When the American Civil Liberties Union filed law suits on behalf of families separated at the US border with Mexico, it was the latest demonstration of what its leaders have willed it to become — a rapid legal assault force against the Trump administration, writes Joel Lovell
ON the morning of June 22, the American Civil Liberties Union won a major Supreme Court decision in Carpenter v United States, which was possibly, at least in terms of pure jurisprudence, the most important case argued before the court this past session.
It was a landmark ruling that changed the future of digital privacy in America, but news of the win was only the second-most important thing happening at the ACLU offices that day.
At 3pm, a conference call was scheduled to discuss the more than 2,000 children whose fates were tied to another ACLU suit against the US government.
That case — Ms L v ICE — was filed in late February, long before most of the rest of the world was aaware that thousands of children were being separated from their families at the border.
By comparison, a coalition of 18 state attorneys general filed a suit to stop family separation on June 26, four months to the day after the ACLU filed its suit. It began with a single client, a Congolese woman, Ms L, aged 39, whose daughter was taken from her in November 2017, but it quickly grew into a national class action on behalf of every family whose children had been taken from them.
On June 6, Judge Dana M Sabraw, a George W Bush nominee in the Southern District of California, rejected the government’s motion to dismiss the case and ruled that in detaining the immigrants, it was violating the due-process clause of the Fifth Amendment.
The ACLU asked that Sabraw issue a nationwide injunction, which the judge was still considering when the White House, with no legal room to manoeuvre and public outcry intensifying by the day, issued an executive order on June 20 saying the practice would be stopped.
Now, on that Friday afternoon, Sabraw asked the lawyers to call in to discuss how the executive order affected their cases. Did the White House’s decision, in theory anyway, negate the need for a nationwide injunction to stop family separation? And how did it affect the children who had already been separated?
Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project and lead lawyer on the case, dialled in from the ACLU’s national offices in Lower Manhattan; Sarah Fabian, an attorney at the Department of Justice, called from Washington.
I was listening on speaker in an office next to Gelernt’s. After informing the attorneys that he was in the courtroom and that the call was on the record, Sabraw immediately asked: “How does the executive order affect this case?”
An injunction was more necessary than ever, Gelernt argued, given how much worse things had got since they argued the case in Sabraw’s court in early May. “As your honour has probably been following in the media,” he said, “there are about 2,000 kids now who have been separated. They range from little babies less than a year old to toddlers to young children. And they are suffering immeasurably.”
The executive order still had too many exceptions that would allow family separations to continue, Gelernt said, and vitally, it didn’t address the issue of how the families would be reunited.
“Your honour,” he said, “I realise that I am almost pleading, but we believe it is necessary for you to issue an injunction as early as tonight or this weekend.”
Sabraw asked if there was any interdepartment communication that would allow the US government to even begin putting together on a plan for reunification. “I can’t say today that there is a formalized process,” Fabian responded.
You could hear Gelernt trying to control the emotion in his response. “At this point,” he said, “I think the government has had plenty of time to realize that they are literally terrorizing these little children and creating irreparable harm to them.
”Near the end of the call, Sabraw asked for additional briefs to be filed before he issued a decision. Could the ACLU file theirs by Monday morning, clarifying what relief they were now seeking for their clients, and could the government reply by Wednesday afternoon?
Gelernt tried one more time to push for an expedited process.“We could get something to you by midnight tomorrow night, if the government could respond by 9 a.m. Monday,” he said. “To allow you to issue something, you know, by Tuesday, if the government is willing to do that.”
Fabian declared that it was already too late on a Friday for that; the government needed time to prepare its response during normal work hours. So, it was decided, Wednesday.
I took a brief walk with Gelernt after the call. He looked totally spent. I’d thought about this a lot over the past few months, of course, but the profundity of the burden that he was under, fighting against the US government for these families, seemed suddenly unimaginable.
“I feel terrible that I couldn’t get him to budge on the timeline,” he said. “I did everything I could think of. Wednesday. That’s another five days. How can we wait another five days?” (The judge later amended the deadline to 9am Tuesday.)
A little while later, I sat with Anthony Romero, the ACLU’s executive director, in his office looking out on the Statue of Liberty. “Rome burns,” he said. “Rome is burning. And the US government’s lawyers can’t work a weekend.” I recalled a conversation we had there 16 months earlier, a few days after President Trump issued his first travel ban.
The ACLU response to the ban had been immediate and wide-ranging. It filed its own case challenging the constitutionality of the order. But it also pushed out a template for habeas petitions to all the attorneys who had rushed to airports around the country offering assistance.
