A few blocks from where the World Trade Center towers collapsed on 9/11, Anthony D. Romero's 19th-floor corner office commands a view of the New York harbor and the Statue of Liberty. All around us stand the landmarks of Manhattan's financial power. From this perch Romero, executive director of the American Civil Liberties Union, runs the nation's premiere civil rights organization. Having never been a litigator, he is not so much the ACLU's lawyer-in-chief as its CEO: lead fund-raiser, spokesman, coordinator, strategist, and exhorter.
Like President Barack Obama, Romero is a somewhat closeted smoker, and he wears a nicotine patch. When it is time for him to take a cigarette break on the ground-floor plaza, I ask him to assess Obama's first year in office. "I am still hopeful," Romero says. "Obama knows our issues and our values. Somewhere deep inside, he gets it. But there's a lot of inertia in government — there need to be countervailing forces. Due to our structure and our staff, we're poised to really push."
Unfortunately, the Department of Justice (DOJ) does not like being pushed. Nor has President Obama turned out to be the gale of fresh air that many had hoped for. In its first year the Obama team has done a lot of backsliding on civil liberties. It hasn't closed the detention center at Guantanamo Bay, or ended the use of military commissions for criminal trials. It still endorses "extraordinary rendition" to send detainees overseas for interrogation. And it waffled and then refused to release photos of detainees held in US custody. According to people who saw those photos, the twisted images constituted evidence that could be used to prosecute torturers and the policy-makers whose orders they followed.
In addition, the DOJ continues to invoke a sweeping interpretation of the state secrets privilege to shut down lawsuits by torture survivors and victims of a massive government-spying program, refusing to release documents revealing the alleged complicity of the telecommunications companies in warrantless data mining. (See "Challenging the State Secrets Privilege," next page.)
Through it all the ACLU has been pushing for greater transparency and tighter limits on executive power. During the period of transition from the Bush to the Obama administration, the ACLU's national office kept filing cases and Freedom of Information Act (FOIA) requests, pursuing appeals, demanding policy changes, and even suing the executive branch.
On a few occasions Romero and others in the ACLU's national office met top Obama officials. Early on, a group of civil liberties leaders that included Romero talked privately with the president. At one such event, an ACLU attorney met with David Axelrod, Obama's chief political strategist, and offered a few words of praise for initial attempts to roll back policies inherited from the Bush years. Axelrod, the attorney says, was visibly irritated, saying, "You have no idea the amount of shit we've been getting!" His message: Stop harassing the new administration and get on board.
We now know that the Department of Defense and the CIA were resisting policy changes. Last year seven former CIA directors sent an extraordinary open letter to Obama urging him to stop Attorney General Eric Holder from beginning a criminal investigation of agency interrogators who had "acted beyond their existing legal authorities."
The ACLU, however, never skipped a beat. Its National Security Project, organized by Romero in the days after 9/11, doggedly pursued litigation challenging what it views as abuses of state power. How and why the ACLU remains so focused has a lot to do with Anthony Romero's personal journey from way uptown, in the other New York City, to a corner office amid the glass towers downtown.
If Romero's arrival at the national office had been the opening scenes of a Hollywood movie, you would have rolled your eyes at the setup. On September 4, 2001, Romero became executive director of an institution synonymous with defense of the Bill of Rights. Comprised of a national headquarters and 53 highly independent local affiliates, the ACLU is a behemoth. Atop it sits the National Board — 81 barons of civil liberties who provide oversight. They include litigators, professors, intellectuals, and philanthropists famously known to be intelligent, egocentric, and pugnacious.
By contrast, Romero in 2001 was practically a kid: 35 years old, energetic and skinny, with faint acne scars. Squint your eyes slightly and he still looks to be about 19. In an organization heavily represented by patrician WASPs and Jews, Romero was an outsider from a working-class Puerto Rican family. And he is openly gay. Despite support from outgoing executive director Ira Glasser, Romero was eyed with suspicion by some of the Old Guard. The kid seemed too soft, not ready for the hurly burly of the national office.
