To the Editor:

Last spring Joseph W. Bishop, Jr. [“Politics & ACLU,” December 1971] contacted ACLU to ask for specific materials for use in preparing an article on ACLU for COMMENTARY. The choice of Mr. Bishop to write such an article seemed odd, roughly comparable to asking Strom Thurmond to do a piece on the Southern Christian Leadership Conference. Mr. Bishop has made something of a career of opposing ACLU. For those readers who have not followed his activities (there is no reason why they should), I cite just one example. In May 1970, Mr. Bishop testified before the House Internal Security Committee in favor of retaining the emergency-detention provisions of the McCarran Act. This remnant of the McCarthy era had by then become repugnant even to such “civil libertarians” as President Nixon. At the President’s urging, it has since been overwhelmingly repealed by Congress.

Nevertheless, we sent Mr. Bishop exactly the materials he requested and, at the same time, suggested to him that since they did not provide a representative picture of ACLU’s work, he might like to come in and talk to me. He disdained the invitation, apparently preferring to proceed on the basis of his opinions, unqualified by any information he might have gleaned from talking to the ACLU staff. It is hardly surprising, therefore, that his article is filled with factual errors and distortions.

The following list touches some of the more serious mistakes in order of their appearance in the Bishop article, leaving aside both petty errors (including such simple matters as ACLU’s age and size) and interpretations that are even arguably supportable. (I would also like to comment on Norman Podhoretz’s broadside on ACLU in the same issue of COMMENTARY [“Liberty & the Liberals”], but find it impossible to do so—it is devoid of factual assertions and, indeed, its conclusions have no discernible foundation in reality. However, I would like to express my congratulations to Mr. Podhoretz that he has all the freedom he wants and needs. Would that we all could be content.)