At the federal district courthouse in Brooklyn, in an emergency Saturday night hearing, Gelernt argued for a nationwide temporary injunction to block the US government from deporting travellers from seven Muslim-majority nations who were now stranded at airports as a result of Trump’s ban.
The White House was forced to modify its ban twice, before the Supreme Court finally ruled in the president’s favour in late June.
I was in the crowd in Downtown Brooklyn when Gelernt stepped out onto the courthouse steps after the hearing. The atmosphere was electric. The new president had taken decisive action, and the courts and citizens rising up in protest had beaten him back. There had been, as with the crowd at the Women’s March a week earlier, a feeling of power and possibility.
“That’s the model,” Romero said when I met him the next week.
But he also warned that they were only a week in. They were going to have to file suit after suit after suit. And he worried about how to keep morale up among his lawyers and the ACLU’s members as time went on.
Family separation was a perfect example. Even if Sabraw issued an injunction, that meant either more legal challenges as the government appealed, or intensive monitoring to make sure they were complying with the order, and more lawsuits if they weren’t.
This fight, like every fight on every front against the Trump administration, was going to grind on. For now, it was important to focus on what had already been accomplished. Trump could spin it any way he wanted, Romero said, but there was no denying that the executive order was a win for the opposition.
“Think about it,” he said. “Donald Trump backed down. We made the president back down. The litigation worked. The public outcry worked. Now we have to keep up the pressure. That’s what we do now.”
On November 9, 2016, millions of voters woke desperate for something that might quell their anxiety that this was the beginning of the end of democracy in America. Overwhelmingly, the place they turned to was the ACLU. Before the election, the ACLU was largely associated with either free-speech purism or leftist subversion of the American government (George Bush famously calling Michael Dukakis a “card-carrying member,” not so subtly equating support of the ACLU with communist sympathy, during the 1988 presidential campaign).
Slightly less cartoonishly, the group has long been seen by those who are vaguely aware of its work as a collective of well-intentioned defenders of the US Constitution, running their cases year after year and sending out newsletters to a membership made up largely of aging former hippies.
In the 15 months that followed the election, the ACLU’s membership went from 400,000 to 1.84 million.
Online donations in the years before averaged between $3 and $5 million annually. Since then, it has raised just shy of $120m.
“Until Trump,” Romero told me, “most of our support came from people who have been with us since we challenged Nixon. Now we’re kind of cool. Cool’s not a word generally associated with us.”
In the latest string of celebrity fundraisers, Radiohead announced that anyone who makes a $10 donation to the ACLU will be entered into a lottery to hang out with the band and get VIP tickets to a show.
Back in March 2017, Tom Hanks, Tina Fey, and Alec Baldwin were among the hosts for a Facebook Live telethon that raised more than half a million dollars and was nominated for an Emmy.
That same spring, Zedd, a German house DJ, organized a benefit at the Staples Centre in Los Angeles. Gelernt was one of a handful of ACLU representatives who addressed thousands of fans between acts.
“I went on after Imagine Dragons,” he told me. “It was insane. I put on sunglasses and went out there and started talking, and I couldn’t see anything. Then I go backstage, and these musicians who are practically my kids’ age are partying and asking what we’re doing to resist Trump. I was like, ‘Well, there’s an en banc hearing in the Fourth Circuit coming up.’”
A big chunk of the money that the ACLU has raised has gone toward hiring more lawyers, both in the national office and throughout its network of 54 affiliates
.“I’d like to have 500 lawyers nationwide by 2019,” Romero told me back in the spring of 2017, when the organisation was still in the early stages of figuring out exactly how to use the resources pouring in.“That’s bigger than we’ve ever been. But let’s not lose sight of reality: There are 11,000 lawyers in the US Department of Justice. Eleven. Thousand.”
When you add in the lawyers at the US Departments of Homeland Security and Labour, who handle immigration law, and Health and Human Services, who field L.G.B.T. issues, there are at least 18,000 lawyers on the US government’s payroll.
“We’re the biggest of the advocacy groups, but even if we go from 300 to 500 lawyers, we are still tiny,” Romero said. “The power of the federal government can’t be overestimated.”
The ACLU had been preparing for the new administration since the summer of 2016, when Romero asked the lawyers on staff to develop reports on each of the candidates’ records regarding civil liberties.
They were familiar with Hillary Clinton’s and generally knew where the challenges would lie. For Trump, the group hired an opposition research firm to go through all his campaign statements, which they organised into five subject areas.
