 1917, with the formation of the Civil Liberties Bureau by Roger Baldwin and Crystal Eastman. During this era, fears of war and the threat of communism fueled a growing climate of hostility toward civil liberties in the United States. The notorious Palmer Raids of 1919–1921, authorized by U.S. Attorney General Alexander Mitchell Palmer, resulted in numerous civil rights violations, including arrests without probable cause, denial of right to counsel, and lack of judicial review. Individuals were detained in crowded cells and subjected to physical and mental abuse. Many immigrants detained in these raids were subsequently deported, with no opportunity to challenge their detention or deportation.
Against this backdrop of civil liberties violations, Roger Baldwin established the American Civil Liberties Union on 19 January 1920. Although several civil rights organizations already existed in the United States, including the National Association for the Advancement of Colored People (NAACP) and the Anti-Defamation League, the ACLU offered a broader vision of civil liberties and a commitment to defend this vision through litigation, public education, lobbying, and civic engagement.
The ACLU consists of a national administrative structure and a set of affiliate offices located throughout the country. The ACLU national headquarters is located in New York and works closely with a legislative office in Washington, D.C., and several program-specific offices, including the Immigrants’ Rights Project; Capital Punishment Project; Lesbian, Gay, Bisexual, and Transgender Project; and the Women's Rights Project. ACLU policy is established by the National Board of Directors in consultation with staff. The ACLU affiliates play an integral role in implementing ACLU policy at the local level. Although the affiliates work closely with the national administrative structure, they maintain significant autonomy and can implement their own policies. Case selection occurs at both the national and local levels. Financially, the ACLU receives funding from several sources, including member contributions and private foundations. In 2008 the ACLU had an annual budget of approximately $106 million. Most funding, which includes support of the program-specific offices as well as affiliate offices, is allocated to ACLU legal programs.
International human rights norms, and especially civil and political rights, have always played a role in the ACLU's work and can be found in the treaties and customary practices of the international community. These norms took on greater significance for the ACLU in the late twentieth century and became an integral feature of ACLU work following the 9/11 terrorist attacks.
Litigating Civil Liberties
The ACLU has litigated many cases in defense of civil liberties and has supported many more through activism and educational outreach. The ACLU's docket encompasses a wide variety of civil liberties issues, including racial equality; voting rights; reproductive freedom; women's rights; and freedom of speech, religion, and association. Other prominent issues are protecting immigrant rights; defending the rights of lesbian, gay, bisexual, and transgendered people; working on behalf of prisoners’ rights; protecting privacy; and working to abolish the death penalty.
One of the first ACLU cases is also one of the most significant in American history. The Scopes Monkey Trial examined the legality of a Tennessee law that prohibited the teaching of evolution theory in public schools. Adopted in 1925, the Tennessee law was the first in the country to criminalize the teaching of evolution. Because of the law's implications for academic freedom and separation of church and state, the ACLU announced its interest in defending any teacher who was prosecuted for violating the law. The Tennessee school teacher John Scopes, who taught science in Dayton, Tennessee, agreed to challenge the law. Seeking to publicize the case, Dayton officials hired the noted lawyer and former presidential candidate William Jennings Bryan to prosecute the case. Clarence Darrow, a respected litigator and national figure, agreed to represent Scopes on behalf of the ACLU. The trial received extensive media attention and brought significant publicity to the ACLU. Scopes pleaded not guilty, asserting that the Tennessee law was unconstitutional, although he readily admitted violating the law. From the outset, the proceedings did not go well for Scopes. Despite objections, the trial judge started each day of the trial with a prayer. Darrow's efforts to submit testimony on science and religion were rejected by the judge. Students testified at trial that Scopes had taught evolution in class, and Darrow never introduced testimony to deny this. Seeking to bolster his case, Darrow then convinced Bryan to testify as an expert witness about creationism and evolution. Even though Darrow managed to undermine Bryan's credibility, the jury ultimately convicted Scopes, who was fined a hundred dollars. Scopes responded that he would continue “to oppose this law in any way…. Any other action would be in violation of my ideal of academic freedom—that is, to teach the truth as guaranteed in our constitution, of personal and religious freedom” (The World's Most Famous Court Trial, p. 313). On appeal, the Tennessee Supreme Court reversed the conviction, yet it upheld the legality of the statute. The ACLU, however, continued to challenge the constitutionality of anti-evolution statutes. The Tennessee statute remained in effect until it was repealed in 1967. The U.S. Supreme Court ultimately rejected the legality of anti-evolution statutes the following year in Epperson v. Arkansas. According to the Supreme Court, “The law's effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First, and in violation of the Fourteenth Amendment to the Constitution.”
