Trayvon Martin's death is highlighting one of the ACLU’s biggest challenges once more. Zimmerman case: ACLU's déjà vu

The American Civil Liberties Union is experiencing some uncomfortable déjà vu.

George Zimmerman’s acquittal in the shooting death of black teenager Trayvon Martin has triggered the specter of an awkward and often raucous debate the group thought it had put behind itself two decades ago.


After the 1992 acquittal of Los Angeles police officers in the videotaped beating of African-American Rodney King, ACLU leaders split sharply over the possibility of a federal trial for the officers. The group eventually suspended its policy opposing double jeopardy — only to reverse itself the following year.

( PHOTOS: George Zimmerman trial)

A New York Times editorial back then called the ACLU “torn by internal disagreement.” A Boston Globe column described the organization as “twisting itself up in knots.”

The heated debate highlighted one of the ACLU’s challenges: It is perhaps the nation’s foremost advocate for civil liberties — but it also has a long history advocating for civil rights.

More than 20 years later, President Barack Obama’s comments reacting to the Zimmerman verdict dwelled on race while calling for respect for the trial process and the jury verdict.

( WATCH: Obama's full remarks on Zimmerman verdict)

“The judge conducted the trial in a professional manner,” he said Friday. “The juries [sic] were properly instructed that in a case such as this reasonable doubt was relevant, and they rendered a verdict. And once the jury has spoken, that’s how our system works.”

Meanwhile, the ACLU’s first public reaction drew notice in some quarters for leaning heavily toward racial justice — while staying silent on civil liberties and due process in the Florida case.

“Last night’s verdict casts serious doubt on whether the legal system truly provides equal protection of the laws to everyone regardless of race or ethnicity,” ACLU Executive Director Anthony Romero said in a statement on July 14, the day after the Florida jury’s verdict. “This case reminds us that it is imperative that the Department of Justice thoroughly examine whether the Martin shooting was a federal civil rights violation or hate crime.”

( Also on POLITICO: Obama weighs in on race, reluctantly)

The statement went on to call for additional federal guidance on the use of race in law enforcement and for a new federal law aimed at ending racial profiling.

But it was the specific reference to an “imperative” for DOJ to investigate under criminal statutes — an apparent endorsement of the calls of many civil rights activists and groups for a federal prosecution of Zimmerman — that threatened to reopen old wounds.

That call came even though the ACLU’s long-standing policy, restored in 1993 after the King debate, explicitly rejects such an option. “There should be no exception to double jeopardy principles simply because the same offense may be prosecuted by two different sovereigns,” the policy says.

( PHOTOS: Trayvon Martin rallies)

Romero’s statement stirred concern among some civil libertarians that in a rush to join the chorus of outrage over the Zimmerman verdict, the group had turned its back on the policy it settled on two decades ago.

In an apparent attempt to stem the controversy, a top ACLU official wrote to Attorney General Eric Holder on Thursday to make clear that the group does not favor a second prosecution of Zimmerman in federal court.

“We are writing to clearly state the ACLU’s position on whether or not the Department of Justice (DOJ) should consider bringing federal civil rights or hate crimes charges as a result of the state court acquittal in the George Zimmerman case,” Laura Murphy, director of the ACLU’s Washington office, wrote.

( WATCH: President Obama’s full remarks on Trayvon Martin)

“The ACLU believes the Double Jeopardy Clause of the Constitution protects someone from being prosecuted in another court for charges arising from the same transaction. A jury found Zimmerman not guilty, and that should be the end of the criminal case,” she wrote.

Attorney General Eric Holder has said the Justice Department’s Civil Rights Division is continuing to investigate Martin’s shooting — and the department has even set up an email address to gather information about the case. However, Obama suggested Friday that those upset about the verdict would be unwise to expect a federal prosecution.

“I think it’s important for people to have some clear expectations here,” Obama said. “And law enforcement is traditionally done at the state and local levels, not at the federal levels.”

Romero, who provided Murphy’s letter to POLITICO, said Thursday there was no intent to change or depart from the double jeopardy policy.

“I think there are real serious concerns about going back on the double jeopardy policy. It is a slippery slope that if you allow the government to prosecute individuals for one crime and then fail and try again, it creates the wrong incentives for the criminal justice system,” Romero said in an interview on the outskirts of the Aspen Security Forum.

Romero acknowledged that cases like that of Trayvon Martin sometimes prompt disagreements within the organization, and often put the group at odds with other civil rights groups.