1. Mr. Bishop says our lawyers actively litigate about 100 major cases a year. We are involved currently in approximately 2,200 cases.
2. Mr. Bishop dismisses as radical rhetoric ACLU’s frequent charge of official harassment of the radical press. A thorough review of our 2,200 cases is impossible, but consider, for example, these few recent cases, randomly selected:
   1. A federal judge in Washington, D.C. last summer struck down a federal regulation under which street vendors of underground papers were being arrested, warned that metropolitan police regulations forbade harassment of the vendors, and suggested that underground newspaper reporters arrested at demonstrations file false-arrest suits against the police.
   2. The editor of a Wisconsin underground paper was given a six-month jail sentence for refusing to reveal confidential news sources to a county grand jury in the absence of a showing of compelling need by the government—the standard for the subpoenaing of newsmen as stated by both the U.S. Court of Appeals for the Ninth Circuit and the U.S. Department of Justice.
   3. A federal judge in Texas rejected a school board’s claim that it had the right to suppress an underground school newspaper because there was an organized student movement attempting to overthrow the Houston school system, and elimination of the paper was necessary to prevent further “infiltration”!
   4. A Richmond underground paper won press passes after a federal court ruled the police could not limit issuance of passes to papers “which show proper respect for the United States and the high ideals for which it stands.”
3. Mr. Bishop refers to “the bitter and continuing row within the New York Civil Liberties Union over ‘community control.’” He correctly states that this is a “paradigm”—for it is largely a fiction. It exists to the extent that those who are still fighting the battle continue occasionally to issue statements of dubious accuracy about the issue and regularly to run candidates for election to the NYCLU Board of Directors, which is elected by the organization’s membership. They have run slates for the past three years. They have won no seats and they have lost by 2-to-1 votes in all three elections.
4. The basic issue the dissidents harped on in the community-control dispute was due process for teachers. Mr. Bishop states NYCLU took “the wrong side” on that issue. In fact, quite early in the controversy, on August 28, 1968, NYCLU issued a statement, by means of public testimony, demanding full due process for the teachers, and it never deviated from that position. (Earlier that summer NYCLU had circulated a statement of this position to other organizations and offered to support the dismissed teachers in litigation.) NYCLU insisted, however, that other civil-liberties factors were involved in the dispute and these merited the same determined protection as due process, a position the dissidents disdained and distorted.
5. Mr. Bishop asserts that the same “hostility between ‘activists’ and ‘traditionalists’ is still intense” in ACLU. This is simply false. It is a rare issue these days on which a Board vote splits along “activist-traditionalist” lines.
6. Mr. Bishop correctly states that the ACLU constitution requires “general unity rather than absolute uniformity” among affiliates and the national organization. However, in stating that “the rule is not strictly enforced,” he shows his misunderstanding of the rule. Even as it is phrased the rule suggests that the tolerance of “unorthodoxy” is not a grudging concession. Rather it is an affirmation of the desirability of some diversity. Our forty-nine affiliates decide their own policies according to their own best assessments of the issues in the context of the realities they confront. For one thing, realities often differ somewhat from state to state. For another, the national Board of Directors does not claim infallibility (how peculiar such a claim would be in ACLU), and neither do the affiliate boards. In sum, we do march to the beat of the same drummer—we just don’t do it in lock-step.
7. Mr. Bishop hedgingly states that the ACLU “staff seems almost solidly in the activist, or hyperactivist, camp” (emphasis added). He then uses this implication throughout the article as a factual premise. Mr. Bishop literally does not know the ACLU staff. He supports his contention by selectively quoting from the public statements of a few staff members. He could have chosen other public statements by the same staff members to draw the opposite conclusion. Neither conclusion is accurate. If the ACLU staff share any intellectual characteristic beyond dedication to civil liberties, it is the independence of their thinking.
8. We do not spend more time defending persons of “leftish persuasion” because of our “ardor,” as Mr. Bishop claims. We spend more time defending them because the government spends more time prosecuting them. There have been few cases of repression of the right wing in recent years; those that there have been usually have been challenged by ACLU, including the last two “right-wing” cases heard by the U.S. Supreme Court, one involving the Ku Klux Klan and the other involving the National States Rights party.
9. Mr. Bishop examined one partial docket of new ACLU cases for one period and concluded that ACLU in recent years has not been defending right-wing organizations. In fact, every one of the right-wing organizations Mr. Bishop names has recently been defended by ACLU. (And many of those defenses were reported in the New York Times, the only arguably independent source Mr. Bishop claims to have seriously studied.) The Grand Dragon of the North Carolina Knights of the Ku Klux Klan is currently being represented by ACLU in a federal lawsuit challenging his dismissal from his job as a clerk in the Charlotte Building Inspection Department because of his Klan association. Young Americans for Freedom last spring was aided by the Connecticut CLU, which was successful in asserting the YAF youngsters’ right to the same privileges in Enfield High School as other student groups—use of bulletin boards, distribution of political literature without prior approval by the school’s administration, etc.
10. Mr. Bishop contends that our dealings with the Right “are intended principally to embarrass the other party.” When the KKK last summer accepted the help of the New Jersey ACLU in a case involving cross burnings, then rejected it because one ACLU volunteer lawyer was black, the ACLU of New Jersey issued a public statement defending the KKK’s absolute right to counsel of their choice and reiterating its dismay at the prosecution. ACLU’s action was painfully principled; only malice could achieve its distortion.
11. Mr. Bishop cites our condemnation of the House Internal Security Committee for smearing individuals and our failure to react to “Wright Patman’s pillorying of the Penn Central Railroad” as evidence of pro-Left bias. Perhaps the New York CLU’s recent condemnation of the Knapp Commission’s smearing of policemen will redress that balance. It deals precisely with civil-liberties issues (and Mr. Bishop’s example of the Penn Central matter does not seem to).
12. Mr. Bishop criticizes the ACLU staff for making public statements that are not authorized by the ACLU policy guide. ACLU opposes the Hatch Act on grounds of freedom of speech and publicly criticized the NAACP several years ago when it fired a lawyer for publishing “unorthodox” views. It would be anomalous for ACLU to impose comparable restrictions on the speech of its own staff.
13. Mr. Bishop criticizes ACLU Legal Director Melvin Wulf for insisting on a “sweeping” construction of the First Amendment in the Pentagon Papers case and applauds the New York Times for opting for a much narrower construction. Actually, the position taken by the New York Times in its briefs was not very different from ACLU’s at all. Mr. Wulf’s criticism went to the emphasis put on the narrower arguments by the Times lawyers in the courtroom.
14. Eason Monroe is not suing Greenleaf Classics, as Mr. Bishop claims, nor has he ever questioned their “freedom to publish.” Dr. Monroe has never publicly stated his personal concern over the Greenleaf matter, but for the record: Greenleaf asked Dr. Monroe to write an introduction to the Report of the President’s Commission on Obscenity and Pornography. Dr. Monroe did not learn that Greenleaf was adding illustrations until he saw the edition in print. In writing his introduction, Dr. Monroe said readers would find nothing shocking in the report, a statement which would seem to indicate his personal approval of the Greenleaf illustrated edition. Dr. Monroe’s sole concern was Greenleaf’s misrepresentation of his personal appraisal of the content of the work.
15. Contrary to Mr. Bishop’s assertion, our record is not “bare of criticism of unruly defendants and their lawyers.” We issued a full policy statement on February 16, 1970, which, while condemning Judge Julius Hoffman’s contempt citations in the Chicago “conspiracy” case, noted that summary contempt powers may justifiably be used “where it is necessary to summarily and instantly and immediately vindicate the dignity of the court.”
16. Mr. Bishop wonders why ACLU offered to join the Berrigan defense. We did so because a frame-up of leading political advocates seriously threatens both due process and free speech and, contrary to Mr. Bishop’s evaluation, we do see a frame-up. True, we have been unable to defend many of the thousands of less famous persons who have been denied fair trials; but we have, I am thankful to say, been able to defend many other thousands.
17. Mr. Bishop criticizes ACLU for spending time and money on such “peripheral” issues as the propriety of Howard Levy’s confinement while his court-martial conviction was under review. To Howard Levy, who served his full sentence in prison before his case was ever heard on its merits by a civilian court, the issue could not have seemed peripheral. We are not concerned with civil liberties as a legal principle alone; we are concerned—very much so—with civil liberty as a reality. Mr. Bishop’s expressed doubt that the Levy case was a “good” one for testing First Amendment issues is even more baffling: four of the five charges against Howard Levy were pure speech charges for statements he made in private conversations and correspondence that would promote “disloyalty and disaffection” among the troops (the fifth was a charge of disobeying an order to train Green Berets in medical techniques).
18. Mr. Bishop (also former Acting General Counsel of the Army Bishop) accuses ACLU of bringing “petty” lawsuits against the armed forces. He accuses us also of willingness to jump into notorious cases, e.g., the Berrigan case. Which shall it be? We determine, case by case, where we can most effectively use our limited resources. Question our wisdom, but on what ground does Mr. Bishop question our integrity?
19. Mr. Bishop several times refers to what the courts are likely to uphold as a standard for what ACLU should advocate. What sort of integrity is that? Isn’t that, rather, playing “politics”?
20. Mr. Bishop predicts that ACLU’s membership will dwindle because of its “politics” of the past five years. We have comforting proof to the contrary. We grow at an ever-increasing rate (in fact, we added 20,000 members between the time Mr. Bishop got his 150,000 figure for the first paragraph of his article and the time the article was published).