The lawyers came up with legal strategies for opposing Trump in each of those areas. “There were no screeds,” Romero said. “No character assassination. Just cleareyed, lawyerly analysis.”
Romero at first got some internal pushback on the Trump memo. “The lawyers were busy and felt Trump was a waste of time and they should be focusing on the Hillary report,” he said. “But I forced us to do Trump, and that’s what allowed us to come out of the gate right away.”
Romero arrived at his office the day after the election and pulled the memo, read through it again and began writing a statement that would be released that day, as well as the copy for a full-page ad that ran in The New York Times, detailing the ways in which Trump was a threat to the constitution and declaring, “You will have to contend with the full firepower of the ACLU at your every step.”
Since Trump took office, the ACLU has taken 170 “Trump-related legal actions.” There have been formal calls for investigation, administrative and ethics complaints, and requests for documents under the Freedom of Information Act.
There have also been 83 lawsuits, more than at any other equivalent time in its history — in defence of immigrants and transgender people and abortion rights and free speech and voting rights and access to birth control.
After that Friday afternoon family-separation call, I walked around the hallways for a little while and looked in on various rooms.
The place had visibly changed from when I first started showing up there 18 months earlier.They were doubling lawyers up in offices now, and there was a communications and social-media team piled into what used to be a communal space.
There were lawyers preparing for a hearing in North Carolina, challenging a state law barring transgender people from using the restrooms that match their gender identity.
Early on, Romero knew that the public’s investment of faith and money required something bigger from them than what they could achieve in a courtroom.
Right after the election, he hired a new national political director, Faiz Shakir, whose job would be to figure out how to mobilise all of those people looking to the ACLU for help. “The day after the election, American people started voting again,” Shakir told me.
“With their pocket books and their email addresses, telling the ACLU: ‘Tag, you’re it.’ My take on that was, keep doing what you’re doing, litigation is great, but you have to rethink what your mission is.”It’s not the first time the A.C.L.U.’s mission has shifted.
At its founding in 1920, theACLU was less an institution that believed in the power of litigation than an activist group fighting on behalf of workers trying to unionize and “radicals” being arrested without warrants and deported by a government in the grip of anti-communist fever.
“The ACLU’s lawyers at that time didn’t really believe in the courts at all,” David Cole, its national legal director, told me. This is more or less smack in the middle of the Lochner era, a time when the courts were politically conservative and judicially aggressive
.“The only constitutional rights the courts were concerned with were the rights of businesses to strike down any law designed to protect workers or consumers against unfettered capitalism,” Cole said. (You don’t have to stretch your imagination to see the parallels with the current Supreme Court.)
The ACLU filed lawsuits at the time, fully expecting to lose, Cole said, figuring that the losses would at least be of propaganda value in demonstrating to Americans the uselessness of the courts when it came to protecting the rights of the people. “And then, to their surprise, they start winning a few cases,” Cole said.
“And they realize as lawyers that if you make more patient, incrementalist arguments, you can win in court, and that each incremental gain sets the stage for more progress. This really is the birth of civil liberties litigation, which is pretty much the only thing we did for the next 90-something years. Until now.”
After years at the Center for Constitutional Rights and a professorship at Georgetown Law, Cole took over as the ACLU’s national legal director a week and a half before Trump took office.
He accepted the job in the late summer of 2016, when the future was all Hillary Clinton and Merrick Garland and the first liberal Supreme Court in nearly 50 years.
“Anthony wooed me with visions of presiding over the new golden age of civil rights and civil liberties litigation,” he said when I first met him.
In the autumn of 2016, as if in anticipation of the moment in which we’re now living, Cole published his seventh book, Engines of Liberty: How Citizen Movements Succeed.
In it, he lays out three radically different examples of citizen groups banding together to change public perception and reshape political and judicial will: In 2015, when gay rights groups won the fight for same-sex marriage; the National Rifle Association’s inexorable gathering of local and state-level influence that led in 2008 to the federal constitutional right of individuals to bear arms; and the international pressure brought to bear by human rights groups during the Bush administration’s “war on terror,” which led to a 2004 Supreme Court ruling that effectively ended the blanket legal deference historically afforded an American president during a time of war.
Each of those outcomes was previously inconceivable, Cole says. What ultimately brought them about was less a sea change in the Supreme Court justices’ worldview, or some masterstroke of lawyering, than a steady exertion of influence by civil society organisations whose members were committed to change.