Another prominent set of ACLU cases took place during World War II. Following the Japanese attack on Pearl Harbor, President Franklin Delano Roosevelt, on 19 February 1942, signed Executive Order 9066, which authorized the establishment of military areas in the United States and the exclusion of any individuals from these areas. The order was then used as the basis for imposing restrictions on Japanese Americans in the United States, including their evacuation and exclusion from most of the West Coast and their eventual internment. These restrictions were imposed for discriminatory reasons, as no credible evidence existed that Japanese Americans posed any security threat to the United States. Eventually, 120,000 Japanese Americans were evacuated from their homes on the West Coast and forced to relocate in internment camps scattered throughout the United States. When the restrictions were first announced, a great debate ensued within the ACLU as to how to respond. Although some ACLU members argued for an emphatic rejection of these discriminatory policies, other groups within the organization were reluctant to challenge the U.S. government in a time of war.
Eventually, the ACLU decided to challenge the discriminatory practices. The organization agreed to represent Fred Korematsu, a Japanese American citizen who refused to comply with an internment order and was subsequently arrested and convicted in San Leandro, California. The ACLU also represented Gordon Hirabayashi, who was arrested for violating a curfew and relocation order in Seattle, Washington. Both cases ultimately reached the U.S. Supreme Court. In June 1943 the Court unanimously upheld Hirabayashi's conviction. In December 1944 the Court also upheld Korematsu's conviction, although this decision was not unanimous and resulted in vigorous dissents by three justices.
The Japanese internment cases represent a failure of each branch of government to protect civil liberties in time of war, from the president's decision to authorize the evacuation, exclusion, and internment of Japanese Americans; to Congress's acceptance of the policies; to the courts’ unwillingness to condemn them. The U.S. government later rejected the legacy of the Japanese internment cases: in 1984 a federal court overturned Korematsu's criminal conviction, finding that the United States had withheld relevant information during the criminal proceedings and provided misleading information to the courts. Although this judgment did not reverse the legal status of the Supreme Court's decision, it effectively removed its last vestiges of legitimacy. According to the court, “Korematsu remains on the pages of our legal and political history. As a legal precedent it is now recognized as having very limited application. As historical precedent it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees.” In 1988 Congress adopted the Civil Liberties Act, which acknowledged “the fundamental injustice of the evacuation, relocation, and internment of United States citizens and permanent resident aliens of Japanese ancestry during World War II” and apologized “on behalf of the people of the United States for the evacuation, relocation, and internment of such citizens and permanent resident aliens.” The Act authorized the payment of $20,000 to each survivor as reparation for this treatment.
One of the ACLU's most controversial cases involved the right of Nazi sympathizers to march in a predominantly Jewish community in Skokie, Illinois. In April 1977 the National Socialist Party of America (NSPA) announced that it would hold a thirty-minute demonstration in front of the Skokie Village Hall. Skokie was home to one of the largest groups of Holocaust survivors in the country, and several hundred survivors lived in Skokie and the surrounding communities. In response to public outcry, Skokie village leaders sought and received a court injunction barring the demonstration. The NSPA then contacted the ACLU and requested legal representation to challenge the injunction. When the ACLU agreed to represent the NSPA, it received significant criticism, both within the organization and throughout the country. The ACLU argued that the injunction impermissibly infringed on free speech principles protected by the First Amendment. Restricting demonstrations because of community fears would create a “heckler's veto,” thereby preventing any unpopular speech. Critics charged, however, that the ACLU's support of the NSPA encouraged racism and was an affront to democratic principles. The Cook County Circuit Court rejected the First Amendment challenge, upheld the injunction, and enjoined the demonstration. Seeking to prevent future demonstrations, Skokie village leaders also adopted three ordinances that imposed extensive requirements for holding demonstrations. After protracted litigation, the federal district court held that the three ordinances were unconstitutional because they lacked content neutrality for political expression. According to the court, “The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” The ruling was affirmed by the Seventh Circuit Court of Appeals and the U.S. Supreme Court. Despite the NSPA's legal victories, it never conducted its demonstration in Skokie.