Aryeh Neier
Executive Director
American Civil Liberties Union
New York City

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To the Editor:

. . . To the degree that Joseph W. Bishop, Jr. demonstrates the influence of political bias on the policies and actions of ACLU, he is underscoring a real danger to its civil-libertarian effectiveness. . . .

Mr. Bishop characterizes himself as a “conventional and unimaginative civil libertarian” and would limit the range of civil-libertarian intervention to such “traditional activities” as church-state relations, censorship questions, franchise restrictions, and preventive-detention matters. But this is hardly an adequate approach today. If First Amendment rights were the burning civil-liberties issues when ACLU was founded, then today the constitutional application of due process and equal protection of the law to previously nonexistent or ignored groups of people like welfare clients, blacks, students, soldiers, mental patients, prisoners, women, and others has considerably expanded the scope of civil-libertarian responsibility. ACLU can do no less than follow the reach of the Bill of Rights as it penetrates into new arenas of social struggle. . . .

The “activist” tendency in ACLU can be understood as a distortion of this genuine extension of due process for political ends. But the defense of the due-process rights of the poor and the oppressed is no less urgent, and no less a civil-libertarian issue, because some civil libertarians have adopted the poor as their political clients. There are important civil-liberties issues in what appear to be areas of “distributive justice.” For example, when the NYCLU won a court victory that established the right of a welfare client to a hearing before being deprived of his payments, it gained an important civil right for an entire class of people. In recent years the growth of welfare law has generated important civil-liberties issues. In other words, to attack politicization in ACLU because it departs from “traditional” civil-liberties issues is merely to exchange one kind of setback to civil libertarianism for another.

Another difficulty with Mr. Bishop’s approach is its failure to put the political activism he opposes in the context of ACLU’s overall civil-libertarian activity. There is certainly plenty of rhetoric in ACLU. Even when the deeds are civil libertarian, the words take on a political hue. When the NYCLU won the welfare case mentioned above, for example, the outcome was described as a victory for the “poor” in the class struggle rather than a victory for due process in the courts. Then there are the political effusions of Vice-Chairman Shack (“Hyde Park speeches”), the Neier-ian apologias for the “people” in courtroom disruptions and elsewhere, and of course the muddled hysteria of Melvin Wulf. But any assessment of ACLU in action, . . . should at least consider the 4,000 cases it litigated last year and its participation in 20 per cent of the cases before the Supreme Court. In other words, the record would show an aggressive civil libertarianism which is still predominantly within legitimate bounds. . . .

Unfortunately, there is enough in the distasteful tone of Mr. Bishop’s article and in some of the evidence he offers to suggest that he is perhaps as much opposed to the active civil-libertarian work done by ACLU as he is to its political selectivity in its choice of cases. When he cites, for instance, ACLU’s support of the Canadian Civil Liberties Association in its fight against the curtailing of civil liberties in Canada, it is not clear whether he believes that there should have been any resistance at all to the abrogation of these rights. He charges ACLU with being silent about the state’s emergency in trying to capture the terrorists, but he is himself silent about the emergency to civil liberties that was clearly involved. Is there political bias on more than one side here?

Mr. Bishop criticizes ACLU for its failure to support university authorities who tried to put down student violence in contrast to its acquiescence in student violations, an arena in which the staff has indeed been outrageously partisan. But as an example he cites ACLU’s opposition to an injunction by the University of Connecticut “against the making on campus of obscene and disruptive statements in connection with defense contracts. . . .” However repugnant student behavior may be, isn’t there a civil-libertarian obligation to oppose the prohibition of statements, not acts, of violence, on the campus, or anywhere else for that matter?

According to Mr. Bishop, when ACLU opposed, successfully as it turned out, the publication of the names of “Old and New Left revivalists” (Mr. Bishop’s nonpartisan term) by the House Committee on Internal Security, it was guilty of partisanship because it failed to oppose the “pillorying of the Penn Central Railroad and its officers and directors” by Wright Patman. But the publication of these names would have constituted instant conviction of the “revivalists” without redress, whereas the officers and directors of the railroad have available to them all the resources of the law to fight for exoneration. While all “smears” are violations of one’s right not to be smeared, a civil libertarianism which equates instant conviction for political beliefs or affiliations with a charge of business transgressions derives from strange premises.

It is one thing to criticize political selectivity of cases, it is quite another to imply that the cases selected do not warrant civil-libertarian action. The danger in criticizing the political activists is to judge their deeds by their motives, to see “politics” where there are civil liberties, and to fail to see civil-liberties issues where they are intermixed with social struggles.

Mr. Bishop refers to a “dissident faction” in the New York Civil Liberties Union which protested that affiliate’s intervention in the Ocean Hill-Brownsville community-control controversy. This unnamed “faction” is the New York Membership Committee for Civil Liberties which has been opposing the political turn in the NYCLU for over three years. It has had the material support of many members in putting out Civil Liberties Forum, which I edit, and the electoral support of one-third of the membership voting in three election campaigns for the Board of Directors. (Recently this faction has filed a court suit to force a change in the by-laws to make it possible for dissenting minorities to function effectively in the tight, bureaucratic structure of the NYCLU.)