No advocacy group is better at doing that, Cole points out, than the NRA. And despite what most Americans think, the NRA’s extraordinary influence comes less from campaign contributions or lobbying efforts than from “its remarkable ability to mobilise its members and supporters at the ballot box”.
In his book, Cole quotes former NRA president David Keene on this point: “The power of the National Rifle Association doesn’t come from money,” Keene said. “Which doesn’t mean we don’t have to spend money, because we do. But it comes from votes. It comes from the people.”
Politicians can raise money from a range of sources, Keene asserted, “but if you tell a politician you’ve got 8,000 members in his district, he’s willing to think about things other than money.”
Dennis Burke, who served as an aide to former Senator Dennis DeConcini, a Democrat from Arizona — a state where the NRA has been deeply effective — is even more blunt on the money-versus-activism question. “I don’t think [politicians] care about the contributions they get from the NRA,” Burke told Cole. “They care about the piles of mail, these nasty calls and people picketing their state offices.
Cole expounded on this point: “The thing they have, which the rest of us should understand and try to emulate,” he told me, “is that when they put out the bat signal, their members respond.”
THE reason the NRA’s membership is so engaged is simple, Cole said. “They have something tangible they are afraid they’ll lose: their guns.”
That fear, realistic or not, is the fuel that drives the entire engine of the organisation. Kayne Robinson, another former president and executive director of the NRA, was frank with Cole on the necessity of what he calls the threat.
“The threat is the thing,” Robinson told him. “The most important thing in motivating the members is the threat. Understanding the gravity of the threat is what produces action.”
It wasn’t just losing their guns, though. In an analysis of the NRA’s success commissioned by Romero in 2013, one of the primary takeaways is that the NRA invests significant resources in nurturing the NRA “lifestyle” among its members.
It sponsors a huge range of events, teaches gun education and has a large marketing arm to “get people into the ‘club’ and keep them there,” which is vital when the bat signal goes on.Gun ownership is the issue in most NRA members’ lives; it’s central to their perception of who they are.
They see gun control as a threat to their very way of life.To gun-control advocates, that’s a terrible thing, but Cole believes that it is possible to similarly galvanize people who care about civil rights.
Citizens who might not have cared all that intensely about immigration or voting rights might, post-Trump, start getting invested in fights over them, and that in turn might lead to their caring more deeply about the underlying issues. That was his hope, that out of this trying moment for civil liberties might come a more profound awareness of and willingness to devote energy to protecting them.
The NRA analogy wasn’t perfect, but it was useful, Cole said. “We’re obviously different. They’re a single-issue group, and we cover the whole waterfront. Their yearly budget is around $300 million. Ours is bigger this year, but generally it’s been around $130 million.
”Structurally, they’re similar, however. Each group has national offices, a lobbying arm and affiliates in every state. And now, as Cole put it, “we have the threat.”
THE PERSON AT the A.C.L.U. most responsible for getting its members to respond to the threat is Shakir, who joined as national political director on the day of Trump’s inauguration. Before that, he worked as a senior adviser to former Senator Harry Reid, and before that as senior adviser to Representative Nancy Pelosi, the House Democratic leader. (When I spoke briefly on the phone with Reid, he told me: “I’ve been at it a long time, and Faiz is one of the two or three most talented people I ever worked with. He’s special. He’s tireless. He’s very savvy about politics. Did you know he was a star baseball player in college?”)
When I first met Shakir, a month or so after he started the job, I asked if he could imagine anything that would cause Republicans to start peeling away from the president. He smiled and slowly shook his head. “My prediction is that we will see levels of cowardice and cynicism that will be awe-inspiring.
As long as Trump doesn’t start offending the evangelical base or step on a land mine when it comes to Israel, they’re going to let him do whatever he wants.”
The one thing he felt certain of was that “it will be easier for Trump to hurt the people he promised to hurt than to help the people he promised to help.”
For Shakir, that meant there was a chance to reach people and activate them. After taking the job, he set about creating a system, with proper infrastructure and resources and personnel, from which you could call people to action and which other groups could tap into.
“I hired people who know how to do this,” Shakir said, referring to several digital organizers who worked for Bernie Sanders’s presidential campaign.
Whatever you think of Sanders as a candidate, he said, “out of the chaos that was the Bernie campaign was born a structure and a movement of people” — volunteers who then became supervolunteers, who weren’t on the campaign’s payroll but were passionate and trusted and could be depended upon to turn out thousands of people for an event.