The Skokie case was a seminal moment in ACLU history. The ACLU lost thousands of members, who criticized the organization for representing the NSPA at Skokie. But it gained even more members after the case, many of whom respected the ACLU's position on the First Amendment and the principles underlying the freedom of speech. As Roger Baldwin noted, “Tolerance of what we hate is a daring doctrine and a hard lesson to learn. Our natural instincts may tell us to suppress such dangerous threats to freedom as Nazis. However, the problem has always been, who decides?”
The ACLU has litigated countless cases in support of civil liberties, both as direct counsel on behalf of litigants and in an amicus capacity. (In an amicus capacity, the ACLU can submit a legal brief to the court even though it is not a direct party in the case.) In Escobedo v. Illinois (1964), for example, the ACLU argued that a criminal defendant has a right to counsel when in police custody. In a 5 to 4 decision the Supreme Court agreed. In Tinker v. Des Moines (1967), the ACLU represented a young student who was suspended from school for wearing a black armband to protest the Vietnam War. In a 7 to 2 decision the Supreme Court held that the armband was akin to pure speech and was protected by the First Amendment. In Doe v. Bolton (1973), the companion case to Roe v. Wade, the ACLU successfully argued that the constitutional right to privacy encompasses reproductive choice, including a woman's right to continue or terminate her pregnancy. In ACLU v. Reno (1997), the ACLU successfully challenged the 1996 Communications Decency Act, which prohibited the online dissemination of patently offensive displays. In a 7 to 2 decision the Supreme Court held that these provisions abridged the freedom of speech protected by the First Amendment. In Sosa v. Alvarez-Machain (2004), the ACLU served as counsel in a case seeking civil remedies for the abduction and detention of a Mexican doctor under the Alien Tort Statute. By a 6 to 3 margin, the Supreme Court found that federal courts had jurisdiction to hear the case, although no remedy was available for the underlying claims. In addition to this litigation, the ACLU filed amicus briefs in other prominent cases, including Brown v. Board of Education (1954), New York Times v. Sullivan (1964), Miranda v. Arizona (1966), New York Times Co. v. United States (1971), United States v. Nixon (1974), Atkins v. Virginia (2001), Grutter v. Bollinger (2003), Lawrence v. Texas (2003), and Rasul v. Bush (2004).
ACLU and International Human Rights
Although the ACLU has always relied on the U.S. Constitution to guide its work, it has also recognized the role of international human rights law in promoting civil liberties in the United States. Indeed, Roger Baldwin long championed the importance of international law and regularly sought to infuse international human rights norms into the ACLU's civil liberties work. Following World War II, greater U.S. involvement overseas also increased calls within the ACLU to address human rights standards in U.S. foreign policy. There was, however, some reluctance within the organization to address civil liberties matters outside the United States, particularly when they did not directly involve the United States.
In 1973 the ACLU National Board adopted Policy 401, which formally recognized the role of international human rights in the ACLU's work. The National Board revised Policy 401 in 1983 and 1992. According to the 1992 version, “International human rights are significant to the ACLU … because active and expressed support for human rights by the United States government, international organizations and other bodies further legitimizes and otherwise strengthens the values of civil liberties and civil rights in the United States as well as in the rest of the world.”
Policy 401 affirms ACLU support for several international human rights instruments that protect civil liberties, including the Genocide Convention, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Elimination of All Forms of Racial Discrimination, the Forced Labor Convention, and the International Covenant on Civil and Political Rights. It then calls on the United States to ratify these treaties. It notes, however, that the ACLU opposes any international agreements that discriminate against U.S. citizens.
In addition, Policy 401 urges greater reliance by the ACLU on international law and institutions. It recognizes that international law can strengthen arguments in support of civil liberties. Thus, “Lawyers arguing in American courts should more frequently invoke international legal standards. The citing of international legal principles can help the effort to fully incorporate these standards into our legal codes.” Furthermore, the policy states, ACLU lawyers should also consider using international institutions such as the United Nations to pursue civil liberties claims. “The United Nations … has developed a number of procedures for the protection of the rights of individuals and groups that need to be used. The Union can further this use of United Nations procedures by distributing a manual or manuals, prepared by groups with expertise in the field, on procedures in United Nations tribunals affecting human rights.” The 1992 revisions to Policy 401 coincided with increased use of international human rights law by the ACLU. Consistent with the policy, ACLU litigation began to reference international human rights norms in support of civil liberties. The ACLU also highlighted these international norms in other ways, including public education campaigns and lobbying efforts.