One week after Romero arrived, hijacked jetliners slammed into the World Trade Center, the Pentagon, and a field in Pennsylvania, killing some 3,000 people. The Bush administration quickly sealed the nation's borders. Armed troops patrolled the streets. The president announced that America was in a war on terror, and he invoked executive war powers to craft a coordinated worldwide response.
With ash still in the air at the national office, the ACLU's board could see that the new kid's job had just gotten a lot harder. How Romero reacted in the weeks ahead would define not only the organization but also the future of civil liberties in the United States.
Romero had come a long way to head the ACLU — socially if not geographically. Born in the Bronx in 1965, he was raised in the Randle Avenue Castle Hill projects during the height of the urban crisis in the 1970s. At the time, New York was "Fear City." Unemployment, budget cuts in the face of the city's near-bankruptcy, violence, and arson turned the South Bronx into a hellhole. It was so out of control that sports announcer Howard Cosell reportedly interrupted himself during a broadcast of the 1977 World Series to declare, "There it is, ladies and gentlemen; the Bronx is burning."
"It was an awful place," Romero says as we sip coffee at his conference table. "Often there was no heat, the elevators didn't work. There was crime, kids experimenting with drugs. I don't have many fond memories of the projects. Except for the family life inside them." He pauses and adds: "Sonia Sotomayor was raised not far away. So there must have been something in the lead paint."
Romero's father, Demetrio "Mecho" Romero, had completed only a third-grade education. His mother, Coralie, never finished high school. A photo of Mecho hangs behind Romero's desk; in it, his dad is sitting on a piano, drinking a glass of scotch, and smoking a cigarette. For 39 years Mecho worked at the Warwick New York Hotel, a fancy, old-school Midtown establishment. It was from his father that Anthony received his first lesson in the necessity of fighting for one's rights.
"My father applied to be a waiter and was told his English wasn't good enough," Romero says. "He was a little bit frustrated. The other waiters spoke English as bad as his. There was a Greek guy, and some Eastern Europeans. But they were white. So my father went to the union, and he won. He became a waiter, and his pay went up. After that, our lives changed. Everything got better."
The Romeros — grandmother, father, mother, sister, and Anthony — moved to a two-bedroom apartment in Passaic County, New Jersey. Anthony slept on the couch and attended the local high school. "My mom got a new living room set, my dad got a car — a 1968 Pontiac Tempest. Beautiful car," says Romero, his Bronx accent thickening slightly. "And I got an eight-track. Life was good."
Romero excelled in high school and soon was sorting through recruitment letters from the best universities. He says he chose Princeton because it was located out in the country. "It seemed the furthest away from the South Bronx. No way you could have got me to Columbia."
Princeton brought new lessons about how America works. The class privileges of many students shocked Romero. "I had no idea people paid to go to high school," he says. "Where I was raised, it was public high or parochial. Now people asked, 'Where'd you prep?' "
During vacations he worked with his father at the Warwick.
After Princeton, Romero decamped to Stanford Law School. Now his summers were occupied by internships. He worked on human rights cases in Mexico City, refugee and immigration cases in San Francisco, and finally assisted anthropologist Myrna Mack Chang in Guatemala City. For two weeks in the summer of 1990 Romero traveled with Mack Chang, researching government massacres of indigenous villages starting in the 1960s. Shortly after Romero left she was murdered in front of her office, stabbed 27 times by members of a death squad.
"Because of that, I never really had much tolerance for the complaining we sometimes do," Romero says. "When public interest lawyers talk about the long hours and low pay, I remind them that in other countries people who do our sort of work risk their lives."
His final internship, a semester of his third year of law school, was at Harlem Legal Services helping low-income tenants fight evictions. "I loved it," Romero says. "We went to court every day. With every case I kept someone from being homeless, by any means necessary. That wasn't abstract."
From Manhattan's grimy housing courts he went first to the Rockefeller Foundation, then to the Ford Foundation's magnificent glass box near United Nations headquarters. During his nine years at the Ford Foundation he became a human rights program officer, and later a director. In 2001 Romero was recruited by a search firm to replace Glasser, who had been the ACLU's executive director since 1978.
