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The ACLU and Occupy Wall Street

by PETER WHITE

“So long as we have enough people in this country willing to fight for their rights, we’ll be called a democracy.”

— ACLU founder Roger Baldwin

The best of times and the worst of times are our times now. Occupy Wall St protestors have launched a social movement at a critical moment in our history and have given the ACLU a real shot in the arm. Not since the Great Depression have conditions been so ripe with the possibility for transformational change.   In just two month, the protests have challenged our national politics in ways the reformist ACLU has not been able to do in 80 years. Whatever the differences between the 99%ers and the ACLU lawyers who are defending them in court, it is clear they both need each other now and they probably will continue to work together whatever lies ahead.

Speculators were responsible for the meltdown of the economy in 1929 and they are responsible for it again today. The occupiers are taking their time figuring out how and what to do about that and they are damned sure the “Republocrats” won’t do anything good on their own. It’s a safe bet the 99% don’t want taxpayers bailing out the banks. More likely, they want them nationalized or at least re-regulated.

The ACLU began in reaction to the government’s witch hunt of leftists at the end of  WW I.  When the stock market crashed in 1929, the ACLU was barely ten years old. Since its inception, the ACLU has fought to protect the right of all citizens–minorities, women, LGBT—and has spared no effort in securing those rights for those who do not have them lest they be lost for all of us someday. That has been the logic and motivating spirit behind the ACLU’s work for decades.

In recent years, the ACLU has been fighting the government’s “drastic measures” to spy on citizens and hide what it is doing behind a wall of secrecy. An ACLU report, “Surveillance in the Age of Total Information Awareness” by Nancy Murray and Kade Crockford notes that “under President Obama (who had vowed to create “an unprecedented level of openness in Government” when he first took office), there were no fewer than 76,795,945 decisions made to classify information in 2010 – eight times the number made in 2001.”

Computer algorithms are now being used to sift through mountains of data to find enemies of the state before they do anything illegal. Watch lists developed deus ex machina via a computer program is a truly Orwellian state of affairs, just like “Thought Crimes” in 1984.To fight back, the ACLU helped organize the Digital Due Process Coalition whose members include Microsoft, Google, and outfits like the Electronic Frontier Foundation, the Cato Institute, and Freedom Works.  In 2006, the ACLU sued the NSA for illegally wiretapping thousands of citizens. Two years later, Congress passed the FISA Amendment to the Foreign Intelligence Surveillance Act of 1978, which retroactively granted full immunity to the Justice Department for authorizing the illegal spying on Americans and to the telecoms who collaborated.  The NY Times sat on the story for a year until after the 2004 election. So much for “all the news that’s fit to print”.“The crises we are facing is the absence of the rule of law. The FISA Amendment is a perfect example of this lawlessness,” says Crockford. “The government should be held to account for its own crimes. Ordinary people would be put through the ringer and go to prison. This sort of admission of guilt is astounding…if you don’t have money and power you don’t get justice and if you do you’ll likely never see the inside of a jail.”

 

Translation: the ACLU is losing the fight against the invasion of privacy and a whole lot of other things, too. Protestors are occupying public spaces in cities all over the country because they correctly perceive that the American Dream is dead for the vast majority of the population.  It has been hijacked and now only the rich can afford it. Nobel Laureate Joseph Stiglitz laid out the economic facts in a Vanity Fair article last April entitled “Of the 1%, by the 1%, for the 1%”.  Government figures show 99% of our incomes declined between 1979-2007 while those of the top 1% nearly tripled.  The richest 1% gets about 25% of the national income and have more than the bottom 90% combined. Since the Reagan years, the financial sector has socialized financial risk but privatized the country’s wealth—something Wall St. protestors know from simply observing that banks and brokers have lots of money and they have none.  Who are they? Where did they come from? Want do they want? Why won’t they say? The condescending reporters hovering around the occupations are asking these questions but not getting satisfactory answers. The 99%-ers don’t much care. They have set up their own network, feeding stories, updates, poems, video, pictures and daily updates to www.occupywallst.org/, www.occupytogether.org/, and covering the news they are making much better than the mainstream news media.

 

We know the occupiers are like the Spanish “indignados”. We know they are inspired by the uprisings of the Arab Spring.  We know they are resisting in the non-violent tradition of the Quakers, Gandhi, and MLK. And we know they are decentralized without national leadership and are not engaging the establishment in ways citizens’ groups and public interest NGOs traditionally do. Take the ACLU, for instance. During the years when Wall St. was infiltrating the government and dismantling the Welfare State for everyone but themselves, the ACLU was defending the Nazis’ right to march in Skokie, Illinois.  In doing so, it protected everyone’s right to speak freely even though a lot of people revile Holocaust deniers and were upset with the ACLU for defending them.  Then as now, the ACLU fights to protect peoples’ rights and to stop abuses of power. It supports legislation that defines what government agencies can and cannot do. The ACLU prods judges, legislators, and government officials to adhere to the rule of law and apply it fairly across the board. Its first principle is the belief that the self-correcting checks and balances between the three branches of government will sustain and preserve democracy. The Occupy Wall St. protestors have no such illusions.  Hundreds of protestors have been arrested in dozens of cities since the Wall St. protests began in September. Most have been charged with illegal trespass, violating curfew, and similar misdemeanors and most of the arrests have been peaceful despite the use of pepper spray and tear gas by police.  In Oakland, police shot Scott Olsen, an Iraq War veteran, in the head with a tear gas canister at nearly point blank range. The 99%ers marched to City Hall and labor unions there called for a General Strike on Nov 2 while dozens of solidarity rallies took place around the country. In Nashville, state troopers raided the occupation of a plaza near the state capitol at 3AM, arrested 29 people, only to have the night court judge order their release. They were kept in jail for hours anyway while troopers tore down the encampment.