In March 2017, the ACLU launched the new platform, called PeoplePower.org. The first call to action was around the creation of what Shakir called “freedom cities.”
“We sat down and thought about what are the power levers that will most hinder Trump’s ability to get things done,” he said.
“And we came to the conclusion that cities and towns across America are our greatest political strength. Effectuating power through city officials is the way we can push back.”
They created a list of “asks” to present to local sheriffs, police commissioners or precinct commanders, and then prepared members with a script of questions to ask: “Do they participate in transporting people on behalf of Immigration and Customs Enforcement? Do they give home addresses to ICE? Do they detain people without judicial warrant?”
The idea was to take the town-hall concept and apply it not to a member of Congress but to local law-enforcement officials, fostering a sense that constituents were invested in these issues and wanted their views represented.
The second major initiative, which the ACLU started last October in Lawrence, Kanzas, was a voting rights campaign called Let People Vote.Ronald Newman, the director of strategic initiatives and a former member of the Obama administration on the National Security Council, worked with Shakir to create geographically targeted campaigns.
“Ronnie and I went to our affiliates and said: ‘You know your state’s issues better than we do. What’s the one thing you desperately want to accomplish when it comes to voting rights?’ ” Shakir said.
The responses fell into four categories: election reform (things like automatic voter registration, same-day voter registration, expanded early voting); rights restoration for citizens who have committed felonies; gerrymandering; and pushing back on voter-suppression efforts like identification cards.
The voting rights campaign was straight out of the NRA’s playbook: long-term advocacy that starts local, focuses on realistic wins that energize the membership and keeps the big picture in mind at all times.“The path to success varies by each state,” Newman said.
“For 70% of them, it’s legislation. In a handful of states, there are ballot measures” — the biggest being the state constitutional amendment on the ballot in Florida this November that would restore voting rights to an estimated 1.4 million felons who have served their time.
“And in some places, the work happens not at the state level but at the county level, so that’s where we have to be involved.”
This focus on voting rights eventually led the ACLU to what has been its most controversial transformation: Getting directly involved in electoral races.
For the group’s entire existence, it has maintained strict rules against endorsing or opposing candidates. To be involved in races at all, even just through issue messaging, smacks of overt political involvement — which could be construed as a drift away from the institution’s role as a strictly non-partisan defender of the US Constitution.
In the report on the NRA that Romero commissioned, the authors write:
“It would be a major change for the ACLU to move into electoral mode, and this would have to be carefully weighed in light of the organisation’s culture.
”And yet the group has long had a lobbying effort in Washington and has always been involved in ballot referendums and deployed volunteers to get out the word on their core issues.Now, the leaders felt, those core issues were at the centre of the storm in the United States, and the ACLU could operate on a scale that had never been possible.“None of that stuff is new,” Romero told me.
“We’ve just never had this much money. In the old days, if we cobbled together $50,000 for a ballot referendum in California, and that was being in the game. Now we’re dropping $5 million in Florida, $3 million in Michigan. We’ll spend close to $10 million on ballot referenda this year.
“What is different,” he went on, “is we’re now looking at down-ballot races and thinking in terms of how we frame civil rights and civil liberties in each election. If you asked the Democratic National Committee to look at our 2018 plan, they would scratch their heads in confusion.
“They would say, Why are you wasting money on states or races that are not in play? But for us the question is: What are the races that allow us to put a spotlight on civil rights and civil liberties? We want to surgically target the down-ticket races and show that getting information to the public and activating a base can have a real impact.”
Last autumn, Shakir and Newman began putting together a list of races with that question in mind.
“There had to be an obvious civil rights and civil liberties story at play in a race,” Shakir said. “If I can’t explain in the first two sentences what of our core issues are at stake in an individual race, then we shouldn’t be involved.”
The earliest test case took place in May 2017 during a Democratic primary for district attorney in Philadelphia. The race represented a rare open seat in one of America’s most heavily incarcerated cities.
Udi Ofer, the ACLU’s deputy national political director, analysed voting patterns and estimated that ACLU members in the Philadelphia area — 11,438 voters — made up roughly a quarter of all the people who vote in primaries there.
They then hired formerly incarcerated individuals to go door-to-door, talking about their experience in prison and mass incarceration. It was a simple message, Romero said: “If you were to cast a meaningful vote in this DA race, here are the issues we think you should consider.” The winner of that primary and ultimately the election was Larry Krasner, whose reform-focused approach to racial discrimination in policing is more or less unheard-of among big-city district attorneys in the US.