In the eleven issues of the Forum, there has been constant criticism of the political tendency inside the NYCLU. But this dissent, this “continuing row” as Professor Bishop puts it, has always been from the standpoint of partisans of an NYCLU which, despite the irrepressible political hungers of some of the staff, has continued to function as a civil-libertarian force.

The danger of the politicization of ACLU is real enough, but so is the danger of jettisoning ACLU because of it. The task is to defend ACLU by opposing the political activists, not to give up on ACLU because of them. Even if Mr. Bishop were more correct than he is when he balances the “harm” and the “good” that ACLU is doing, it would be wise to heed the admonition of Tourtoulon, the French jurist, who cautioned: “There is no need to throw to the dogs everything that is not fit for the altar of the gods.”

Stanley Engelstein
New York City

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To the Editor:

As an ACLU’er for the past twenty-five years and a member of one of its national committees, I have agreed with the Union’s policies and activities far more often than not. Consequently, reading “Politics & ACLU” I felt somewhat like a restaurant patron who is served a side dish which he hadn’t ordered. Not that I had been unaware of the trend of events within ACLU, but it was nevertheless a bit disconcerting to see it delineated with such precision and command. A solid refutation of Mr. Bishop’s thesis that ACLU has become politicized would be most welcome, but I fear that it will not be forthcoming. While certain of his allegations may be questionable or rebuttable, for example, his flat rejection of ACLU’s contention that U.S. military involvement in Southeast Asia is unconstitutional, taken as a whole Mr. Bishop’s critique rings true. And this is bad news for ACLU, its increased membership notwithstanding.

If ACLU is to carry on its mission of protecting civil liberties and due process of law for everybody, it is not healthy for its actions to be tinged, even in the slightest degree, with ideological considerations. Nor is it healthy for it to be guilty of selective indignation when civil liberties are violated. Yet this is what has been happening, as Mr. Bishop makes clear, in noting the Union’s relative silence when New Left campus groups repeatedly shouted down speakers of whom they disapproved and, in effect, suppressed them.

Reading the publications both of the national body and of its New York affiliate, it is hard to escape the judgment that a fair proportion of what is written is rather tendentious, to say the least. As Mr. Bishop judiciously observes, the causes ACLU appears to champion may be moral or even right (or, I would add, they may be neither), but in any case such causes are not the Union’s reason for being. It is one thing, for example, for ACLU to affirm vigorously the right of accused Black Panthers to equal protection of the laws and to do battle accordingly. This clearly is ACLU’s business. But it is quite another for ACLU spokesmen to emit vibrations of institutional sympathy for the Black Panther movement.

In an article in the New York Law Journal some time ago, ACLU’s present Executive Director, Aryeh Neier, condoned disruptive behavior in court by accused Panthers in New York on the grounds that what was happening was not really a trial at all but rather a political confrontation.

There has indeed been governmental repression of civil rights and liberties in America, and the potential for further repression is quite real, particularly if violent crime or revolutionary disorders were to escalate. But there also has been, and there still is, a huge reservoir of political and individual liberty in this country (thanks, in part, to the efforts of ACLU), though one might hardly think so when reading some of ACLU’s pronouncements. . . .

In sum, Mr. Bishop’s article was saddening, not because it is farfetched, but because it is all too accurate. So much of what he says hits the nail right on the thumb. Painful as it may be. it. would be regrettable for the Union to pay it no heed.

Samuel Rabinove
White Plains, New York

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To the Editor:

“Politics & ACLU” reveals the leftward political bias of the Union that seems to prevent those of us on the political Right from obtaining equal treatment.

As a National Director of the conservative Young Americans for Freedom, I am most familiar with ACLU’s consistent denial of our infrequent requests for legal aid.

For example, at the University of Tennessee, Young Americans for Freedom requested aid from ACLU in its effort to launch a legal challenge to the university’s policy of financing political speakers. At present, all students have to pay a mandatory activities fee which is used to finance the speakers program. . . . Our request, needless to say, was turned down. . . .

Alan Merril Gottlieb
Young Americans for Freedom
Washington, D.C.

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To the Editor:

Joseph W. Bishop, Jr. fulminates and fumes against ACLU for spending its time and money on litigation to establish the unconstitutionality of the draft, and adds: “It is nearly as unlikely that the Court will agree with the Union’s contention that the present military involvement of the United States in Southeast Asia is unconstitutional. As a political matter, that involvement may be very unwise, but unless and until Congress exercises its power to withhold men and money, it is sanctioned by the Constitution” (emphasis added). In this statement, I fear that Mr. Bishop has replaced legal perception with sophistry. To equate Congressional power “to withhold men and money” with the constitutional sanction of the war in Vietnam is certainly a curious legal conceit.

ACLU now seeks to enforce Section 8 of Article I of the Constitution which clearly states that Congress, among its many other powers, shall have the power to declare war; observe, not to make war, but to declare war. This was a deliberate distinction made by our Founding Fathers.

There are lengthy notes on the preparation and adoption of the Constitution. On August 17, 1787, the issue “To make war” was on the agenda:

Mr. Pinkney: opposed the vesting [of] this power in the Legislature. Its proceedings were too slow. . . .

Mr. Butler:. . . . He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it. [How wrong he was!—L.L.]

Mr. Madison and Mr. Gerry: moved to insert “declare,” striking out “make” war; leaving to the Executive the power to repel sudden attacks.

Mr. Sherman: thought it stood very well. The Executive should be able to repel and not to commence war [emphasis added]. “Make” is better than “declare,” the latter narrowing the power too much.

