The ACLU’s Fifth Column?

In the summer of 1977, I was a year out of Columbia College, not yet 23. I taught nursery school in Morningside Heights 25 hours a week and spent another 10 or so working as a part-time staff associate at the ACLU. There I staffed a few policy committees, took minutes for national board meetings, and helped run the ACLU’s Biennial Conferences, which were then a strictly in-house operation, taking place at colleges during the summer break, with delegates doubling up in dormitories.

One day early in the summer, ACLU Executive Director Aryeh Neier asked to see me, which was by itself a fairly intimidating prospect. I’d barely spoken to him in my time at the ACLU, and I was not even sure Neier knew who I was, since I was at the bottom of the organizational chart. The ACLU had recently obtained its FBI files through the Freedom of Information Act, Neier told me, and there was a good deal of sensitive material in them. I can’t remember how much he told me initially, but it had become clear from the initial review of the files conducted by Neier and Jack Novik, an ACLU staff lawyer focusing on privacy, that the FBI kept watch on the ACLU, despite its protestations to the contrary, over more than 50 years.

 

 

That was not a huge surprise, particularly as the abuses of the FBI and the intelligence agencies had become well known through the investigations of President Nixon and the Senate’s Church Committee. But what was a surprise, and deeply troubling, is that it appeared that a number of ACLU leaders, mostly in the McCarthy era of the 1950s, had provided information to the FBI about ACLU activities, particularly in the state affiliates. Given the ACLU’s outspoken opposition to FBI surveillance, the story of its own apparent collusion was likely to be quite explosive.

Neier asked if I would spend some time that summer going through the files and cataloguing all the instances I could find not just of FBI misconduct with respect to the ACLU, but also inappropriate engagement by ACLU officials with the FBI. I was not to tell anyone else what I was doing while carrying out the project. What Neier or anyone else in the ACLU had seen in me that gave them confidence that my very young self would do a good job in this highly sensitive mission I cannot say. But I relished the assignment, particularly the cloak-and-dagger aspect of it.

Neier sent me to Novik to deal with the details, and Novik took me into a back office in the ACLU headquarters, which was in those days at 22 East 40th Street, in the former corporate offices of the Johns Manville Corporation. When I entered the office, as I recall it, almost every inch of floor space was filled with file cabinets and boxes containing the FBI records — almost 50,000 pages — that the government had surrendered. For some weeks that summer, I spent from 8 a.m. to 1 p.m. running a summer day camp for 5-year-olds, then took the subway down to the ACLU and holed up in the back room with the files.

It was quite an education. But first, a little more context.

 

The Early ACLU and the Early FBI

It seems strange now, but for a number of the FBI’s early years, up until the Second World War, the ACLU under Roger Baldwin viewed the agency under J. Edgar Hoover’s direction as a positive force for civil liberties. Hoover, who became head of the bureau in 1924, had strenuously objected to an ACLU report the same year on the FBI’s violations of civil liberties titled “The Nation-Wide Spy System Centering in the Department of Justice,” calling it a “secret police system actively interfering with the civil rights of citizens.”

After Baldwin met with Hoover to hear his objections, Hoover wrote to colleagues that he left in a “particularly friendly state of mind.” For his part, Baldwin reported that “practically all the anti-radical and anti-labor activities of the Bureau had been discontinued.”

By the Second World War, the ACLU had adopted a much more critical stance toward the agency. In 1941, Baldwin reported “considerable fear in liberal circles concerning activities of the FBI in investigating subversive movements.” The next year, Baldwin complained to the FBI that “some of your agents seem to have some notion that the Civil Liberties Union is a subversive organization and that connection with it justifies investigation.” In its 1949 annual report, the ACLU wrote:

 

“The FBI’s functions have been expanded under laws now penalizing opinions and associations, risking for the first time in our history the creation of a secret political police system with its array of informers and undercover agents.”

