A Conversation with the ACLU Director.

Question: How has Obama changed Guantanamo Bay policies?

Anthony Romero: Remarkably little has changed since President Obama took office when it comes to Guantanamo. We were elated when his first three executive orders in the first 24-hours of his presidency said they would shut down Guantanamo within a year, that he would ban torture unequivocally, and he would shut down the secret prisons which are being run by the CIA.

We thought we were off to a pretty good start; it seemed like civil liberties trifecta to us. But frankly, in the last six or seven months that we’ve seen since those first executive orders, there’s been very little substantive difference in the way to which the policies are executed, and even the maneuvering of the Obama administration. They have very much backtracked on those initial promises on shutting down the military commissions unequivocally.

We fear now that we’re in a very different political environment, where people want to believe and have faith in this president. He came in with enormous popularity, with an enormous mandate to get us back on track. He still commands enormous popularity in the public opinion polls, and yet when you look at the substantive policies of this president, and you compare them to those of George Bush, they’re not all that different. The rhetoric certainly much different, the values that he speaks of are newly refined, but the substantive policy outcomes are not that different, and that perhaps is what concerns us the most: that when people have finally let down their guard, and believed that we’re back on track to restore civil liberties, that in fact that we have a new administration that’s now mumbling when it comes to the initial promises they made.

Question: What is our nation’s current policy on torture?

Anthony Romero: Well the president has banned torture under his administration, and he has rejected the enhanced interrogation techniques that are now infamous in the office of legal council memos that the ACLU secured through our litigation under the Freedom of Information Act. So we’re back now to where we were pre-9/11. We don’t torture, we don’t abuse. We follow the Geneva Conventions.

The fact is that there’s still a lot of gray area in what the president has said in “We won’t use very aggressive torture techniques.” We’re not entirely sure about these enhanced interrogation techniques—where he has drawn the line? We don’t fully know. It’s clear to us in some of the discussions we’ve had with the administration that some of these rules regarding the Guantanamo military commissions, that, while they’ve banned to use of evidence gleaned from torture, it’s certainly possible—in fact we expect—they use interrogation techniques or use evidence gleaned from coerced interrogation techniques.

That could be fall a little bit below the torture line. But still would be illegal in the pre-9/11 context. We don’t fully know what’s going on at some other sites. We were saying we’re going to close Guantanamo, but we’re reading even in these recent newspapers about the wanton mess at Bagram. We read about the Chinese not having access to lawyers, awful conditions, refusing to come out of their cells as a way to protest their inhumane treatment. And whenever you have a prison or detention center that is not accessible to the members of the press, or the public advocates like us at the ACLU, that’s a recipe for abuse; what can happen behind close-doors that can’t be penetrated can in fact bleed to the type of abusive techniques that we saw under the Bush administration.

Question: Should we investigate those who may have authorized torture previously?

Anthony Romero: What I think the president fails to understand is in the fact that he always refers to himself as Commander in Chief of the nation. It is that a concern for civil liberties and human rights on the one hand won’t necessarily be at odds with the concern of making sure he enforces the nation’s security as Commander in Chief

We have a president now who is wrongheaded in his unwillingness to look back. The president says that he wishes to look forward, that this is not the time for recriminations; this is not the time for finger pointing, this is not a time for parties and squabbling, but frankly, unless you look back and unless you prosecute the individuals who authorized the torture and abuse, you create a moral hazard in our government.

It means that you can break the law and can get away with it, and so individuals down the chain of command in the Department of Defense, in the CIA who broke the law under President Bush, who are not being prosecuted for what they did and what they knew would happen—there’s impunity in the ranks of the government, and unless you are really willing to prosecute individuals of the highest levels of our government who authorize and enable torture and abuse to happen in our name, you’re going to allow that impudence to exist, and you’re never going to be able to get us back to a place where torture and abuse of detainees is just anathema. You will always have a question in people’s, soldiers, or CIA officer’s minds: “Maybe I can do it; maybe I can get away with it. Maybe this is the best way to protect America.”

Unless you prosecute the individuals who authorized it at the highest levels, you’re going to have that doubt. You’ll going to have the remains of that Bush policy creep in to the Obama administration.

Question: Should prosecution go all the way to Dick Cheney?