Mr. Gerry: never expected to hear in a republic a motion to empower the Executive alone to declare war [emphasis added].

Mr. Elsworth: there is a material difference between the cases of making war and making peace. It should be more easy to get out of war, than into it. War also is a simple and overt declaration. Peace attended with intricate & secret negotiations.

Mr. Mason: was against giving the power of war to the Executive, because not safely to be trusted with it [emphasis added]. . . . He preferred “declare” to “make.”

On the motion to insert declare—in place of make, it was agreed to.

[Formation of the Union, Government Printing Office, pp. 561-62.]

The fact that the Congress has failed to withhold men and money proves little about the constitutionality of the war in Vietnam, but it does prove that the Congress has supinely abdicated its powers to the executive branch of the government.

Congress, with some notable exceptions, flees from a scrupulous examination of an infected wound; and it flees as well from an inquiry into its own constitutional responsibilities. The great majority of Congressmen are unfaithful to their duties and unequal to their task, with the independence they profess conditioned by their real servility to the masters who dispense honors and benefits. Our Founding Fathers gave us a great heritage and a profound moral legacy. Congress has been neither a shield nor a sword in defense of these values.

It may be that Congress is helpless. If so, we had better recognize that destiny will not be kind to us.

The power of the Presidency is awesome and patronage may well make cowards of us all. In spite of Norman Podhoretz’s assurance that “never has there been so great a degree of civil freedom, probably in the history of the world,” 60,000 young Americans have sought refuge in Canada and hundreds more are in jail, hostages to our brand of civil freedom.

It was never the idea of those who wrote our Constitution that the President, alone, could make his own little wars (Cambodia and Laos). . . .

It helps not at all to say that “it is nearly as unlikely” (whatever that means) that the Court will change its mind about the constitutionality of the draft and the war in Vietnam. The Supreme Court has said it is not bound by precedent.

Mr. Bishop says, “For half a century [ACLU] has done more than any other organization to enforce the First, Fourth, Fifth, Sixth, and Eighth Amendments of the Constitution.” Consequently, and notwithstanding Mr. Bishop, I shall continue paying my dues and making my contributions to ACLU in tribute to that distinguished record.

Leonard Levy
Vice-President
Amalgamated Clothing Workers of America
Los Angeles, California

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To the Editor:

Most of Joseph W. Bishop, Jr.’s attack on the recent activities of ACLU seems persuasive, but not so his offhand dismissal of ACLU’s argument that America’s role in Indochina is unconstitutional. There is a prima facie case for such a court challenge: 1) Article I, Section 8 of the Constitution grants Congress the power to declare war; 2) Congress had not declared war against North Vietnam or the NLF; 3) nonetheless, our actions in Southeast Asia indisputably constitute a war. To be sure, I would not go so far as to argue that our military involvement in Southeast Asia is undeniably unconstitutional, for past precedent and Congress’s failure to cut off funds, it might be argued, constitute a de facto declaration of war. But these actions might equally, not be so construed, and there hardly seems to be any doubt that the war can be legitimately challenged on constitutional grounds. Indeed, for a professor of law to argue or strongly imply the contrary is quite remarkable. Mr. Bishop is very free in drawing inferences about ACLU’s political motivations; might not his readers then be equally justified in drawing the inference from his handling of this matter, as well as from his tone of lofty amusement toward the Berrigans and their supporters, that it is his own political views which account for at least some of his opposition to ACLU?

Jerome Slater
Department of Political Science
State University of New York at Buffalo
Buffalo, New York

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To the Editor:

. . . . I have had great respect for the principles of ACLU, and for many years had great respect for its actions. It is obviously imperative for a free society that dissent be protected, that unpopular stances be permitted, and that the channels for change and growth be kept unclogged. To me, the idea of ACLU has been that of civility, of encouraging growth and change via persuasion and discussion rather than coercion. During the days of McCarthyism and the House Un-American Activities Committee, etc. ACLU did a good job. But, in light of recent actions, one has almost been forced to believe that the allegiance of ACLU has all along not really been to civility, reasoned discourse, and free discussion, but rather to an emotional commitment and sympathy for rebellion against authority. For during the past few years, when those who have been repressing free speech, reasoned discourse, and civility have been those in rebellion and not the authority wielders themselves, ACLU has been relatively silent in any criticism or in sounding alarms. In some cases, it has even departed from its proclaimed stance of being officially neutral concerning the substance of speech, the free exercise of which it has pledged itself to protect, and has taken positions against those in authority on substantive matters. . . .

Leonard S. Sandweiss
New York City

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To the Editor:

As a card-carrying member of the American Civil Liberties Union, and as a student and teacher of the history of civil liberties in the United States, I marvel at Joseph W. Bishop, Jr.’s ability to fire so many rounds of verbal buckshot yet miss the target so consistently. His bill of particulars against ACLU is reducible to the following dubious propositions:

In some golden libertarian age ACLU was virtuous—i.e., principled; now it has fallen from grace—i.e., it is political. In fact, since its founding ACLU has comprised an uneasy alliance of libertarian “idealists,” who viewed the Bill of Rights as an end in itself, and libertarian “instrumentalists,” who used the Bill of Rights as a means to hasten social change. Neither group enjoys a monopoly on virtue—nor on historical legitimacy.