 

The 1940 Resolution

In the 1920s and 1930s, at a time when these parties were more significant in American political life, many progressive organizations had communist and socialist members.  Norman Thomas, a six-time presidential candidate for the Socialist Party of America, served on the ACLU board for many years, and Elizabeth Gurley Flynn, a prominent communist leader, was on the founding ACLU board, serving until she was expelled by a vote of the board following its contentious adoption, in 1940, of the following resolution:

 

“It is inappropriate for any person to serve on the governing committees of the Union or on its staff, who is a member of any political organization which supports totalitarian dictatorship in any country, or who by his public declarations indicates his support of such a principle… within this category we include organizations in the United States supporting the totalitarian governments of the Soviet Union … (such as the Communist Party).”

 

The 1940 Resolution was always opposed by a significant minority, and the ACLU’s founding board chair, Rev. Harry Ward, resigned over it after 20 years of service, writing:

In thus penalizing opinions, the Union is doing in its own sphere what it has always opposed the government for doing in law or administration. The essence of civil liberties is opposition to all attempts to enforce political orthodoxy … [yet] … the majority of the Board and of the National Committee, acting under the pressure of wartime public opinion, tells the minority to conform to its views or get out.

The resolution was not repealed by the ACLU board until 1967.

Read the entire ACLU 100 History Series

 

 

The ACLU in 1977

It’s worth setting the FBI files matter in the context of what else was going on in the ACLU at the time — which was a great deal.

Neier had almost completed seven years as executive director and had an increasingly contentious relationship with the ACLU board and some senior staff members. Just the year before, the longtime national legal director was replaced, and the Washington office director, Charles Morgan, Jr., had resigned after Neier confronted him about appearing to take a position in the 1976 presidential race in violation of ACLU nonpartisanship policy. Morgan, who had a strong following in the organization, ran successfully for an at-large seat on the national board, and was also elected to the executive committee.

The national board was also engaged in those days in a review of some of its highly contested actions from the 1940s. In 1976, it posthumously reinstated Elizabeth Gurley Flynn, expelled from the national board 36 years earlier, in the first and only application of the 1940 Resolution. Barely a month before the ACLU’s disclosure of what it found in the FBI files, the Supreme Court let stand an order of the Illinois courts to allow a neo-Nazi group, represented by the ACLU, to march in Skokie, Illinois. This principled stand cost the ACLU thousands of members and contributed to a financial crisis later that year that resulted in significant staff layoffs — including my own.

In this climate, where longstanding right-left tensions in the ACLU were fairly raw, there would be enormous internal scrutiny of how the files were handled. As one unnamed ACLU official told The New York Times, “this could be disastrous for us in terms of public trust.”

 

 

What We Found

I spent many weeks of the summer dog-earing pages in the FBI files and making lists of questionable actions. I shared what I found with Neier and Novik, who went to work and produced a report that was released to the ACLU board and affiliates and shared with a reporter at The New York Times.

During that time, I managed to take a vacation with my girlfriend to Long Beach Island, New Jersey. In those pre-internet days, in a house without a TV or a radio, information was scarce. To get a newspaper on the island, you had to get on a bike and ride to the general store. I’ll never forget picking up the Times there one August morning, and there on the front page, for the first time in my life, was a story I’d had something to do with: “FBI Files Disclose ‘50’s Tie to ACLU.”

The ACLU board soon appointed a commission to study the matter further and make policy recommendations for the future. Shepard Lee, a national board member and car dealer from Maine, chaired it, and other members included former U.S. Attorney General Ramsey Clark and New York City judge Nanette Dembitz. I helped Novik staff the commission.

Despite years of public denials that it was investigating the ACLU’s activities, the commission found that the FBI had in fact “systematically and continuously used, encouraged and maintained what was in effect a national network of informants, who regularly provided the FBI with information, including internal ACLU documents, files and correspondence,” which reflected “substantial FBI hostility to the content of political views held by various individuals associated with the ACLU, and by the ACLU itself.” This included “FBI surveillance of both open and closed ACLU meetings, electronic surveillance and surreptitious entries of ACLU premises or the homes and offices of those associated with the ACLU.”