It's worth recalling the Bush administration's rapid response to the 9/11 terrorist attacks. First came the massive USA Patriot Act of 2001, passed by Congress and signed into law just six weeks after the fact. The bill made a number of changes to US law, amending the Foreign Intelligence Surveillance Act of 1978 (FISA), the Electronic Communications Privacy Act of 1986, the Money Laundering Control Act of 1986, the Bank Secrecy Act, and the Immigration and Nationality Act. Among other things, it authorized "sneak and peek" searches of homes and businesses by law enforcement; expanded access to telephone, email, library, medical, and financial records; and allowed for the indefinite detention of immigrants. But the country was so gripped by fear that the Senate passed the bill with just one dissenting vote — by Wisconsin's Senator Russ Feingold. In the House, Rep. Barbara Lee of Oakland was one of the few to dare speak against it.
At the same time, the DOJ began processing suspected domestic terrorists. Attorney General John Ashcroft periodically announced the total number of prisoners — by November 2001, the government had detained 1,147 men, mostly Arabs and South Asians. The government reported that it sought "voluntary interviews" with a further 19,000 individuals. The next month, the DOJ's Office of Legal Counsel advised the White House that the US naval base at Guantanamo Bay, Cuba, was outside the jurisdiction of both countries. It was, the Justice Department contended, a place where habeas corpus did not apply.
Hooded and shackled detainees from the battlefields of Afghanistan soon began to arrive at Guantanamo Bay. Later would come revelations of extraordinary renditions, in which the CIA kidnapped and oversaw the torture of foreign nationals. The war on terror was running at full tilt.
And at the ACLU? In many ways the organization was disoriented and unprepared. It didn't even have a formal project on national security law. Beginning in the 1970s the national office formed a cluster of attorneys and staff to address the intersection of American foreign policy, human rights, and domestic civil liberties. But that unit was spun off into a separate organization, the Center for National Security Studies. During the late 1980s and 1990s the ACLU was heavily focused on domestic civil liberties such as free speech, voting rights, abortion rights, the war on drugs, and prison conditions.
When he arrived, Romero says, "I didn't know the national security issues. I didn't even know what the Foreign Intelligence Surveillance Act was." But he quickly got up to speed, rallied his stunned and somewhat frightened staff, and mounted a counterattack.
The first targets in the sites of the national office were provisions of the USA Patriot Act and Attorney General Ashcroft's roundup and detention of immigrants. Guantanamo, extraordinary rendition, and torture were, at first, either too hot or too undocumented to handle. And in some instances, important people within the ACLU were intimidated.
"I had people on my board and some big donors say, 'Guantanamo isn't about American civil liberties. These people aren't citizens, and they're not in the US' " Romero recalls. "A few even said, 'These are the worst of the worst. My funders, my board, will never support this.' "
Romero launched the National Security Project, reassigning people from other practice areas and providing funds as they became available. In the process the national office trained a group of aggressive and creative young litigators who worked closely with the regional affiliates and other civil liberties groups, including the Center for Constitutional Rights (CCR) and the Brennan Center for Justice in New York, and the Electronic Frontier Foundation in San Francisco.
The National Security Project has a flexible structure. Sometimes it assists with lawsuits brought by the affiliates; other times it files cases as lead counsel. Project lawyers coordinate strategy and review briefs with the affiliates by phone or email.
Jameel Jaffer, a Canadian with brooding, movie-star looks and a gentlemanly manner, heads the project. His family ties in the South Asian diaspora gave him special insight into the anti-Muslim xenophobia that swept the nation after 9/11. "During Ashcroft's early immigration roundups, I'd interview detainees getting deported on technicalities, and I'm thinking, 'These guys remind me of my uncle,' " Jaffer says.
Other members of the group included Amrit Singh, the highly educated daughter of India's prime minister who worked at the ACLU's Immigrants' Rights Project; California lawyer Ben Wizner; and Steven Watt, a Brit with the ACLU's Human Rights Program who previously did work in Africa and the Solomon Islands.