Anthony Romero: Absolutely, if not higher; certainly Cheney, certainly Addington, certainly Hugh and Gonzales. We have Dick Cheney still say that we didn’t torture people on his watch; well, that’s obviously not the case. We have the documents to show it from our Freedom of Information Act litigation. There are thousands of photos that Obama refuses to release, that would show, in very explicit, troubling detail what exactly torture looks like. The idea of that we’re still having a debate about whether or not we did or didn’t torture when the facts are clear and unequivocal—to what level could you have cruel, unusual and degrading treatment that doesn’t rise to the level of torture?

Those are troubling questions that are still roiling under the Obama administration, and because we haven’t had a clear, decisive action to break with the past and to prosecute those who broke the law, that doubt and that ambiguity is going to continue.

Question: Given the pressing concerns presented by the recession, why is torture investigation important now?

Anthony Romero: We hear those arguments. We hear these arguments directly from he president himself either in closed-door meetings or in his speeches. The concern that America can’t afford spend time with some of the most fundamental values of the American Republic is really giving us too short shrift.

No one argues that the president has been dealt a very difficult hand. The two wars raging, the health care reform debate which seems to be going off track, the economy collapsing. Perfectly, America is a lot more than just the the financial assets of our nation. America’s greatest assets also have to do with our values. We would not be arguing with that fact if Dick Cheney and Addington and others had gone into Fort Knox, and robbed America of a billion dollars—we would not be talking about whether or not they ought to be prosecuted for those crimes, and yet when they authorized torture and abuse of the highest levels, the fact that we’re willing to look the other way and say; “Well, those assets really don’t count as much as the financial assets,” that’s just not true.

America was founded both on the concern for economic prosperity and taxation without representation and concerns about the American colonies fighting the British crown, but they were also fighting tyranny, they were fighting for justice, they were fighting for due process. The founding documents had much more to do with certain core aspirations and values that we cannot afford to put on the backburner and say, “We don’t have the time or the energy or the luxury to deal with these issues.” Those are as much about our patrimony as anything that we own or might own or might sell, or might transact, or might import, or export. What we have best is our core commitment to those values, which have been severely undercut in the last eight years.

Question: What should the United States do with Guantanamo inmates if the prison is closed?

Anthony Romero: We move them Stateside. Our states and our prisons are perfectly equipped to handle terrorism suspects. We have a number of some very high-level terrorism suspects who are being convicted, who are being held in our nation’s prisons. You would make sure to put the best prosecutors working on those cases. You throw all the evidence you can amass from the FBI, the CIA, the Department of Defense, the Department of State. You put them in front of a legitimate federal court that’s tried and true;, that’s been used in hundreds of cases to prosecute terrorism cases over the last fifteen to twenty years.

The President is now trying to tinker with the Guantanamo Military Commission. If he ships the prisoners on shore, he now wants to “ameliorate,” in their words, some of the worst problems of the Military Commissions Act. The President made it rather clear when he was Candidate Obama—not President Obama—that he would reject the Military Commissions act. Well, tinkering at the edges of the Military Commissions Act doesn’t sound like rejecting the Military Commissions Act. You need to just ship them stateside, prosecute them, throw the book at them, and if you succeed, detain them for whatever period of time is properly determined by a federal judge. If you don’t succeed in a conviction, they have to be released. That’s the legal system.

Question: Where do we rank in the spectrum of industrialized nations in terms of civil liberties we afford our citizens?

Anthony Romero: America has a remarkable history of both protecting civil liberties and trampling on them. We have to understand that America was at the forefront of pushing through a concern for the human rights in the aftermath of World War II. It was the atrocities that we saw with the Germans, Italians and Japanese that made us codify the universal declaration of human rights: a uniform code for the protection of human rights. That was America’s patrimony as much as anything else. That was Eleanor Roosevelt and FDR who did all that, and frankly it served as a model for many of the world’s leading industrial countries.

What’s happened in the last eight years has been that, we set these rules and norms up we’ve espoused them, we’ve championed them for decades—and then we broke them. We went back on those commitments and those promises. We thought that the rules didn’t have to apply to us: that the Chinese shouldn’t torture but we can; that the Cubans shouldn’t hold people indefinitely without charge or trial, but we can; that we can hide things from the public and the press, Congress and America in a way that we would denounce any country, any government from doing that to their citizens.