The commissions also found that five men in the leadership of the ACLU in that period were found to have communicated with the FBI, sharing internal documents and minutes, and asking for information about whether various individuals active in state affiliates had communist affiliations. For the most part, as far as the ACLU’s current leaders could determine by a review of ACLU internal materials and minutes and by talking with still-surviving board members from that period, these dealings had been unknown to the board.

In their public statement about the FBI files, Neier and Board Chair Norman Dorsen stated plainly: “Whatever their motive, such contacts with the FBI were wrong, inexcusable and destructive of civil liberties principles. These incidents took place in a different era and are contrary to the way the ACLU operates today.”

 

 

Who Were These Guys, and What Did They Do?

Morris Ernst, an ACLU board member and general counsel, was the son of a Jewish immigrant peddler and shopkeeper from Eastern Europe who settled in Alabama. The family made its way to New York when Morris was two, and he was eventually educated at Horace Mann School, Williams College, and New York Law School. Best known for his successful defense of James Joyce’s “Ulysses” against obscenity charges, Ernst was a confidant of New York Mayor Fiorello LaGuardia and President Franklin Roosevelt.  His wide circle of friends included Groucho Marx, Justice Louis Brandeis, and Heywood Broun — and J. Edgar Hoover.

Ernst was seen as so close to Hoover that ACLU officials would sometimes refute accusations that the ACLU was communist by pointing out that Hoover’s “personal attorney” was an ACLU officer — though the files revealed that Hoover complained that Ernst overstated their closeness.

 

 

Over the years, according to the FBI files, Ernst shared with the FBI various internal ACLU memoranda along with his own opinions, such as a letter he wrote to the ACLU urging it to “stop sniping” at the FBI as well as another supporting Hoover’s position against a national police force. He also shared discussions in ACLU board meetings and gave advance notice of certain ACLU actions, such as a complaint about the firing of five Colorado teachers accused of having subversive backgrounds. But at times, it seems, it went the other way, as when the FBI complained to Ernst that he broke their confidence by letting the ACLU know about FBI policy to share data with state governors for security investigations.

Ernst exchanged over 300 letters with Hoover over 25 years, most of which were not in the ACLU files, as they did not always pertain to his work there. Writing in The Nation in 2007, Harrison Salisbury declared:

“After reading the letters one is overcome with awe at the extraordinary recuperative powers of American society which enabled it to emerge from the sickness of McCarthyism despite the efforts of a man like Hoover, who mouthed cliches of freedom while slipping documents into the hands of its enemies, and the equivocal role of Ernst, a champion of civil liberties who had, in a rather complicated way, succumbed to the conviction that Hoover with his F.B.I. stood as a bastion against the threat of Soviet communism.”

It’s worth noting that in Elizabeth Gurley Flynn’s May 1940 trial by the ACLU board — where she was expelled by a single vote, with a tie broken by the new board chair, Rev. John Haynes Holmes — her chief prosecutor was Morris Ernst. A number of people at the time suggested that both the 1940 Resolution and Flynn’s expulsion were the result of a deal that Ernst and his co-general counsel, Arthur Garfield Hays, had struck the year earlier with House Un-American Activities Committee Chair Martin Dies. After they had cocktails with Dies at the Hays-Adams House in Washington, he suddenly shifted direction and declared “there was not any evidence that the American Civil Liberties Union was a communist organization.”

Another ACLU leader implicated in the files was Herbert Monte Levy. He was the sole ACLU staff lawyer until 1957, and he had a long legal career after that as an appellate expert and a First Amendment advocate. There was no evidence that Levy disclosed to the FBI any ACLU leader’s political opinions or associations, but he did check with the agency about charges that nine members of the board of the Maryland ACLU had communist ties. The FBI told him they had no such information.