By filing FOIA lawsuits, this crew of young Turks extracted more than 100,000 pages of government documents — a virtual secret history of the Bush administration's war on terror. To date the documents include: the DOJ's Office of Legal Counsel memos authorizing the CIA to use "enhanced interrogation"; proof of abuse and, in several cases, details about the deaths of detainees in Afghanistan, Iraq, and Guantanamo Bay; proof that psychologists participated in abusive interrogations; and evidence that officials covered up many of the abuses.
In an interview last year, Wizner condemned the Obama administration's reversal on revealing CIA photographs of detainee abuse that occurred prior to his taking office. "The president said that these were 'rare and isolated instances' and that, where appropriate, the perpetrators had been punished," Wizner said. "Both of those statements are untrue. We know that the abuses that were documented at Abu Ghraib were routine — not an aberration. ... And we know that the highest-level official to face prosecution was a lieutenant colonel, even though the abusive interrogation tactics were approved at the highest levels of the Department of Defense and civilian leadership."
The National Security Project also produced a number of groundbreaking lawsuits challenging various strategies of the war on terror. In all of this, Romero provided the institutional backbone. As Jaffer explains, "Never having been a litigator, Anthony tends to go large, see big, and not worry about making bad law or getting tied up in legal precedent. He sees issues such as private contractors making money by facilitating torture, and he wants to stop it."
Romero does admit to making some mistakes during the early years of his tenure. In what is now an infamous internal fight at the national office, a faction of the board exposed in 2004 what it considered a series of ethical violations by Romero. Acrimony exploded when it emerged that he had signed — after advising on the language — a grant acceptance letter to the Ford Foundation in which he agreed the ACLU would "not promote or engage in violence, terrorism, bigotry or the destruction of any state." To dissidents on the board — and even to some of Romero's allies — the pledge smacked of McCarthyism.
When board members Wendy Kaminer and Michael Meyers questioned him about the Ford Foundation letter, Romero revealed that he had agreed to similar language in accepting money from the Combined Federal Campaign (CFC), a program that allows federal employees to make donations from their paychecks to approved nonprofits. The CFC grants required recipients to certify that they do not "knowingly employ" anyone listed on federal antiterrorism watch lists. Ultimately, the ACLU rescinded the pledges, turning down about $2 million from the Ford Foundation and $500,000 in CFC donations, though it still receives some CFC funds.
Romero says he regarded both of the pledge clauses as mere formalities, to be agreed to and then forgotten, so he didn't consult the board. Such high-handed methods are typical at many nonprofits, where executive directors call the shots and boards rubber-stamp their actions. But not at the ACLU. A faction of the board regarded signing off on such language without approval as a cardinal sin. In their eyes, Romero had betrayed the core principles of the organization. Making matters worse, Romero was less than candid about his earlier role in the controversy as the crisis unwound.
Public airing of the ACLU's dirty laundry in the pages of the New York Times set off predictable attempts by Romero's allies to plug internal leaks. In 2005 management proposed, and then withdrew, employee confidentiality rules. The next year an eleven-member board committee attempted to circumscribe "the rights and responsibilities of board members," who under ACLU bylaws are guaranteed the right to freely express their opinions. That effort, too, was quickly set aside when it encountered a stormy response after public disclosure. Efforts by Romero's supporters to quiet dissident board members only fueled the fire. At the height of the controversy, about a half dozen board members either resigned or were voted off by the majority.
In September 2006 the dissidents launched a website called SavetheACLU.org, calling for new leadership and documenting the minutia of the conflict. Glasser — Romero's former champion and mentor — joined efforts to sanction him. "I believe the soul of the organization and the integrity of its long-term mission is at stake, and that is no small matter," he said in a public statement. "I grieve over the loss of the ACLU's candor and its commitment to honesty and its growing intolerance for dissent and free speech within its own ranks."
Within weeks Romero's supporters responded with a website of their own, VoicesfortheACLU.org. Then last year Kaminer, a Boston-based lawyer and writer, published Worst Instincts: Cowardice, Conformity, and the ACLU (Boston: Beacon Press, 2009), an assault on Romero's ethics as executive director. "Internal governance debates and internal oversight had been deeply, perhaps irrevocably, compromised, and the ACLU's post-9/11 work — the excuse for ignoring Romero's "mistakes" — was being compromised in turn," Kaminer charged. "ACLU members were being misled."