Principled libertarianism is demonstrated only by equivalent defense of the liberties of Right and Left; success in this enterprise is measured by counting ACLU clients and weighing their politics. In the best of all worlds, where repression was dispensed in equivalent doses, this would be a fair test. But this isn’t that world. The special strain of American anti-radical pathology has, since the coming of industrialization, made critics on the Left particularly vulnerable. Given the persistent imbalance in power relations between Left and Right in American society, it would be an egregious perversion of equality for ACLU to behave as Mr. Bishop wishes it to. It is the social context that shapes ACLU responses—more leftists are defended, and should be, because the liberties of leftists are more precarious.

The legal system is the true embodiment of everything excellent—a truth ignored by the politicized ACLU. Mr. Bishop would have us believe that because courts have refused to accept the argument that the draft is unconstitutional it is absurd for ACLU to present such an argument now; that because the Supreme Court would have rejected a broad interpretation of freedom of the press in the Pentagon Papers case we must not only hail the wisdom of the Times’s counsel (behold, Mr. Bishop’s Yale Law School colleague, Alexander Bickel!) for presenting a narrow, good-for-this-trip-only argument—but we must chastize ACLU for indicating its displeasure with a brief that weakened principle with expediency. Could it be that the fault, in both instances, lies with judicial modesty rather than with ACLU activism?

Mr. Bishop’s self-described “conventional and unimaginative” libertarianism may suit him, but his political preferences should not serve as a model for ACLU. The choice is not between libertarianism and politics, but between two varieties of libertarian politics—active and passive. Conventional types may enjoy the luxury of hand-wringing only as long as unconventional and imaginative libertarians within ACLU fight actively to defend, and extend, the principles for which their organization stands.

Jerold S. Auerbach
Department of History
Wellesley College
Wellesley, Massachusetts

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To the Editor:

In the last paragraph of his article Joseph W. Bishop, Jr. hints at an explanation for the drift of ACLU from its historical course: “. . . the Union suffers from a problem created by its very success: to find new battles and victories.” . . . The shifting of organizational energies to newer and more “in” battlefields is after all not an unfamiliar phenomenon on the American scene. . . . Even government committees that were created to perform only one specific task somehow hang on for years and years beyond the accomplishment of that task. . . .

In the light of the above, the case of ACLU is not atypical. Perhaps the “thinking” segment of ACLU’s constituency might have expected more intellectual integrity and less “empire building” from the organization. After all, ACLU is neither a government committee nor the March of Dimes. It would in fact have been an event of no little historical significance if ACLU had publicly declared that the main task for which it was established had, for the nonce anyway, been accomplished and had then directed its followers to divert their financial and personal support to the many new and active organizations fighting today’s political battles under their own banners. . . . But such, alas, was not to be. . . .

Ronald Gruen
Dallas, Texas

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Joseph W. Bishop, Jr. writes:

The first paragraph of Aryeh Neier’s letter says more about the mentality of ACLU’s present leadership than did anything in my article. My point of view is in fact as distant from Senator Thurmond’s as it is from Mr. Neier’s, and I thought I made it pretty plain that I do not view the ACLU as Senator Thurmond (I assume) views the Southern Christian Leadership Conference. (But I suppose I ought to be grateful. Mr. Wulf would probably have compared me to Heinrich Himmler.) I wouldn’t have bothered to write about ACLU at all if I hadn’t thought that it was a very important and useful organization, some of whose present policies threaten great harm to itself and consequently to the cause of civil liberties. Mr. Neier, however, equates disagreement with his own opinions to implacable prejudice against ACLU.

Mr. Neier’s description of my testimony on the Emergency Detention Act is another excellent illustration of the mental processes and methods of debate of ACLU “activists.” I expressed the opinion in substance that in any of the three great emergencies to which that Act was applicable (invasion, declared war, and insurrection in aid of a foreign enemy) it would almost certainly be held constitutional and that, moreover, its express provision for judicial review of individual cases, through petitions for habeas corpus, placed on the power of the executive in such emergencies limitations which the Supreme Court might not have found in the Constitution. (Presidents Lincoln and Franklin Roosevelt issued wartime Executive Orders, whose constitutionality the Court managed not to pass upon, which denied access to the courts to certain classes of persons confined for reasons of national security. In neither case was there Congressional authority for the suspension of the writ.) Mr. Neier does not mention, and may not know, the fact that the Act was not Senator McCarran’s creature, but was sponsored by a group of liberals, including Senators Kilgore, Douglas, Benton, Lehman, Kefauver, and Humphrey. I strongly suspect that the reason Messrs. Nixon and Mitchell did not oppose its repeal was their belief that in such crises the President would have broader powers without it than with it. But Mr. Neier, possibly because he had not actually read my testimony and was unfamiliar with the complex constitutional issue, uses my testimony on that issue to support an insinuation that I favor concentration camps.

I regret that it was not feasible for me to come to New York to talk to Mr. Neier and his staff, but I doubt that what they said in private would have been much different from what they say in public. I had access not only to the material which Mr. Neier sent to me, but also to much that he did not send, such as the Union’s Policy Guide, the minutes of recent meetings of its national Board of Directors (to the extent that they were not, as in the Berrigan case, in Executive Session and classified), the most recent report of the Legal Director, and, of course, ACLU’s annual reports. Prior to publication I gave copies of my manuscript to three persons who are prominent, active, and well-informed on the Union’s affairs. One had no comments; two suggested comparatively minor corrections and emendations, which I made. I think it is obvious from Mr. Neier’s letter that even his microscopic examination did not turn up substantial inaccuracies. He is uncharacteristically silent on my most serious charges, notably those relating to the ACLU management’s condoning “political” violence by left-wingers and its indifference to assaults on free speech by left-wing storm-troopers. I shall comment on his complaints seriatim, using the same numeration as his paragraphs.