The FBI’s account of this, according to the files, cited Levy as telling them that if they were communists, the ACLU wanted “very promptly to expel this affiliate.” Levy told the ACLU commission he couldn’t have said this. He said at the time he believed his job was to protect the ACLU from false charges, and he also recalled that when he worked for the ACLU in the 1950s he saw Hoover as a defender of civil liberties.

The worst offender, however, was Irving Ferman, who headed the ACLU’s Washington office in the 1950s. He sent the FBI minutes of meetings from at least five ACLU affiliates, almost always accompanied by ingratiating notes:

“For Your permanent possession … a very revealing press release”

“Nothing reflects the problem of the ACLU better than the attached letter…the intemperateness to me is a dead giveaway of a point of view…”

“This is another indication of how much this gang really believes in free speech.  I will enjoy knocking heads together one of these days.”

“There is no question in my mind but that this is a product of Communist coercion.”

In a memo to the ACLU board, National Advisory Council, and affiliates, Aryeh Neier summarized Ferman’s dual role:

“While Ferman was telling the Board that a Fund for the Republic study would provide the basis for criticism of a loyalty-security program he was apparently telling the FBI about his concern with the left wing guidance of the study. While Ferman was telling the ACLU Board that a speech by Senator Harry Cain was ‘magnificent,’ he was telling the FBI that there was something fishy about the auspices of the speech. While Ferman was telling the ACLU Board about the progress of the campaign against the House Un-American Activities Committee, he was telling the FBI that the campaign against HUAC was a communist plot.”

When asked for a response to the material in the FBI files, Ferman rejected any characterization of himself as an “informer” and said his activities had been motivated by an ethics of “hard choice.” Ferman also wrote: “The policy formulated by the leadership of the Union, particularly Patrick Murphy Malin and (board chair) Ernest Angell … at that time was to maintain especially close relations with the FBI, and other governmental agencies.”

There were also a few references in the FBI files to Neier’s two immediate predecessors as ACLU executive director, Patrick Murphy Malin and John (“Jack”) de J. Pemberton, Jr. Malin, who disappointed his family’s plan for him to succeed his father as a bank president in Missouri, came to the ACLU in 1950, after Roger Baldwin had served as executive director for 30 years, by way of the YMCA and the economics faculty of Swarthmore College. When he left 12 years later, he assumed the presidency of Robert College (now Bogazici University) in Istanbul, where he died two years later at the age of 61.

Pemberton — whose father was a surgeon at the Mayo Clinic in Rochester, New York, where he was born — presided over considerable growth in the ACLU, from 28 to 47 affiliates. A registered Republican, which wasn’t uncommon at the ACLU at the time, he would go on to serve with the Equal Employment Opportunity Commission and teach at the University of San Francisco.

 

 

Malin was aware of Levy’s work to clear nine members of the ACLU of Maryland Board, writing in a memo to colleagues: “It seemed clear that it did the individual and the ACLU both quite a bit of good.” One memo in the FBI file reports on a meeting Malin had with an FBI official, who later wrote that Malin reported “problems with his 23 affiliates,” particularly in Detroit, Los Angeles, Denver and Seattle, where he was “trying to keep Communists off the Board of Directors and asked that we keep in mind alerting him if anything came up.”

But as Neier noted in his report on the matter, “since Malin died in 1964 we cannot have his own version of the ACLU-FBI relationship, and therefore, must read the unilateral FBI record with skepticism.”

 

 

There was only one reported contact with Malin’s successor, Pemberton. According to the FBI’s files, Pemberton phoned FBI official Louis Sullivan worried that a Georgia man “was trying to move in on the ACLU chapter there and he (Pemberton) is suspicious of this man, believing him to be connected with communism.” Pemberton then asked Sullivan for any public source information he could use to address the matter.

In 1977, when ACLU Legal Director Bruce Ennis asked Pemberton about the matter, he was told that an officer of the Georgia ACLU “had information that one of his colleagues on the affiliate board should be disqualified because of the 1940 Resolution” and asked his assistance. According to Pemberton, “the information he got from Sullivan allowed him to tell the Georgia ACLU officer that the evidence he had found did not support disqualification.”

