Dissension in the ACLU

To the Editors:

Andrew Kopkind should be congratulated for his excellent reporting of the Levy court martial which took place in Columbia, South Carolina in May and June [Doctor’s Plot, June 29, 1967]. But I hope you will permit me to correct one inaccurate inference drawn by him. Mr. Kopkind suggests dissension within the ACLU influenced Charles Morgan’s judgment, as trial counsel for Levy, as to what evidence to introduce on the “war crimes” defense which the chief law officer had ruled he might offer.

Disagreement or dissension within an organization that sponsors litigation is nothing new, at least not within ACLU experience. Ours is an organization of 100,000 members, who through their elected branch and national Boards of Directors express many different points of view on the intensely controversial issues in which the Union intervenes.

Once a decision is made to offer legal representation, dissension and disagreement may continue, but the attorney handling the case takes on a special responsibility. His duties are to the client to which the organization has brought him and to the court. An organization that sought to sponsor litigation and then influence the tactical decisions of its attorneys when they represent individual litigants, would have to get out of the business. Attorneys of Charles Morgan’s courage and integrity would leave the organization, and courts would lose respect for it.

There were sound tactical reasons for offering only the evidence which Morgan did offer on “Nuremberg Day.” I am personally confident that only tactical and legal considerations weighed in the exercise of his personal judgment.

John de J. Pemberton, Jr.

Executive Director

American Civil Liberties Union

New York City

Andrew Kopkind replies:

All the reporters, the friends of the defense, the observers and the hangerson at the Levy trial knew that Chuck Morgan was having his troubles with the ACLU establishment (which is not to say the excellent ACLU staff). The dissension within the organization which Mr. Pemberton says is “nothing new” was indeed real. Many ACLU directors were worried about the defense of Levy’s right (if such it was) to refuse to participate in a war he considered immoral. Morgan reportedly had to battle for ACLU approval of that line; at one point he even threatened to resign as ACLU counsel if he were not allowed to raise it. The ACLU as a whole apparently never felt easy about the defense of “personal moral responsibility.” In its July newsletter, Civil Liberties, the organization presents a singularly chicken-hearted account of the issues of the trial. The headline is: “Union Fights Army, Defends Levy’s Free Speech Right.” The lead paragraph says the charges against Levy arose “out of his verbal opposition to the Viet Nam war.” One has to read quite a bit further to realize that the major charge concerned disobeying an order, and the article completely skirts what to the ACLU lawyers and everyone else there was the overriding issue: Is an individual soldier responsible for his actions? In other words, the Eichmann question. The ACLU says of that:

The Union has taken no position on these issues [and the attorneys did not commit the Union to a position]. These issues were raised because in the professional judgment of the attorneys they were important to Levy’s defense. The arguments were advanced in accordance with the civil liberties principle that every defendant is entitled to raise every legally available defense….

That may be good public relations and clever tactics, but it was the kind of position that put heavy pressure on the ACLU lawyers, especially Morgan. It was my judgment that it affected his handling of the “Nuremberg” issue, and there was a great deal of evidence from Mr. Pemberton’s colleagues that it did.