 

The ACLU responded by filing a lawsuit in federal court to stop nightly arrests of Occupy Nashville protesters on grounds that the state is violating their First Amendment rights. The suit claims the new rules prohibiting the occupation are invalid and illegal because they were created just to get rid of the protestors. The ACLU won a temporary restraining order and is seeking monetary damages and the return of protesters’ confiscated property.

In California, after Olsen was hurt, five Oakland public schools shut down in support. The ACLU called for a full investigation of the police riot in Oakland, and the city mayor, Jean Quan, who ordered police to clear the demonstrators out of Frank Ogawa Plaza, changed her tune, allowing protestors to re-occupy it, but then had the encampment torn down again.  In New York, Mayor Michael Blumberg did the same thing to the protestors at Zicotti Park.  Here is a link to where the ACLU is defending the 99%ers: http://www.aclu.org/maps/aclu-affiliate-involvement-occupy-movement-around-country

It’s hard to say what will happen next.  “Make no mistake; support for the power shift espoused by the 99 percent movement is now only a breeze but a windstorm is coming,” predicts Ralph Nader.  The protestors certainly hope so but right now there is more the sense that they have set sail on a sea of change and into unchartered waters.

“It’s a model for a new society. It’s not a protest in the sense of being against something,” said one woman. “It’s a way to formulate something new.”

When authorities in New York City would not allow the Occupy Wall St protestors to use a public address system, they invented the human microphone. Actually, they borrowed the idea from the Haymarket rally in 1886 when it was used to translate for the multilingual crowd fighting for the 8-hour workday in Chicago. Last month in San Francisco, the 99%ers outlined a brilliantly simple way to fix the country’s economic woes. The policy proposal has hundreds of details but none of them are riders that give away subsidies to millionaires.  Is this just a clever publicity stunt? Or are activists’ imagining a radically different politics where bills could be marked up by direct inspection instead of the gridlock that currently grips the Congress?

 

San Francisco’s Ocean Beach, October 31, 2011

(Photo courtesy: ©2011 John Montgomery) 

The Wall St occupiers know that the current crisis is not just about money but about the corruption of American values in education, healthcare, foreign policy, business, sports, you name it. And so they reject the usual ways activist groups engage in Washington politics. The occupiers are busy deliberating amongst themselves in general assemblies at encampments around the country.  Unlike in Washington, the 99%ers’ politics are inclusive, done out in the open, and they are more concerned with process than any particular outcome.

Judging by the questions in the recent ACLU national survey, their strategy seems mired in identity politics of past progressive movements and they could well use another approach. Maybe the Occupy Wall St. movement could show the ACLU and other NGOs a better way forward.

Although the ACLU is keeping a lot of the protestors out of jail, its raison d’état in defending “the least among us” seems quaintly out of touch with any realpolitik given the current crisis. Even if the ACLU wins in court that does not mean people will embrace “the other” in their hearts and minds or that any particular victory or victories will change public policy very much or for very long.

For example, Roe v Wade established the right for half the population to terminate an unwanted pregnancy. Although a women’s right to choose has been law for not quite half a century, Planned Parenthood just barely survived the recent House bill to eliminate all funding for family planning and federal money cannot be used to perform abortions any longer.

Proposition 8 in California trumped a gay person’s right to marry in San Francisco and even if courts there or the Supremes overturn it, Congress will make all such local efforts moot if rightwing legislators resurrect and pass the Defense of Marriage Act in Washington.

The ACLU’s campaign to stop racial profiling and establish verifiable police practices in West Virginia, is certainly a good thing but those standards of procedure will not last long if immigration laws are passed in Charleston like the ones in Alabama, Georgia, and Arizona.

The slow dismantling of the New Deal, the Fair Deal, and the Great Society has continued apace despite the singular victories of the Civil Rights movement in the 1950s, the antiwar movement of the 1960s, the Women and anti-nuclear movements of the 1970s, the Gay Rights and Environmental movements of the 1980s, and the Immigrant Rights movement of the 1990s.

The last decade has seen a reversal of fortune for all of those constituencies. We have a government that has turned its fear of terrorists against the very people it is supposed to be protecting and a renegade financial sector that operates with equal impunity.  Despite six decades of social activism, progressives have been unable to bring to future generations the promise of the social compact millions died for in WW II. The Occupy Wall St. protestors aim to make it good again.

Given this context, what does it all mean for ACLU’s future work? Well, open government and support of sunshine laws, reforming the way information is classified and FOIA works, defense of privacy rights, and any effort that expands and defends the public interest, whether it’s Internet access or public health or public parks, would be worth the fight. So, too, would be prison reform. That the US has one of the highest per capita incarceration rates is scandalous and the use of isolation cells here at home is not unconnected to what happened to terror suspects in Abu Ghraib and Gitmo abroad.

Whatever cause the ACLU takes up, it should resonate with and support similar efforts that the Occupy Wall St protestors are making that speak to the big issues we confront as a nation and as human beings.  The Occupy Wall St protestors have given us the first ray of hope in a long time. The ACLU will no doubt keep defending them.

But what about the rest of the 99%?  The times call for the ACLU to become a clearing house of legal action for citizens organizing their communities for better public safety, schools, healthcare, jobs–anything, in short, to better their lives and the lives of their families. By defending the right to organize for what should be, the ACLU can help write the next chapter of US history or it will become irrelevant to it.

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