Vermont’s ACLU Director is Sounding the Alarm About Government Intrusion. Is Anyone Listening?
Allen Gilbert has been thinking a lot about drones lately. Not the ones that rain Hellfire missiles on militants in remote parts of the Middle East and Asia. But spy drones that could monitor the movements of Vermonters — and, indeed, of all Americans — here at home.
“I think we’ll have drones flying overhead in Vermont within a year,” predicts Gilbert, executive director of the American Civil Liberties Union of Vermont.
Think he’s crazy? Gilbert notes that the federal government is already using surveillance drones to patrol the northern border; he points to a news report from North Dakota about a local sheriff who “borrowed” a U.S. Border Patrol drone to track down some cattle thieves. Gilbert believes it’s “only a matter of time” before a Vermont law enforcement agency makes a similar request of the feds.
Gilbert even has a theory about how drones will debut in Vermont and win over a potentially skeptical public. The first use will be a search-and-rescue operation, he predicts, and when the aircraft locates a lost hiker or skier, everyone will say, “Oh, my God, a drone saved somebody’s life.”
Gilbert is worried about the privacy implications of being watched from above, and he’s been sharing those concerns with state lawmakers in Montpelier. At least one appears to be listening: Rep. Kevin “Coach” Christie (D-White River Junction) plans to introduce legislation that would regulate drones in Vermont by requiring police to obtain a warrant before using one to monitor the public.
A far more common reaction, Gilbert says, has been, “Oh, it’s the ACLU again, creating some paranoid scare scenario.”
Gilbert has grown accustomed to such pushback in the nine years since he took the helm of Vermont’s ACLU affiliate. During that time, the 61-year-old with the close-cropped beard has warned Vermonters of new technologies that let the government collect ever more information about its citizens: automated license-plate readers, facial-recognition software and soon, possibly, drones.
“Over the last 10 years, Vermont has been transformed into a state where we are being watched,” Gilbert wrote in the Vermont ACLU’s 2012 annual report. “Vermont, with little or no public discussion or acknowledgment, has become a surveillance society.”
Now state lawmakers are finally taking an interest in these issues — owing in large part to Gilbert’s lobbying skills. More than anyone else, the mild-mannered advocate has watchdogged the police and other public officials in the name of accountability. He’s not a lawyer, but Gilbert has a mastery of the law — and an ability to render it understandable — that has made his opinions the “gold seal of approval in Vermont when it comes to civil liberties,” according to Senate Majority Leader Phil Baruth (D-Chittenden).
It can be a lonely job.
“It’s usually Allen versus the arrayed army of the other side,” observes Baruth. “Typically he is the one voice defending the civil liberties aspect. Then he faces off against all law enforcement.”
On Gilbert’s watch, the Vermont ACLU has racked up some notable court victories. It won a settlement from the Wildflower Inn in Lyndonville after the owners refused to host a same-sex wedding reception, a violation of Vermont’s public accommodations act. It forced Franklin to drop its opening prayer at town meeting after resident Marilyn Hackett complained about the lack of church-state separation.
The road to legislative triumphs has been bumpier. The ACLU has scored some Statehouse wins — partially reforming Vermont’s notoriously weak public records law, for instance — but other efforts have fallen short. Its call for a moratorium on police use of Tasers following the death of a man tased by a state trooper was dismissed out of hand by the governor and his public safety commissioner. And Gilbert’s proposed remedy for a rash of police misconduct — that all officers be licensed and regulated, like scores of other professions in Vermont — has hit roadblocks.
“At times, the advocacy efforts have felt like driving on a dirt road in mud season,” Gilbert wrote in the same annual report. “You try hard to keep moving straight ahead, but the soft ground pulls and throws you in haphazard directions.”
Gilbert’s explanation for the slow pace of change: Vermonters are inherently trusting of public officials in positions of authority. Neither embezzlement scandals nor shootings involving police — and there have been plenty of both in Vermont during Gilbert’s tenure — seem to have shaken that resolve.
“You don’t have to distrust everybody. But shouldn’t we have at least a few things in place to make sure that things really are on the up-and-up?” Gilbert asks. “Vermont’s in denial about the standards of interactions that sometimes take place.” The sentiment, he says, often seems to be: “Everything is fine. Complaints about how things are operating really don’t have merit.”
Attorney General Bill Sorrell, whose office has tussled with the ACLU on numerous occasions, believes Vermont doesn’t have a pervasive law-enforcement problem. In his view, the ACLU questions authority mostly because that’s its job. “They’re an advocacy organization, and so that’s the role that they play,” Sorrell says.