In an interview, Kaminer describes Romero as a "compulsive and pathological liar." But Sam Walker, a former ACLU board member and emeritus professor of criminal justice at the University of Nebraska at Omaha, denounced her book with an open letter of his own, writing that Worst Instincts is "utterly unbalanced and unfair, and completely misrepresents the work of the ACLU."
By last year the dissidents' website had come down and now, to all but the immediate principals, the internal feud seems spent. Romero, however, emerged chastened. "I was young and inexperienced," he says. "There was enormous pressure along the way. I made mistakes. Dealing with the board was a very big culture shock for me. The harshest thing anyone ever said to me at the genteel Ford Foundation was 'That's interesting.' So, I've learned to stop and consult."
These days Romero has a much better relationship with the board. Over the years there has been considerable turnover — skeptics might say Romero has molded and tamed it, put his stamp on it. He says he regrets not having been more up front and "absolutist" about language he agreed to in the Ford Foundation grant. Still, Romero says, "In the end, judge us by the work we've done."
On that score, even one of Romero's harshest critics acknowledges his achievements. "Although he found an organization in excellent financial health when he arrived," Glasser publicly stated in 2006, "he has raised large additional amounts of money and has substantially increased the ACLU's annual income, its assets and its membership."
In a crass sense, the Bush administration was good for business. ACLU membership grew from less than 300,000 before 9/11 to more than 500,000 today. Annual revenue surged from about $40 million to over $100 million just before the 2008 financial crash. Yet the surge in membership and income begs a question: Was the ACLU's growth driven by Romero's leadership, or by a broad-based rejection of the Bush administration's national security policies?
Former board member Walker is adamant that Romero himself was critical to the ACLU's rapid turnaround. "Check out what he has done with the affiliates," says Walker, who has written one of the definitive histories of the ACLU. Through a program called the Strategic Affiliate Initiative, Walker says, Romero put substantial new funds into the ACLU's local chapters. Since 2006, for instance, the Florida ACLU has received almost $2 million; funding for the Mississippi ACLU has allowed it to hire its first legal director and ten full-time staff members.
Affiliates have long been the vehicles through which the ACLU obtains most of its legal clients. (California has three chapters: ACLU of Northern California; ACLU of Southern California; and ACLU of San Diego and Imperial Counties.) The affiliates have the political relationships that provide leverage in passing legislation. And they provide the means for local organizing. So in addition to Florida and Mississippi, Romero bolstered the budgets of chapters in Texas, New Mexico, Montana, Michigan, Missouri, and Tennessee, with plans to expand to two others. The presence of electoral swing states on this list is no coincidence; without getting directly involved in elections, the program seeks to influence conservative strongholds often hostile to ACLU positions.
"The ACLU under Romero has done a really bang-up job," says Michael Ratner, board president and former legal director of the Center for Constitutional Rights. CCR was the first civil liberties group to represent Guantanamo Bay detainees; it had to sue the US military just to obtain their names.
Even members of the National Lawyers Guild — the ACLU's much scrappier, left-wing cousin — tend to speak well of Romero's leadership. For decades, according to Walker, the NLG had often criticized the ACLU for its "pious even-handedness" — dating from its policies during the McCarthy era and continuing to the notorious 1977 Skokie case, in which the ACLU defended the right of neo-Nazis to march through a predominantly Jewish suburb of Chicago. Today, however, San Francisco's Ben Rosenfeld, a civil rights lawyer and longtime NLG member, calls the ACLU "diligent and principled in its challenge to the war on terror."
Much of Romero's day-to-day work at the national office is fund-raising, which has gotten much more difficult since the crash of '08. Several of the ACLU's biggest donors were wiped out in Bernie Madoff's Ponzi scheme, and many others are down 30 percent in holdings and scared. "I tell them, this is like Harvard, a permanent institution," Romero says. "We are a fixture of the American political landscape, and we're not going away." Then he adds, "Civil liberties struggles are a marathon, not a sprint."