1. My statement that ACLU’s lawyers “actively litigate about a hundred major cases a year” (emphasis added) was based on the report of the Legal Director, dated February 4, 1971, which purported to list all cases entered by the national legal office since February 1970, and which included 94 such cases. I assume Mr. Wulf’s list was correct and complete. I suspect that Mr. Neiers’ reference to 2,200 cases includes a great many which are being litigated by the affiliates. This is part of a normal pattern of conduct of the central body’s spokesmen. When they want to dissociate themselves from a local, they stress the diversity and independence of the affiliates; when they want to boast of size and scale, or take credit for an affiliate’s actions, they lump them all together. I recognized the truth of the warning, in a letter to me from ACLU’s Director of Public Relations, that it would be impossible in a magazine article of ordinary length to describe the policies and actions of all the affiliates. Accordingly, I confined myself to the parent organization and (to a lesser extent) the New York CLU, with passing references to two or three others, and in all cases I said as plainly as possible which CLU I was talking about.
2. I said that the editors and publishers of the “underground” press “rarely risk anything worse than harassment by their creditors,” and here Mr. Neier amply proves my point. Mr. Neier triumphantly produces a grand total of four rather minor cases in which such sheets (of which there must be hundreds or even thousands) were involved in litigation. In three the courts upheld their rights; the fourth, whatever its merits, involved no issue of freedom to publish.
3. Again, Mr. Neier proves my point. If one-third of the membership of the NYCLU regularly supports opposition candidates, the row is certainly continuing; and Mr. Neier’s choice of language (like Mr. Engelstein’s) attests to its bitterness. Mr. Neier’s accuracy in the use of words is on a level with his accuracy in other respects: a “paradigm,” defined by Webster as “an example, model, or pattern,” is not necessarily or usually fictional. I infer that Mr. Neier confused it with “parable.”
4. The NYCLU’s defense of the teachers’ right to due process was so pianissimo (compared to its trumpet blasts on other issues) that it escaped not only my notice but also that of the UFT. Mr. Neier does not claim that NYCLU ever did anything to help enforce the teachers’ rights.
5. Mr. Rabinove’s letter is evidence that the “traditionalists” within ACLU are not happy about its “activist” control. It is typical of a number of letters which I have received, some of them from people who are, or were, prominent in ACLU.
6. Mr. Neier does not quote me or ACLU’s constitutional provision in full. It also provides that the affiliates “shall act in accordance with the policies of the Union.” I suppose “policies” means those stated in the Policy Guide, which also forbids the affiliates to take positions on national issues which do not accord with those of the national body and provides for the suspension or expulsion of an affiliate by vote of two-thirds of the national board.
7. It is quite true that I know the ACLU staff (with the exception of Mr. Wulf, with whom I have a slight personal acquaintance) only through their public statements. I don’t suppose that Mr. Neier believes that he should refrain from criticizing Messrs. Nixon, Agnew, or Mitchell (or even me) because he has no personal acquaintance with them. I wish he had cited the alleged public statements by the staffers whom I quoted which would have supported an “opposite conclusion.” I didn’t find any, though I looked hard.
8. I took some pains to make clear that the paucity of right-wing clients was “not entirely a result of [ACLU’s] own political predilections.” I think the most important reason is probably that the right-wingers (with the exception of the Klan) are at the present time much less inclined to violence, and therefore less likely to collide with the law, than the left-wingers. I made adequate mention of the National States Rights party case and of ACLU’s role in it.
9. The “partial docket” was not so described by the Legal Director. (See paragraph 1, supra.) According to the decision of the federal court in Grand Dragon Murray’s case, Murray was represented by the North Carolina CLU, about whose policies and activities I said nothing. The same goes for the Connecticut CLU’s defense of the Young Americans for Freedom’s obvious right to be accorded the same privileges as other student groups. Both cases were eminently proper ones for a civil-liberties organization (much more so than many of the cases in which ACLU has leaped to the defense of left-wingers), and these actions of the North Carolina and Connecticut affiliates do them credit. But they prove very little about either ACLU, the NYCLU, or other affiliates. By Mr. Neier’s own account—and I think it probable that he has scraped up whatever there was to scrape up—there is exactly one current case out of more than 2,200 in which an affiliate—not ACLU itself—is representing a right-wing client. In two cases (see also paragraph 10), affiliates have taken steps short of litigation to defend the constitutional rights of right-wing groups. Again, I think Mr. Neier proves my point.
10. I was aware that the New Jersey ACLU (on which I didn’t comment) had put out a press release upholding the right of Ku Kluxers to burn crosses (presumably on their own lawns). I not only did not “distort” it; I didn’t even mention it, because (see paragraph 1) I confined myself to the parent organization and the NY-CLU, with incidental references to two or three others, not including New Jersey. The New Jersey ACLU could not, of course, be expected to exclude its black lawyers from representing the KKK; but I suspect that it anticipated the Klan’s reaction to the offer of a black lawyer and was not disappointed by that reaction. I fail to see why the defense of a Ku Kluxer’s constitutional rights should be any more “painful” to civil libertarians than defense of the constitutional rights of a Black Panther.
11. I should have thought it obvious that Congressional condemnation of Penn Central officials, some of whom are defendants in civil litigation, and may become defendants in criminal proceedings, raises issues of constitutional due process. I agree with the NYCLU’s statement on the Knapp Commission’s proceedings, which is one of its occasional involvements in a genuine civil-liberties issue.
12. In this paragraph Mr. Neier sets up and knocks down a straw man. I criticized some staffers, not because they said things which were inconsistent with the Policy Guide, but because they “are not always careful to distinguish their personal opinions from those of ACLU.” Of course, they have a right to express their personal views.
13. Mr. Wulf’s article said that “Mr. Bickel spent practically all his time at oral arguments and in his briefs arguing the separation of powers and statutory points. He addressed the First Amendment issue only in a perfunctory and formalistic way” (emphasis added). Characteristically, he also accused Mr. Bickel of subordinating his client’s interests to his academic legal philosophy, coyly hinting that his development of this argument was limited by “the law of libel.” (In the circumstances, there would be no question of libel unless his charges against Mr. Bickel were made with knowledge that they were false, or with reckless indifference to their truth or falsity.)
14. The minutes of the national board meeting of February 6 and 7, 1971, reported that Dr. Monroe had “retained a UCLA law professor to represent him in a possible legal action against Greenleaf Classics,” and I erred in assuming that he had actually brought suit. In the circumstances I think he would have been fully justified in doing so.
15. A policy statement whose purpose was to place the narrowest possible limits on the power of a court to punish contempts committed in its presence, even though it recognized (as it had to) that such power exists in extreme circumstances, hardly amounts to “criticism of unruly defendants and their lawyers.” The New York Law Journal article mentioned by Mr. Rabinove, which I had not seen (and which for some reason Mr. Neier did not include in the material he sent to me), seems a better example (or paradigm) of ACLU’s attitude toward courtroom disruption. (To set the record straight, I believe that only in extreme circumstances should the court in whose presence a contempt is committed itself punish that contempt. I criticized Judge Hoffman’s handling of the matter in an article in Esquire for April 1971.)
16. Mr. Neier does not say what evidence makes him so positive that the Berrigan indictment is a “frame-up.” At this stage of the proceeding, I am aware of no such evidence, and I repeat that there is nothing novel or intrinsically incredible in the idea that religious fanatics may enforce what they take to be God’s will by acts of criminal violence. It seems as irrational (and as improper for one who claims to believe in due process) to be convinced of innocence without having seen the evidence as to be convinced of guilt.
17. People convicted of crime are commonly (no doubt too commonly) confined pending appeal, and I am not aware that ACLU has made a great issue of it in any other case than Captain Levy’s. The grounds for my opinion that his case was not a good one for testing the First Amendment rights of servicemen are simple and even obvious. Even if his conviction for making statements intended to promote “disloyalty and disaffection” among enlisted men were held unconstitutional, which I think at least doubtful, the conviction of disobedience of orders would still support the sentence. It is a fact of legal life that judges and Justices are less inclined to make new and controversial constitutional law when doing so is unlikely to cause any substantial change in the outcome of the actual case.
18. Mr. Neier seems to think he proves something by accusing me of having once been Acting General Counsel of the Army. As a matter of fact, I did nothing in that job about which I am, nearly twenty years later, in the least embarrassed. By similar (or better, though still fallacious) reasoning I could prove that ACLU’s Board Chairman, Edward J. Ennis, favors putting unpopular minorities in detention camps, because he signed the government’s briefs in the Japanese exclusion cases. I did not accuse ACLU of jumping into the Berrigan case because it was “notorious,” but of jumping into it because of sympathy with the defendants’ politics. Similarly, I think that ACLU’s motivation in some of its sillier suits against the military is primarily political.
19. I think the chance of success should be, as it used to be, a powerful factor in choosing which issues and cases ACLU will litigate. The reason is the simple one that ACLU’s resources, though large, are not unlimited.
20. I did not, of course, “predict” that ACLU’s membership will dwindle, although I thought and still think that risk exists. If its membership becomes politically homogeneous, more interested in advancing the politics of the Left than in seeing that everybody gets the benefit of the Bill of Rights, I would regard an increase in that membership as useless or harmful to the cause of civil liberty.