“What’s great about this approach is that you have the data,” Romero said. “You can see very clearly whether or not you’re being effective, beyond just the outcome of the race.
We looked at the number of people we made contact with and cross-tabulated that with the voter file.
Then we compared it to voter turnout generally. What impact did we see? Astronomical growth in turnout from the folks whose doors we knocked on.”
Next up was a State Supreme Court race in Wisconsin, in which they sent out hundreds of thousands of scorecards outlining the candidates’ positions on a host of threats to civil liberties — immigration policy, the restriction of access to abortion services, L.G.B.T discrimination.
Rebecca Dallet, the best candidate on civil liberties issues, won by 11½ points.“We stepped up our involvement in Mecklenburg County after that,” Shakir told me, referring to the Democratic primary for county sheriff in Mecklenburg County, N.C., in which the incumbent, Irwin Carmichael, had signed an agreement to help ICE locate undocumented immigrants. The A.C.L.U. paid for a radio ad that aired in the weeks leading up to the primary.
“Sheriff Carmichael works for Trump’s deportation force,” it said, “detaining people for deportation, tearing families apart.” Carmichael’s challengers, it went on to say, “pledge to stop working with Trump’s deportation force.” Carmichael, a strong favorite who had raised significantly more money than his opponents, finished third in the primary.
This month, the ACLU will focus on the county prosecutor’s race in St Louis County, where there is a long history of racial discrimination in policing. The incumbent is Robert P McCullouch, who faced criticism for not pushing to bring charges in the fatal police shooting of Michael Brown, an unarmed black teenager, in Ferguson.
The group is also looking for ways to affect the Arizona Republican Senate primary this autumn.
And in Kansas, where Kris Kobach, the secretary of state, is running for governor, the group has been polling Republican primary and general election voters.
It found that 44 percent of them “have serious doubts” about Kobach as a result of the disregard for people’s privacy inherent in his voter-identification efforts.
“Our own modeling shows there is a slice of conservatives who are happy to hear from the A.C.L.U,” Shakir said. “We want to be talking to them, not just to true-blue, dyed-in-the-wool resisters.”
This level of political involvement, no matter the affiliation, hasn’t settled well with all ACLU backers. In a recent article for The New Yorker by Benjamin Wallace-Wells, Ira Glasser, who preceded Romero as the ACLU’s executive director for two decades, said of the involvement in candidates’ races: “I regard this as a departure which has the capacity to destroy the organisation as it has always existed.”
What the ACLU does, Glasser and others have pointed out, is unique among advocacy groups in America. It is the only one purely committed to defending the constitution. Once you wade into politics, the sanctity of that commitment risks getting stained.
I brought this critique up with Romero.
“These claims of catastrophic damage to the organisation’s future,” Romero said, but then trailed off with a shrug, as if to imply he found it hard to take them too seriously.
“What can I say? Some people don’t like change. Are we endorsing candidates? No. Are we creating a PAC? No. Will we sue the asses off of any candidate who might benefit from our involvement now if they do the wrong thing on civil liberties? Yes.
“Does anyone get a pass from us in the future? Hell, no. What we’re doing is operationalising. Just like the NRA. It’s time. If anything, the ACLU has been too reluctant to involve ourselves in the political process.”
In the 2016 fiscal year, he told me, the budget for its political arm was $37.7m. For the 2018 fiscal year, which ended in March, the budget was $103.6m. The budget for litigation (which also includes education and operations) in 2018 was $122.7m. “The political work is of a commensurate size with the legal work,” Romero said.
“That’s how it should be. The pincers movement is the only way to deliver. People did not give to the ACLU for us to put that money into a bank account. If at the end of this year what I have to show to all of these people rushing to become members of the organisation is a better balance sheet, I’d get properly skewered. Shame on us if we don’t find a way to put that money to use.”
I GOT a text from Gelernt just after midnight on June 27, four days after his call with Judge Sabraw: “We won just now. Reunification ordered for all kids within 30 days. Kids under 5 within 14 days!!”
It seemed impossible. Impossible because hours earlier the US Supreme Court affirmed Trump’s travel ban, a piece of news that had hung over everything like a haze.
And impossible because the unfolding nightmare of these families seemed to exist beyond the reach of rules, a kind of chaos unleashed that couldn’t be contained. But this ruling meant that there was now a pathway to these parents and their children finding one another, and that path led back to a single case, one mother and her child.