So what we’ve seen is just the fact that there has been an enormous amount of hypocrisy, and double standards: an America that always championed these issues for other countries and said that these were the core issues for us in our nation. Now the rules are different for us, and unless we take that double standard head on, that hypocrisy that we get criticized about overseas will certainly continue.

Question: How has the U.S. failed in terms of protecting freedom of the press?

Anthony Romero: We still see that this administration is very closed when it comes to matters of national security. We think it’s a huge mistake that the president decided to try to shut down the release of more than two thousand photographs that show torture and abuse in Afghanistan in Iraq at Guantanamo. This is a lawsuit we filed in 2003 asking the government for an any old documents that talked about torture abuse happening on detainees held by the American government. We were fishing, then the photographs of Abu Ghraib come to life in 2004 and this law suit grew into enormous significance: we began to pull out documents from the FBI, from the Department of Defense, from the CIA, and then we argued over a number of years about whether or not the word “document” includes the photographs taken or held by the U.S. government and, after winning at two different courts and having the government appeal for both of our wins of those levels, the whole justice department said, “O.K., we’ll give up the photographs; they are documents, they are relevant to your Freedom of Information Act lawsuit.” Then, the President backtracks because he’s worried about the backlash that will be unleashed from the photographs, and certainly no one wants to see backlash.

We don’t want to see mayhem or destruction, we don’t want to see our soldiers put into harms way, but frankly what’s going to put our soldiers in harms way is not the release of the photos—it’s the fact that we’ve tortured and abused individuals and we’ve captured those very policies on photographs and videos. The only way you’re going to create the political will to ensure that we’ll never do it again, is to make sure we look at it straight in the face. We have to understand what really went on to create the political will to make sure that we prosecute those who allow that to happen, and to make sure we put in place the sufficient deterrence that, going forward, no one else will break the law like the way we saw on the Bush years.

Question: What are the rights issues with the country’s criminal justice system?

Anthony Romero: Well, if you’re poor or you’re a minority, then criminal justice doesn’t work for you. The deck of cards is stacked against you, and it’s clear that the criminal justice system treats people who have resources or who are not minorities very differently. You can see that already in some of the efforts we’ve begun to address, and here you have to give the Obama administration a great deal of credit in helping erase the differences between crack and powdered cocaine. Where crack cocaine was dealt with more aggressively than powdered cocaine, and that was basically a racial disparity where mostly whites would be able to afford or would use powdered cocaine, and often it was minorities who used crack cocaine.

But when you look at the death penalty and you look at the individuals who receive death sentences, they often have to do with poor lawyers because we have not resourced the criminal justice system or the public defender system well. You deal with the biases of juries, especially in Southern States and places where discrimination is still rampant. You deal with politicians and some district attorneys and state attorney generals who are using race and crime as a way to run for office and to curry the favor of conservative and white voters, and so what we have to understand that the criminal justice system is really stacked against people who are poor or low income and we have to resource that system in a way that’s much more significant.

We still have people who are on death row whose lawyers were asleep during their trials, whose lawyers didn’t do discovery in cases of life or death, who had never done a capital defense case, who didn’t have access to the full litigation and investigative experts that you need in a death penalty case. Now, a lot of places are still putting people to death by winging it; people who are on death row are perhaps even our innocent—that’s one of the most remarkable things about the development with DNA evidence.

It’s shown clearly now that there are people who have been on death row who now, through DNA evidence, we can show were fully innocent: more than a hundred or so individuals over the period of the last several years. That should make us think twice about the infallibility of putting someone to death. That should make us think twice about the fallibility of our criminal justice system. That should make us have the political will just to step back from it and say, “Look, this system doesn’t work. We need to abolish the death penalty.”

No matter how great the system we construct, it will be fallible, and taking someone’s life, which is the most irreversible error that you can ever commit, is just too great a mistake to run the risk that you’re going to put one innocent person to death. That’s why we’ve always believed that death penalty should be utterly and completely abolished. No matter what the sentence or circumstance is, and no matter what the crime, because it can never work and it’s certainly not working well when it comes to low income and minority people.

Question: What is a country that is more attentive to civil liberties than the U.S.?

Anthony Romero: Well, if you look at Canada for instance, you have increasing protection for civil liberties and civil rights. They enacted something similar to the Patriot Act in the aftermath of the 9/11 attacks, and yet they backed away much more clearly from some of those law enforcement powers. You see some of the nations in Western Europe who have been absolutely shocked at the commission of torture and even been troubled by their own involvement and practices like rendition. Rendition is a polite word for kidnapping people, shipping them off to a country where they will be tortured, and so you have these big debates swirling in places like Italy and Great Britain and elsewhere about how those practices just don’t comport with their own concerns and their own protections for human rights. So America right now is not leading the pack on human rights and or civil liberties.

