Fwd: re: ACLU a poverty pimp?

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Published on Thursday, March 9, 2006 by the Huffington Post

 

Is Civil Liberty For Sale at the ACLU?

 

by Wendy Kaminer

 

 

Most Americans probably don't know that every time they buy a pretzel on the

street, tip a waiter, or hire anyone to contract for any personal or

professional service, they might be in danger of violating federal

blacklisting law. By statute and an Executive Order issued shortly after

9/11, all U.S. persons (including all individuals, businesses, and

charities,) are prohibited from engaging in economic transactions with

anyone named on extensive terrorist watch lists.

 

According to the Washington Post, the Administration maintains a master list

of 325,000 names. Criteria for inclusion on the list are unclear, as are the

options for getting off the list if your name appears on it by mistake, as

many names do.

 

I don't want to sound a false alarm. It's hard to imagine even the Bush

Administration trying to apply this law to innocent, incidental

transactions, (should we ever come under the omnipresent surveillance that

would expose them.) But businesses and charities might be and perhaps are

advised to take seriously the prohibition on hiring, funding, or doing

business with any person or entity named on the lists. The Ford Foundation

has unapologetically acknowledged checking its grantees against the

blacklists daily. In August 2004, expressing no concern for the inaccuracies

of extensive post 9/11 blacklists, a Ford spokesman explained to the

Washington Post that list checking was not simply required by law; in

addition, " it's just the right thing to do. "

 

Who knows how many other foundations, charities, and businesses engage in

similar screening, or how many innocent people are harmed by it?

Blacklisting can be a quiet practice, which is partly why it's so insidious.

The Bush Administration is not solely to blame if blacklists violate the

rights of the innocent. Government blacklisting relies partly on the

complicity of the private sector; it depends on the willingness of large and

powerful private entities to cooperate in blacklisting, or, at least, to

refrain from challenging it.

 

Complicity in post 9/11 blacklisting is widespread; it even extends to the

nation's most prominent civil liberties group, the ACLU. Recently, in early

January '06, the ACLU's Board of Directors (of which I am a dissident

member,) authorized Executive Director Anthony Romero to sign an entirely

voluntary contract with the Bush Administration pledging to comply with

federal blacklisting laws. Why? The ACLU is taking this pledge for money -

an expected $500,000 per year. A promise to comply with blacklisting laws is

required as a condition of participation in the Combined Federal Campaign

(CFC), a giving vehicle for federal employees and a soliciting vehicle for

qualifying charities. (Every year, federal workers are provided with a list

of charities to which they can choose to contribute through the CFC.)

 

Sad to say, the ACLU's decision to approve the CFC blacklist requirement is

not unprecedented. Two years ago, in January 2004, without informing the

ACLU Board, Executive Director Romero signed an agreement with the CFC

certifying that the ACLU " does not knowingly employ individuals or

contribute funds to organizations " named on specified " terrorist related

lists. " Romero also promised to notify the Administration of any " change in

circumstances, " regarding the ACLU's compliance with this promise.

 

Some six months later, Romero's agreement with the Administration was

exposed in the New York Times, shortly after the ACLU Board had learned

about it. Romero defended the agreement, stating that he had not checked the

blacklists (although he had printed them out) and asserting that he did not

believe that by certifying the ACLU's compliance with blacklisting he was

actually obliging the organization to check any blacklists. ACLU President

Nadine Strossen lauded Romero and characterized his interpretation of the

CFC agreement as " clever. " Still, on the same day that the Times story

appeared, the ACLU withdrew from the CFC. Like Claude Rains in Casablanca,

Romero expressed Shock! Shock! that the Administration actually expected him

to check the blacklists after he entered into an agreement promising that he

did not and would not employ anyone named on the lists.

 

The ACLU then organized a coalition of not for profit groups and sued the

CFC for requiring that participating charities engage in blacklisting - or

so it seemed from the ACLU's November 2004 press release. In fact, the

lawsuit did not challenge the constitutionality of the blacklist

requirement, which exists independently of the CFC, under federal law. To

resolve the ACLU's legal challenge, the Administration deleted from the CFC

application an explicitly stated prohibition on hiring or funding anyone

named on the blacklists. But the Administration retained in the application

a requirement that charities pledge compliance with federal blacklisting

laws, which, in turn, explicitly prohibit them from hiring or funding anyone

named on the blacklists; and charities are still explicitly encouraged,

although not formally required, by the CFC, to check the lists. List

checking is, after all, simply a means to the end of blacklisting.

 

The new, 2006 CFC application requires charities to pledge their compliance

with " all statutes, Executive orders, and regulations restricting or

prohibiting U.S. persons from engaging in transactions and dealings with

countries, entities, or individuals subject to economic sanctions

administered by the U.S. Department of the Treasury's Office of Foreign

Assets Control. " It requires charities to acknowledge their awareness of

existing lists, naming individuals (and countries) subject to such

sanctions; and charities must promise to notify the Administration

immediately of " any change in circumstances " regarding this pledge of

compliance.

 

How do ACLU leaders justify agreeing to these conditions? Romero and his

many supporters on the Board argue that the ACLU should have no compunction

about certifying its compliance with the blacklist laws because it is bound

by federal laws whether or not it agrees to obey them. That's true, but by

making an affirmative, wholly voluntary promise to obey a law that you do

not intend to obey you may subject yourself to additional liability for

intentionally misleading the government. As Martha Stewart might attest, it

is a crime to lie to the federal government.

 

So we should assume that Romero intends to avoid hiring anyone subject to

economic sanctions and named on specified lists by the U.S. government,

regardless of whether the sanctions are imposed rightly or wrongly, on the

basis of hard evidence, speculation, or bias. Romero has assured the ACLU

Board and apparently informed the government that the ACLU will not actually

check any blacklists and opposes their maintenance; still, the organization

is bound by its promise not to hire people targeted by the lists.

 

Are you confused yet? The legal complexities of this story make the truth of

it easily obscured. ACLU Board members and supporters who are not inclined

to sort out the facts for themselves -- by reading read legal papers, agency

rules, or minutes of ACLU proceedings, among other documents -- naturally

rely on what they're told by ACLU leaders and what they read in ACLU press

releases. So Romero successfully spun the change in the CFC application as a

" major victory, " even though it did not relieve charities of the obligation

to cooperate in blacklisting. In his November 2005 press release trumpeting

this questionable " victory, " Romero claimed misleadingly that charities

participating in the CFC would no longer be expected to " become law

enforcement officers for the federal government. "

 

You'd never know from reading this statement that charities participating in

the CFC would indeed be expected and would agree not to hire or support any

targets of blacklisting. This doesn't make participating charities,

including the ACLU, law enforcement officers; but it does make them willing

law enforcement collaborators, like paid informants. ACLU leaders express

outrage at the suggestion that they are selling their principles, while they

pledge to comply with blacklist laws they're supposed to oppose, for

$500,000 a year. I doubt they would have taken the pledge for free.

 

Meanwhile, many relatively progressive advocacy groups, hungry for funds,

are signing the new CFC blacklist requirement, just as many signed the old

one. It's unrealistic to expect organizations that are not devoted to

preserving civil liberties or lack expertise in civil liberties issues to

take a strong stand against blacklist laws, especially when the ACLU

voluntarily signals approval of them. The ACLU is the nation's premier civil

liberties organization; these days it sometimes leads by bad example.

 

Wendy Kaminer, a lawyer and social critic, writes about law, liberty,

feminism, religion, and popular culture. Her latest book is " Free for All:

Defending Liberty in America Today. "

 

© 2006

 

http://www.commondreams.org/views06/0309-26.htm