It seemed impossible, too, that it was only four months ago when Gelernt first told me about Ms L. Her story is still shocking in its particulars, and it’s worth knowing, I think, because her fate, like the fate of thousands of others seeking asylum, is still undecided.
Nearly a year ago, fearing for their lives, Ms. L. and her daughter, S., who was 6 at the time, fled their small village in the Democratic Republic of Congo. A group of nuns gave them money and food and helped them flee the country. For the next several months, they slept outside most nights or sometimes on the floors of empty buildings they had been pointed to along their route north toward the United States.
They cleaned themselves as much as possible in public restrooms. They scavenged for discarded food from restaurants. When they finally presented themselves at the crossing in San Diego, Ms. L. saw the American flag and told her daughter they were going to be O.K.: “We have arrived.”
This was on Nov. 1, 2017 — months before the government denied it was separating children from their families, then said it was only families who were caught crossing the border illegally, then announced it was all part of a zero-tolerance policy.
Ms. L. entered legally at the port of entry at San Diego. In broken Spanish she had picked up along the way, she told the border agents she was seeking asylum in the United States. The Border Patrol referred her to ICE, and after four days in temporary housing, ICE agents met with her and S. and asked the girl to go with a guard into another room. Once she was gone, they handcuffed Ms. L., who hadn’t committed a crime.
She listened to her daughter beyond the door, screaming and pleading with the guards not to take her away. S. was transported immediately to a facility for unaccompanied minors in Chicago. Ms. L. was detained in California with roughly 1,500 other detainees.
Two weeks later, on Nov. 17, an asylum officer conducted what ICE calls a “credible-fear screening” and determined that Ms. L.’s story met the “credibility threshold,” which would normally mean she could enter the country legally and live with her daughter in a shelter while she awaited a full asylum hearing. Instead, months went by, mother and daughter 2,000 miles apart, each in a place where no one else spoke their native Lingala.
Ms. L. and S. spoke five or six times by phone, but the conversations were torturous for Ms. L., with S. sobbing on the phone and telling her mother how scared she was and her mother having no idea if she would ever see her again. “Chicago meant nothing to her,” Gelernt told me.
“It might as well have been on the moon.” In late January, Ms. L. appeared before an immigration judge without an attorney present. She hadn’t seen S. for nearly three months and was consumed with worry and despair. After questioning her, the judge ordered Ms. L. to be removed from the United States.
Confused by what was being asked of her, she waived her right to contest her removal. When she returned to the detention center and recounted what happened, another detainee asked, “What have you done?” and explained that she was going to be sent to Congo. Ms. L. begged her fellow detainee to write a letter to the judge on her behalf. “Please don’t send me back,” she said.
“I will be killed there.” The night Gelernt told me her story, he was taking a break from writing a brief to be filed in two days, on March 9, amending her case into a nationwide class-action suit. “We just got a bunch of declarations in the last 15 minutes from people who work in detention centers down in Texas. They’re saying they’re seeing hundreds of cases.”
Ms. L. was paroled from detention the following week, a few days before the government’s response was due in her lawsuit. When I asked Gelernt why she had been released, he guessed it was an attempt to act as if her case had nothing to do with a policy of family separation.
At the time, the government’s justification for separating Ms. L. and S. was that it needed to verify that Ms. L. was neither a child trafficker nor an abusive parent, though both of those things could have been ascertained quickly and without separating them.
A few days after she was released, Ms. L. traveled with an A.C.L.U. staff member from San Diego to Chicago. She was terrified to make the trip, certain that she would be arrested in the airport and sent back to Congo without ever seeing S. again. I met her briefly the next day, in a shelter on the outskirts of the city. Gelernt had gotten assurances from the government that Ms. L. and S. would be reunited, but he didn’t know when.
She sat on a worn sofa in the shelter’s common room, wearing sweatpants and a thin sweater and plastic flip-flops, her face gaunt beneath tight braids. She kneaded her hands and looked into her lap as Gelernt asked her what S.’s favorite foods were, what color clothes she would like, what toys she might want to play with when they were finally together again. “Frozen,” Ms. L. whispered.
There were some creased, printed-out photos of her and S., taken before they fled Congo, spread out on a pool table at the end of the room. In one, Ms. L. smiles at the camera while S. sits behind her braiding her hair. You can recognize her in the pictures, the same softness in her eyes, the long, strong hands. But the woman in the room was, I would guess, 50 or 60 pounds thinner than the woman in the photographs.