America’s is really trailing the crowd, and unless we take very definitive steps to restore our leadership role: showing that we can deal with these issues at home, that we’ll prosecute the criminals who broke the law, that we will go back toward tried and true federal court system, that we will have fully open, transparent government, and that we will shed down surveillance techniques that focus on law abiding Americans who’ve done nothing wrong, we’re going to continue to trail the pack.

Question: How has the gay rights movement progressed since Stonewall?

Anthony Romero: We’ve progressed in the gay rights movement, but we haven’t progressed as a result of government polices, and certainly not as a result of leadership on the federal level. I think what’s remarkable is that we’ve made progress despite opposition from the federal government and some of the state governments. I’m 44 years old two weeks ago; when I was growing up I would have thought it impossible for gay people to marry. Now, we have it in many states, and in some of the most remarkable states you can actually be pronounced husband and husband and wife and wife. You can get married in Dubuque, but you can’t get married in Chelsea, or in San Francisco. Frankly, the fact that we made progress in places like that and Connecticut, Massachusetts, New Hampshire—I think that speaks volumes about the power and the dynamism of gay rights community. But we see still that federal government officials mumble when it comes to questions about gay rights, that these are not equal rights of ordinary American citizens, and so the Obama administration submits this brief to defend the Defense of Marriage act, an indefensible piece of law that was signed by president Clinton.

This shows you that Democrats can sometimes not be any better than Republicans in some of the key civil rights and the liberties issues, and here you have the Obama administration that filed this brief, defending the law in some of the most disgusting rhetoric in language. I understand the fact that this department has to defend the laws enacted by Congress, but the way that its on that brief is really offensive to many gay and lesbian people across this country, and the fact that they had such a tin ear—they couldn’t realize that the way they were going to defend this law was going to be in a way that would really infuriate gay and lesbian people across the country. We thought that they had embarked upon a very different time in our Nation’s history.

I do think it’s great that President Obama actually says the words gay and lesbian. I think that it was notable that at the NWICP convention Obama talked about gay people still not having their civil rights, and I think it’s great that he had this ceremony commemorating the 40th anniversary of Stonewall at the White House. But frankly, talk is cheap and there’s only so long that a very eloquent, and very thoughtful, and very charismatic president will be able to get away on talk alone. The policies, outcomes, and decisions of that government have to measure up to the talk that both led him into the White House and still allows him to lead the public in various significant ways.

At a point, we all tune up when people’s actions don’t measure up to their works.

Question: Is there any rationale for, “Don’t ask, don’t tell”?

Anthony Romero: No. I don’t think anyone legitimately can say that “don’t ask, don’t tell” has worked. Even the wife of the author of that terrible policy ran on the campaign saying it was a mistake to do “Don’t ask, don’t tell” in the first place. You created a witch hunt in the military: that you can be gay—you just can’t ask about it, you can’t tell anyone about it. But if you tell someone or someone asks about it then you could still be pushed out of the military. It’s ridiculous: they promised to undo “Don’t ask, don’t tell”, the Obama administration. But they’re saying now that they’ll get to it in their pseudo time.

It’s really quite different if you’re an openly gay or lesbian person serving in the military, putting your life down on the line for our country, and yet your government can discriminate against you. If you lose your job even as you lay down your life for your country, you could still be kicked out from that post or that position.

Frankly, there’s no reason why we ought to wait. It’s not as if we’re going to be able to fix the economy or healthcare, or the environment, or even these wars in the near future. But social change is not a sequential piece, it is not like your college pre-requisites where you take Economics 101 before you go to Economics, you know, 201. These issues all have to be dealt with aggressively, and the idea that we will wait to deal with them just shows that they’re not a huge priority for this administration the way we had hoped and the way that many have voted for them to bring about that change.