“Good civil libertarians will differ on this issue, like a lot of our issues that divide the membership or the leadership whether it’s campaign finance or whether it’s civil rights prosecutions after a failed trial,” he said. “The unique part of the ACLU is that we have to balance some of the concerns that we have that are long-standing, deep-seated values like racial justice against broader concerns about the administration of justice.”

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Romero’s critics see the statement as part of a pattern of incidents in which the ACLU has departed from or muddied its long-standing civil liberties positions, often in an effort to accommodate liberal interest groups like abortion rights and gay rights advocates.

“It’s just astonishing to me that a statement like that could go out without any understanding that they were violating their own policy,” said Ira Glasser, who served as executive director of the ACLU from 1978 to 2001. He called the letter a symptom of “the transformation of the ACLU from a civil liberties organization to a liberal bandwagon organization.”

“The ACLU’s almost unique mission is to stand against the tide of turning Zimmerman and the verdict into the opportunity to be a symbol of everything that’s wrong with race and our criminal justice system in our country. Not only didn’t they stand against the tide, they increased the tide,” he added. “I was very unhappy with it.”

Glasser said he approved of Thursday’s letter, adding that it “is what the ACLU should have said from the beginning.” However, critics noted that the statement received widespread attention and remains on the group’s website.

Former ACLU board member Michael Meyers said he was also troubled by Romero’s initial statement.

“The ACLU is out of line; a civil liberties organization is concerned with the accused getting a fair trial, which includes the right of effective counsel, due process and protection against double jeopardy,” said Meyers, who was voted off of the ACLU board in 2005. “No government, much less an angry community, is entitled to a verdict to their liking.”

“The ACLU is not the NAACP; the ACLU is the guardian of individual liberty, not a victims’ rights or racial grievance group.”

Critics of the current ACLU leadership say the organization’s mishandling of the Martin case is not limited to one press statement issued on a Sunday morning. They also accuse the group of being too quick to portray the incident as racial profiling before all the facts were in.

While some posts on the group’s site carry titles like Justice for Trayvon, at least one statement from 2012 called for due process for Zimmerman. He “has all the rights of every defendant charged with a crime, including a legal presumption of innocence until proven guilty,” ACLU of Florida Executive Director Howard Simon said.

While Meyers opposes a second prosecution of Zimmerman, the former board member acknowledged that in the King discussion two decades ago, he favored making an exception to the ACLU’s policy. Meyers said the two positions are consistent because violence by police raises greater concerns that could merit federal prosecution.

As in the nation generally, the King debate was racially polarizing within the ACLU — at least to an extent. At the board meeting when the group decided to stick with its long-standing anti-double jeopardy policy, all the African-American board members voting dissented.

“All the blacks were united,” recalled Meyers, who is black.

Glasser said he recalls “very vigorously” opposing the double jeopardy exception Meyers and others were backing. The former ACLU director said the debate was impassioned and well-known among the group’s leaders but not as bitter as some other internal ACLU showdowns.

“Its was not one of the disputes that rended the organization” like the ACLU’s backing of the right of Nazis to march in Skokie, Ill., he said. “It was a spirited, civil debate.”

“I know it was a vigorous debate. There were strong opinions on both sides,” said Romero, who was not involved with the group at the time but recently reviewed minutes of the 1993 meeting.

The ACLU’s position on the double jeopardy issue is largely one of principle and public rhetoric. The Supreme Court has ruled consistently since 1907 that simultaneous or successive prosecutions by the state and federal authorities don’t violate the double jeopardy clause, but the group has long resisted that view. (A petition is pending with the justices asking them to revisit the issue.)

”At the end of the day, our role in any of these debates — whether it’s the Rodney King trial or the Trayvon Martin case — is really commentary,” Romero said.

However, the position has affected the group’s legislative advocacy. Prior to the passage of the federal hate crimes law in 2009, the ACLU lobbied for a section that requires a federal prosecution following a state prosecution to be approved by a high level Justice Department official for one of several reasons laid out in the statute.

”During the debate on the hate crimes laws, we expressed our concern and we worked to get something in there about double jeopardy,” Murphy said in an interview. “I don’t think would have happened without the ACLU’s advocacy.”

Romero rejected claims that the ACLU is unwilling to part company with liberal interest groups. He said the ACLU has had disagreements with women’s groups over photographing women visiting abortion clinics and with gay advocates over virulently anti-gay protesters.

“We’ve often had different points of view with our Planned Parenthood colleagues. … We’ve had clashes with gay rights groups,” he said. “It’s part of what makes the ACLU such a distinct player in these fields.”