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So far as I can follow Mr. Engelstein’s argument, I think he may have misunderstood my point. I certainly don’t oppose ACLU’s defending the constitutional rights of “previously nonexistent or ignored groups of people.” On the contrary, ACLU might do a better job in this respect if it expended less of its time and energy on political causes. I don’t understand his point about the House Internal Security Committee’s list. So far as I know, none of the “Old and New Left revivalists” whom I mentioned has been, or is likely to be, “convicted” or even threatened with criminal prosecution for his speeches. But there has already been at least one criminal indictment in the Penn Central case, and more may follow.

Mr. Levy’s constitutional argument is interesting, but it overlooks a good deal of material which other people might think relevant, from The Eliza, 4 Dallas 307 (1800) and Bas v. Tingy, 4 Dallas 36 (1800) to Orlando v. Laird, 443 F. 2d 1039 (1971) and Commonwealth of Massachusetts v. Laird, 451 F. 2d 26 (1971). In the former cases the Supreme Court found nothing unconstitutional in the conduct of armed hostilities against France, despite the lack of a declaration of war; in the latter, the United States Courts of Appeals for the First and Second Circuits similarly held that Congressional provision of men and money for the hostilities in Vietnam was sufficient to make constitutional the actions of the President. I think it most unlikely that the Circuit Courts will be reversed. I suggest that Mr. Levy read these decisions, old and new, and also an article by Professor Leonard Ratner on “The Coordinated Warmaking Power” at 44 Southern California Law Review 461 (1971), which, inter alia, chronicles the long history of the United States’ involvements in “limited,” undeclared, wars.

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