I find it remarkable that quite increasingly, the Obama administration is sustaining and weathering attacks not just from civil libertarians about human rights and civil liberties, but from the gay community, the women’s community, young people, and antiwar activists. Those were the base that created the seabed that got him elected, and yet some of the major issues that I think propelled some of the young people to vote for this president are now the ones that we find on the back burner. It’s actually not a very good political agenda. It doesn’t take a lot for a 25-year-old to become disenchanted once again with the political process, and when folks turned out in record numbers and gave record amounts of money it’s because they want to see swift, decisive change—and that has yet not come about.

Question: What can this administration do specifically to advance gay rights?

Anthony Romero: Well certainly by giving the full protection of health benefits to federal government employees, which is not what he’s done, would be an important first step. President Obama is like a CEO of a major corporation, it’s just like as if he were the CEO of Walt Disney or Apple, and if you’re concerned about the health and well-being of your employees, you want to protect them and their families. I think it is remarkable that this president has said that even though as CEO of the government workers of the United States of America, that he won’t provide healthcare benefits for same sex partners if we worked with the federal government. That’s something he can do, that’s something he ought to do. Frankly, if Apple can get around to it or Nike can get around to it, and Walt Disney can get around to it, I think the CEO of the United States of America can get around to that too. He doesn’t need Congress, he could just implement that. That is also another misstep on the gay rights front. You have DOLMA, you have the mumbling on “Don’t ask, Don’t tell”, you have the lack of providing full healthcare benefits for federal government employees. People begin to scratch their heads and wondering why we’re not going to see the type of change that were hoping for, and that’s the type of change that the president can bring about. He can also use the bully pulpit to be very clear around marriage; in fact, the president has said in his books and his public speaking that he struggles with the idea around marriage for lesbian and gay people.

We don’t have the same protection that straight people have. The President is protected by the law—he has two beautiful daughters and a wonderful first lady as his wife—and the law protects the family from discrimination. It protects them in case anything were to go wrong with either one of the parents. Gay people across this country don’t have the benefit of those legal protections, and no matter how much they say that they want to treat us like equal citizens and give us our full rights, the fact is, unless you move, either you implement on those rights, its just rhetoric, it’s just auditory language, and frankly the time has come for bold, decisive leadership—we’ve seen it in states all across this country.

Massachusetts has married gay people now for over a year and some months, and I don’t think marriage is any weaker in Massachusetts that it was three years ago. You’ve seen it in Connecticut. Decisive, clear action from the federal government is essential and necessary, and it is still not there.

Question: How has the ACLU changed its outlook and positions over the years?

Anthony Romero: The ACLU is almost 90 years old. We have to evolve to a different set of circumstances. We have to understand how things are panning out. Sometimes we’ve made mistakes. There have been enormous debates in the ACLU during World War II around Japanese-American interment. There were groups of libertarians who thought that we ought to give FDR the benefit of the doubt; that it was necessary to secure the West Coast, and therefore intern Japanese-Americans. But fortunately there were other groups of civil libertarians who said, “No way. We can never abide that.” Our Northern California offices broke rank with some of the leaders in the national office and brought the Korematsu case, the Supreme Court case that we filed in 1941 and lost in 1944, where the constitutionality of Japanese-Americans being interned was upheld by Supreme Court, and there was some 50 years until we got reparation for Japanese-Americans.

The ALCU itself has not always been on the rights side of issues. In the 1950’s we had a very difficult period where our leadership got too cozy with Hoover’s FBI: we were giving them minutes of our meetings, we tried so hard to show him that we weren’t communists, and we expelled a couple of communists who were in the ranks, above the board and the staff of the ACLU.

As we look back as an organization, I think that those were some of the saddest moments in our organization’s history. That is good, as we can point to the interned Japanese-Americans, the moments when we were falling prey to the red scare of the 1950’s—part of what we learned from that, what we continue to learn, is the need to stand up to these abuses of power no matter who is President, no matter how popular, no matter how well liked, no matter what the challenges we confront in a particular context. Whenever we begin to think in ways like, “Well, maybe we should just negotiate and compromise, find some core issues and some core values that ought not to be compromised.”—that’s when we get into perilous terrain.

Question: What is a specific issue the ACLU has changed its stance on?

Anthony Romero:  At one point the ACLU had a policy of opposing metal detectors in airports: it was an absolutist approach to the fact that that was an unreasonable search and seizure. Over the years and as we got to understand better the terrorist threat that is present at airports in particular, we changed our policy and we said, “Look, the most important thing is to make this as least intrusive as possible.”