Before we said goodbye, we stood next to the pool table looking at the pictures. I remarked on how beautiful S. was, and she slowly ran a finger over her daughter in the photo, then gathered the papers up and slid them into a manila folder that she held against her chest.
The next night, after I left, they were reunited in the shelter. I’ve spoken with Gelernt several times about the moment of their reunion, what he called the most emotional thing he’d experienced in 25 years of doing immigration work. Ms. L. stood near him waiting for her daughter on a worn marble staircase just inside the shelter’s front door. When the door swung open, she crouched and stretched her arms wide. S. stepped through the doorway and saw her, and the most beautiful smile spread over the girls face, Gelert said.
She toppled forward, and Ms. L. gathered her in her arms and fell back onto the marble stairs. The look on her face as she held her daughter was almost too emotional to witness. For the next minute they lay there, clinging to each other and rocking from side to side. The only sound in the hall was a low, rhythmic moan, punctuated by S.’s higher-pitched cry.
Eventually they sat up and walked up the steps and settled on a bench in the shelter’s hallway. After a few minutes, Ms. L leaned toward S. and spoke to her in Lingala, then pointed to Gelernt, and S. stood up and walked over to him and wrapped her arms around his waist.
“There are times when this work is so tiring,” Gelert said. ‘’But something like this, if people could only see this, I think it could change the way some of them think about these issues. This isn’t abstract policy, this is a mother and a daughter who have been through more than we can imagine. It was the rawest possible emotion,” Gelernt said.
Three days later, the immigration judge who ruled that Ms. L. would be deported denied the motion to reopen her case. “It’s horrific,” Gelernt told me. “It’s obviously going to be appealed.” As of now, they’re awaiting a decision on that appeal. Gelernt told me that S. is doing a little better, going to school in the day with some other kids in the shelter.
Ms. L. remains terrified that ICE agents will show up there to take her away, or take S. away, and that she’ll be sent back to Congo and what she says and the government has agreed is certain death.
It’s unclear whether the US government will comply with Judge Sabraw’s ruling and begin the process in earnest of reuniting the families that have been separated.
It’s possible the Trump administration will appeal the decision, possible even that it could go to the Supreme Court in a special summer hearing.
When I spoke with Gelernt the morning after the ruling, he described the process by which the ACLU and others would monitor and verify, and then, if the US government wasn’t abiding by the decision, go back to the judge and sue it for noncompliance.
“This is the fight now,” he said. “We can’t give up on these kids.”
As Romero predicted in the first weeks of Trump’s presidency, the ACLU has never been able to savour a victory for long. On June 27, Justice Anthony Kennedy announced he would be retiring from the Supreme Court, giving Trump an opening to nominate someone who could steer the court hard to the right for decades to come.
It was catastrophic news for the group’s members and donors, and it threatened many of the civil liberties that Romero and his lawyers have fought so hard to protect: Abortion rights, voting rights, labour rights.
I got an email from David Cole the next morning. “So now Kennedy’s gone. Very disturbing.”
I’d begun thinking about this story a year and a half ago, when I met Cole just before the inauguration. He exuded empathy and fierce intelligence in equal parts. During our first conversation, I asked him about what he expected out of the next four years, and I thought he would say that even a court this conservative would provide a bulwark against assaults on the constitution and civil rights, that it would fully exert the power of its branch.
Instead, he said: “The courts won’t save us.” It’s not that they wouldn’t do their jobs. He had faith for the most part that they would. And groups like the ACLU and others would do their jobs, too. “The question is, will the rest of us do ours?”
I’ve checked in with him several times over these 18 months to take his emotional temperature. Always it’s a soft-sold optimism, and always it’s tempered by the question of whether Americans can summon the anger, energy and empathy, the love, even, to care enough about the suffering of other human beings to be willing to work on their behalf.
“I remain confident we’ll find our way,” Cole always says.
Or, “I believe we’ll look back on this moment, and it will be the moment in which we saved the country from its worst self.” Or, “If I’m betting, I’m still betting that justice wins out.”
When I asked him where his equanimity and optimism came from, he laughed and said it wasn’t that he was born hopeful, it’s that he’s been in the fight for a long time.
You learn to absorb defeats, and you recognize that change comes incrementally, that the dam only ever breaks after sustained, constant pressure.
“I fundamentally believe that hope is more the consequence of action than its cause. It seems to me you have two choices in this life: You can be a fatalistic spectator, or you can engage and produce hope. If those are the two choices, there is really only one choice.”
Joel Lovell is the executive editor of Pineapple Street Media.