 

 

Some Personal Lessons

What did I learn from this extraordinary experience at the outset of what is now a more than 40-year career in human rights, social justice, and philanthropy?

A few things.

I learned to approach secret police files with a skeptical eye. FBI leaders and field agents, writing memos to one another to report on conversations with ACLU officials, often exaggerated the accounts to make themselves look good. And, as noted above, the ACLU, in coming to terms with its own officers’ lapses, never relied solely on the accounts of agents themselves.

ACLU leaders like Ferman cultivated an “entre nous” air with their FBI counterparts, giving the impression that they shared concerns about left-wingers in the ACLU’s ranks. Most likely they did, and indeed it is galling to read many of Ferman’s memos. But it’s possible that at least at times he saw himself much as an undercover cop or spy might, pretending sympathy in order to gain confidence and protect the ACLU — as Ferman claimed in an exchange of letters with Aryeh Neier in The Civil Liberties Review — from attacks by the House Un-American Activities Committee and the American Legion.

My 1977 experience was invaluable about a dozen years later while working at Human Rights Watch. I was asked to address a gathering of the Czech Helsinki Committee in Prague, not long after the fall of the Berlin wall, when the country’s new leaders were grappling with “lustration” — a process of stripping citizens of unearned privileges gained by Communist Party membership, but immensely complicated by the unreliability of secret police files. I learned early on that transparency and an honest coming to terms with the past are essential to an organization’s integrity — and to a person’s, as well.

Despite what I characterized as a tense environment in the ACLU in the late 1970s, the organization under Neier’s and Dorsen’s leadership was extremely forthright about its past lapses, and that, along with their clear statements of condemnation and an exhaustive process of reckoning, helped the ACLU ride out what could otherwise have been an existential crisis. That most people 40 years after have no idea of the incidents I’m describing is itself testimony to how well the matter was handled.

I also learned, by being trusted myself, that it’s important to trust young people with responsibility. I was barely out of college when I was asked to take on this project. Two years later, I was assistant director of the New York Civil Liberties Union, then the ACLU’s largest affiliate, and before I was 30 I had been named to lead the Texas ACLU.  Indeed, three of the ACLU’s executive directors, spanning 57 of its almost 100 years, were 36 or younger when they took the reins. I was given great opportunities as a very young man, and I tried to make the best of them. In all the years since I’ve tried to pay that forward with the generations behind me.

A final word.

 

 

Because I got my start in the ACLU at 18, I had the privilege of knowing some people in the founding generation, like Roger Baldwin, and was close to a number of leaders who were on the staff and board in the 1940s and 1950s on both sides of the argument about communism. Long after the McCarthy era had passed, some insisted to me that those who cooperated with the FBI not only believed they were following organizational policy, while the 1940 Resolution was in force, but that what was at stake was the survival of the ACLU itself. If the organization had ended up on the attorney general’s Subversive Organization List, for instance, would the ACLU be celebrating its 100th anniversary next year?

I knew others, like my good friend Frank Wilkinson — the target of decades of FBI surveillance, including knowledge of death threats against him that they failed to warn him about — who saw that time with a deep moral clarity. He believed it was wrong, always wrong, to violate civil liberties principles for some alleged greater good. Indeed, not just hindsight is involved here: There were plenty of people around at the time who felt that way, as Harry Ward’s resignation letter demonstrates.

During my time going through the FBI files, I thought — partly because I felt soiled by my contact with Ferman’s notes and letters to the FBI, some of which are reproduced here — that what he and a few others did was deeply wrong and unjustified by any excuses or rationalizations. I like to think if I had been on the ACLU staff and board at the time of the actions disclosed I would never have behaved as he, Levy, or Ernst did.

But of course I don’t know that for certain, and having watched those who lived through that period wrestle with these questions, I try to leaven my judgments with as much understanding and compassion as I can muster.

 

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