A metal detector is really different than strip searching someone at the airport, so we can live with a metal detector—we won’t live with strip searching all airport passengers, and part of what we’ve had to do, as any organization must do, is adapt and change with the times, but keep an eye on core principles and keep asking ourselves the question, “Are we not giving up the ghost when it comes to really important values?” I think, the way we comported ourselves , and the vigor of our descent in the initial aftermath of 9/11 where President Bush began to take more and more law enforcement powers, we were a lone voice.

Question: How did the ACLU change after 9/11?

Anthony Romero: I started work on September 4th, 2001. And I thought, as the first person to come into ACLU in over 40 years from outside the organization, that one of my primary goals would be to help to revivify a concern for civil liberties. When I was interviewing for this job, I was 35 years old. A lot of my contemporaries and friends, said, “It’s a wonderful organization but perhaps it’s time has come and gone,” that it didn’t seem this organization was about the current struggles for civil liberties and civil rights, and that much of the concerns I had coming in would be how to bring up a new generation of civil libertarians, to show that these issues are not the issues that our parents or grandparents fought for, but are issues for us and our subsequent generations.

Lo and behold, the week later, with the events of September 11th—that initial task, which I really haven’t wrapped my mind around—it became much easier to do. It was clear that the civil liberties issues that we were going to be confronting in the aftermath of 9/11 would be questions for us and for our subsequent generations, that the war on terror would unleash an enormous assault in civil liberties just like we had seen in the second World War, during the Vietnam War, and other periods where nations tried and had difficulties with national security or when there were questions around terrorism within the United States. We knew we’d be on the frontlines.

Who knew that we would be exactly as challenged as we were under the Bush years? Perhaps it was a bit of optimism, a bit of idealism; I was thinking that our elected officials and our appointed officials would have learned the mistakes of the past. But what we endured under eight years of George Bush was absolutely breathtaking. No one would have ever had imagined that we would be detaining individuals, American citizens apprehended on American soil, without charge or without access to lawyers. It was unfathomable to think that America, which always been the champion of human rights and it always denounced torture and abuse in dictatorships in totalitarian regimes, would ourselves become the torturers. It was unthinkable that the president would act without the approval of Congress or without going to any federal court will begin and announce programs on the activities and communications of law abiding Americans.

So we saw all of this at a very fast clip over the last eight years, and the clean-up we now confront with President Obama as president of the American people and the members of Congress, is like taking out the garbage. It’s not like vacating Bush’s cronies—getting rid of the Ashcrofts and Gonzales and Rumsfelds, and Cheneys of the world—this is much more akin to cleaning up a toxic waste dump; what they’ve done to the rule of law has been so severe and so systemic that it will take us years, if not generations, to fully recover our moral standing at home and abroad.

Question: What are the managerial challenges in running a passionate group like the ACLU?

Anthony Romero: They take authority very easily. They take instructions and edicts from on high, very easily, very simply. The ACLUs beauty is the fact that we question authority: we question the government, we question President Bush, we question President Obama, they question it of me, I question if of the board, and it is a wonderful, dynamic—sometimes messy, sometimes cranky, sometimes process-oriented but we would never have it any other way.

Part of what makes the ACLU so strong is in fact that we have diverse voices who often raise very different points of view. I talked about the Freedom of Information Act lawsuit earlier; well, we were able to glean over 130 thousand pages of documents from the U.S. government including the office of legal council memos from Addington and others.

That lawsuit was filed by two very junior attorneys who, when they first presented the idea of using the freedom of information act, a very senior supreme court litigator said to them, “I’ll give you one dollar for every page you get.” In most other places, like a normal law firm, those young lawyers would have been cowed, they would have kind of walked away into their offices with their tail between their legs and said, “O.k., this is futile.”

Luckily, because the people we attract are the kind of people that we want, they said, “To hell with it, we’re going to file anyway.” These two young lawyers ages put together probably don’t even get to sixty-some odd years old—which is probably the age of the person who said they’ll never get the documents from the government—and they have literally changed the face of American history. If they had not persevered and questioned the authority within the ACLU, we wouldn’t have the office of legal council memos, we wouldn’t know about the rampant, torture and abuse that happened at Guantanamo, Abu Ghraib and elsewhere. We wouldn’t know how we authorized the use of insects on detainees, and putting them on a cramped box for 18 hours or submerging them in 40-degree water for 20 minutes or 60 degree water for an hour. We wouldn’t know all those facts; so, it’s the ability to raise questions, to not be afraid of debate, to not be afraid of differences in opinion. Sometimes it can get a little messy and I think frankly, that’s sign of a healthy, wonderful organization that will continue to grow.