In 2004 the ACLU established its Human Rights Program “to ensure that the U.S. government complies with universal human rights principles in addition to the U.S. Constitution. The Program uses human rights strategies to complement existing ACLU advocacy on national security, immigrants’ rights, women's rights and racial justice.” The program relies on both national and international institutions to address U.S. compliance with human rights standards. It works closely with other ACLU offices, including the National Security Program and the Immigrants’ Rights Project. The adoption of Policy 401 and the establishment of the Human Rights Program increased the role of international human rights norms in the ACLU's work. The effects were twofold. First, the ACLU increasingly cited human rights law in support of its civil liberties work in U.S. courts. Second, the ACLU looked to international tribunals and organizations to challenge violations of civil liberties in the United States.
The ACLU's Response to 11 September 2001
The ACLU's human rights work became even more significant following the 9/11 terrorist attacks. The U.S. government's response to the attacks threatened civil liberties in numerous ways: surveillance programs monitored the activities of U.S. citizens and foreign nationals without probable cause or court order; immigration policies resulted in thousands of arrests, many motivated solely on ethnic, national, or religious grounds; detention policies authorized extended incarceration without access to counsel or judicial review; the writ of habeas corpus was significantly curtailed; abusive treatment of detainees was justified on national security grounds. The ACLU denounced each of these policies by campaigning for legislative reform and promoting public awareness. Many were challenged through litigation.
To promote transparency of U.S. government policy, the ACLU sought the release of U.S. government documents relating to the war on terror through the Freedom of Information Act. The ACLU was forced to litigate for the documents’ release when the United States refused to make them public. Through this litigation, thousands of documents were released. They offered details about detainee abuse at U.S. military installations in Iraq, Afghanistan, and Guantánamo; they also revealed the expansive nature of U.S. government policy toward surveillance, torture, and detention. In addition, the ACLU monitored military commission proceedings at Guantánamo. (The military commissions were established by the Bush administration to prosecute alleged terrorists for war crimes.) The ACLU's regular reports from Guantánamo raised concerns about the treatment of detainees and the legitimacy of the proceedings.
To promote accountability, the ACLU sought to hold human rights abusers responsible for their actions. In El-Masri v. Tenet, for example, the ACLU represented Khaled El-Masri, who was abducted and transferred to Afghanistan by the United States under its extraordinary rendition program. El-Masri was then detained at a CIA detention center in Afghanistan for several months. Upon his release, El-Masri sued the former director of the CIA and three aviation corporations for their involvement in his kidnapping, transfer, and detention. The federal courts eventually dismissed the lawsuit, asserting that allowing the case to proceed would be harmful to U.S. national security. In Ali v. Rumsfeld, the ACLU filed a lawsuit against senior government officials for their role in implementing policies that resulted in the torture and abusive treatment of detainees in Iraq and Afghanistan. The federal courts dismissed this case as well, holding that U.S. government officials were exempt from liability.
Along with domestic litigation, the ACLU used international institutions to challenge U.S. violations of civil liberties. In 2004, for example, the ACLU filed a complaint against the United States with the UN Working Group on Arbitrary Detention, concerning the detention of immigrants in the United States. The Working Group subsequently found that U.S. detention policies violated international law. The ACLU also filed reports with several other UN bodies, including the Human Rights Committee, the Committee against Torture, and the Committee on the Elimination of All Forms of Racial Discrimination. In addition to these international bodies, the ACLU pursued human rights claims before the Inter-American Commission on Human Rights.
Since its formation in 1920, the ACLU has defended civil liberties in the United States through litigation, public education, lobbying, and civic engagement. As a nonpartisan organization, the ACLU has consistently denounced federal, state, and local policies that threaten civil liberties, regardless of the political implications. Although international human rights norms always played a role in ACLU work, these norms became integral to its work in the late twentieth century.
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