Question: Why did you enter into a career as a civil libertarian and activist?

Anthony Romero: I think I was always bit of a rebel, and I finally found the right cause. I’ve always believed that a person has to determine his own future, and people say, “What are civil liberties are all about? What are human rights is all about?” It’s a right to live with dignity. No matter who you are, either gay or straight, citizen or an immigrant, woman or man, whether you’re a member of the NWCPO or the Nazi party; in America you’ve got rights no matter who you are. No matter how much you love someone or you hate someone. That is the beauty of our nation. These rights don’t attach to you because you’re one group or you’re wealthy or you’re popular.

It’s often the unpopular who have the greatest difficulty exercising their rights. I often tell people Mary Poppins isn’t coming to our office to tell us that she’s been tortured because they took away her umbrella. It’s some of the most difficult clients and defendants who have been tortured, and you might not like the clients, you might not like what they’re being accused of, but we can’t change what they did to us. We can change what we did to them, and it’s often by taking those very controversial cases and some of the most unappetizing clients, or the most unappetizing effects, that we protect the core values that protect everybody on the street.

For me, that’s been always the thing: I’ve always cared most about that it was a place where you can work on the rights of all people. You know, I’m gay but we care about gay rights, I’m Latino but I care about the rights of African-Americans, I’m a man but I care about women’s rights. And what’s remarkable is that this is an organization that’s dedicated to the protecting the rights of all people, and sometimes people turn their noses at us and say, “How could you defend that person? Why are you concerned with terrorists at one time, or why are you concerned with the Nazi party, or why are you concerned about the Ku-Klux Klan’a right to freedom of speech or freedom of association?”

If you could ever allow the government to begin to chop away those rights for individuals who are not popular, you will soon find that those rights are a lot less stable and secure in the lives of all Americans, and that’s the beauty of this organization. I mean what’s old is what’s new, and I think it will be always the challenge of this Democracy to confront government abuse and government trampling of individual rights.

When we first started in 1920, women didn’t have the right to vote, blacks were still being lynched and treated like 2nd class citizens, and gay people, forget it. There was no rights for gay people that time, and there was no Supreme Court case yet in 1920 that would uphold a person and his free speech rights. That almost came almost a decade later.

What’s remarkable now is that some of the things that we take for granted were the struggle of some of the early individuals who said, “I’m always going to countervailing force to government abuse.” That is our job. We will always be the watchdogs for people’s rights, and we are not an organization that’s ever going to go out of business, we can’t.

I say to America, for as long as you have individuals who use their power in abusive ways or discretionary and capricious ways, you’re going to need an ACLU to stand up against that government abuse, and so I think of us as a permanent fixture in the American political landscape. Just like we can never imagine America without Harvard, or Princeton, or some of these great research universities, we can never imagine America without the ACLU. These rights need someone who’s going to be the watchdog no matter what, and to speak truth to power. To take on popular presidents and to take on unpopular presidents and hold their feet to the fire in exactly the same way, because if we don’t then we’ll quickly find ourselves in not the country we think we belong in.

Question: Have incidents of personal discrimination influenced your outlook on civil rights?

Anthony Romero: Yeah. Actually, it was more in watching the lives of my parents. My parents came from Puerto Rico; my father didn’t speak English all that well when he got here. Spoke it okay, but not that great; when he died, he finished the fourth grade; my mother finished the 8th grade. My father worked for thirty-some odd years at a big hotel in New York. I remember when he was a houseman, which is a night work for a janitor at a hotel; I worked at the same hotel every Christmas and summer break all through college, that’s how I paid my bills to go to Princeton. I remember he wanted to go from being a janitor to being a waiter and he was told that his English wasn’t good enough, and he didn’t really buy it because he knew the waiters in the hotel; a lot of them had very thick accents—they just happened to be Italian or Greek, or German or Russian. One guy who was Greek—his English was worse than my father’s, and so he filed a grievance to his union and he got the job as a waiter.

In fact, he was a banquet waiter; he always had a great sense of humor. He said, “I don’t really need to speak English all that well because , in serving banquets, everybody gets chicken, everybody gets steak, you serve coffee or tea—it’s the only thing you have to ask people.” He certainly had the vocabulary for that. He got that job and our lives changed. We moved out of public housing—we were living in a public housing in the Bronx—and we got to a working class community in Jersey. Much nicer environment, we got our first car, I got my first stereo, my mother got her new living room set, and they stopped fighting over money.

We began to see new possibilities before us: we took our first and only family vacation to Walt Disney World. There was that kind of discrimination that would’ve kept my father as a janitor, not as a waiter, that made me understand the power of the law. There was no lawyer in my family for me to kind of use as a role model, and I always knew I wanted to be a lawyer, and I think that was the first personal event in my young life that made me think about injustice and the possibility of righting a wrong, and I still think that’s often what drives me today.

As a gay man, I know I don’t have the rights of straight people. I’m lucky enough that I’m a Princeton-Stanford graduate with some resources at my disposal. I can contract for my rights in my personal relationship that would otherwise be given as a matter of law if I were a heterosexual. But there are some rights that I won’t ever be able to get. If I die my partner, would not be able to receive my social security benefits; its not clear that if I picked up and moved anywhere in the country that I would be protected in the same way.

Even when you’re able to transact for some other ways in which you can protect a couple or protect two same type partners, the law provides you so much better protection than we’re able to contract for, and so in America, even though I feel fully empowered and I’m very lucky to have the privilege to lead this organization and make a difference in the world, in my life I still consider myself a second class citizen by law—not by fact, but by design, by public policy; until that changes that’s going to be the reality for many people across this country, and that’s not different from a lot of people who are of Hispanic or African-American or immigrant descent find a kind of discrimination everyday in their lives, often in much more aggressive ways than I confront in my life.

I’m fortunate in fact that I can dress up in a suit, and I walk down the street, and I’m not going to get profiled in the way that other people get profiled by law enforcement officials, but in America we’re still very far away from living up to the aspirations that we’ve set out for ourselves. The reality is that we’re very far away along from achieving that.

Question: In what ways has the Obama administration most disappointed you?

Anthony Romero: Look, we are still hopeful that President Obama will keep the promises he made as candidate. There are some early signs that we’re not going down the right path. He told us he will reject the Military Commissions act and yet now he’s talking about retaining the Military Commissions as a way to deal with some of the detainees at Guantanamo. Huge mistake: you can’t fix that, you’ve got to scrap it, you’ve got to throw these individuals into established courts. You can’t tinker at the edges of the Military Commissions act.

He told us he would restore the rule of law, and yet now he’s telling us that he wants an act of preventive detention regime—which is essentially a nice word for holding people indefinitely without charge or trial. He can’t do that, that’s not the American way. We’ve never allowed that for hundreds of years. America cannot hold people who we are suspicious of merely because they may pose a threat. If you can’t prove it, you can’t take away someone’s fundamental right to liberty and do so in a way that doesn’t convict the person in a court of law. It’s anathema to the fourth and fifth amendment.

You have the president telling us that he was going to make good on some core issues around gay rights and questions around equality in America that seem to be very slow in coming. Saying that, “I’m going to give gay and lesbian people their full rights as individuals” and yet defending the Defense of Marriage act, it doesn’t compute. If those promises were made, you can’t defend the Defense of Marriage Act, you can’t drag your feet on “Don’t ask, Don’t tell.”

I think one of the concerns we have is that the President is saying, “I have all these other issues that are on the front burner.” The economy, the wars, healthcare: we all get that. We’re all Americans. We all care about people dying in wars, we all care about healthcare, we all care about the economy, but we can’t wait to fix all those problems before we get to some really important problems that he alone and his government can fix.

You can’t sequence in a way that’s going to fix the economy, healthcare, the environment, and the wars, and then will turn to gay people and the administration of justice, and detainees ,and torture and abuse. We’re never going to get there and everyone knows that it’s the first 18 months of the administration that will allow him the latitude to make decisive breaks with the past, and unless we occupy that initial window with some really bold, decisive actions, we’ll find ourselves in a new reelection campaign with pundits on both sides saying, “Defer these issues further until the second term.”

A dream deferred is a dream lost, and time is not a luxury we can afford ourselves when it comes to core issues like due process, human rights and equality; that’s why we’re hoping that bringing his feet to the fire in these issues that could get him to do the right thing.

Recorded on: July 20, 2009