Public Safety Commissioner Keith Flynn disputes Gilbert’s claim that Vermont has become a surveillance society — or that police are unaccountable to the public. The state has no plans to start using drones, according to Flynn, and he says he has no idea whether the feds are currently flying them over Vermont.
But the law-enforcement chief admits there’s nothing far-fetched about it. “I don’t think it’s a stretch of anyone’s imagination that drones could play a meaningful role in search-and-rescue operations,” he says.
Such remarks make Gilbert think he’s on to something.
“People can call you paranoid about how drones are going to be used,” he says. “But I think in five or 10 years, people are going to say, ‘I wish we had done more sooner.’”
Birth of a civil libertarian
No single event set Gilbert on his Constitution-defending crusade, but several experiences were formative.
The youngest of four boys, he was raised in Boyertown, a small town in Pennsylvania Dutch country that was once home to the world’s largest casket factory. His parents were public-school educators who met in the 1930s at a national conference of the YMCA, a progressive organization for its time that came under investigation by the House Committee on Un-American Activities.
American history runs like a river through Gilbert’s life and motivates his work with the ACLU. In the early 1970s, he majored in the subject at Harvard, where he met presidential historian Doris Kearns Goodwin. Then employed at Harvard’s Kennedy School, she placed Gilbert and six other students as volunteers one summer with a Democratic congressional campaign outside Pittsburgh. One of Gilbert’s companions on that trip was a good friend of his future wife, Vermont Legal Aid attorney Lila Richardson.
After college, Gilbert and a friend spent six months riding buses and ferries and hitchhiking through South America — a trip that gave him new appreciation for his homeland. While sleeping in a small town in Chile, in 1974, Gilbert and his companion were awoken by armed police who came into their room and began rifling through their belongings. Gilbert was not fluent in Spanish, but his friend was and talked their way out of the tense situation.
“That made me look at America in a different way I hadn’t before,” Gilbert says during an interview at the ACLU’s bare-bones office on Elm Street in Montpelier. “Going to South America showed me that America may be capable of making grossly bad mistakes in judgment, but it didn’t necessarily mean it had to continue. There was a way for society to correct itself.”
Gilbert ended up in Vermont via another friend, who landed him a reporter’s job at the Rutland Herald in 1976. Gilbert’s beat: the cops. Today, the frequent critic of police recalls that most officers he met on the beat were “amazing human beings” who had “tough jobs.” But stories he heard about Paul Lawrence — a corrupt narcotics cop who was found to have planted drugs on literally hundreds of suspects in the 1960s and ’70s — made a lasting impression.
“That was chilling,” says Gilbert, who went on to work as an editor for the Herald and Barre-Montpelier Times Argus. “I didn’t think cops acted that way.”
Appropriately, Gilbert’s first experience with the ACLU was through a lawsuit. While running a media consultancy called PressKit, Gilbert served on the school board in the Vermont town of Worcester, whose schools were threatened with closure because the facilities were deemed inadequate. “Special ed kids were literally meeting with teachers or para-educators in bathrooms,” he recalls.
Gilbert persuaded the board members to become co-plaintiffs in an ACLU school-funding lawsuit against the state, the outcome of which led to the 1997 passage of the Act 60 public-school funding law.
“I was really impressed that a bunch of volunteer lawyers did this all pro bono,” he says. “In most states, these cases were costing between $500,000 and $1 million.”
Gilbert’s next big revelation came in Germany, where he moved with his wife in 1983 to teach American studies to young Germans. One classroom discussion centered on President Reagan’s visit to Bitburg cemetery — where members of the Nazi SS are buried — and Gilbert asked students what their Jewish friends thought about the controversial visit.
“There was dead silence,” Gilbert remembers. Finally, a young woman spoke up: “Herr Gilbert, I met a Jew once when I was studying abroad in England. My mother gave me the name of a woman who, as a young child, had lived in our town but whose family left Germany in the 1930s.”
“I was stunned to think, of these 15 or so students, only one had ever even met a Jew,” Gilbert says. “Forget whether these young Germans may or may not be prejudiced against Jews. The fact of the matter was, there weren’t any Jews in Germany anymore to hate. That was more than chilling.”
Two decades later, Gilbert was invited to travel back to Germany with an American Jewish woman who was returning for the first time to the small town where she had spent the first eight years of her life. At a museum there, she found a memorial wall with names of locals who perished in the Holocaust. Gilbert recalls that she recognized almost every name on the list.
“Then she stopped and nearly choked. She had come upon her own name,” he says. When her family disappeared from Germany, it was assumed they had ended up gassed like so many others. In fact, the family had fled to Colombia and later to America. The experience left Gilbert with what he calls “one of the emptiest feelings I’ve ever had.”
To this day, Gilbert says those memories remind him why his work for the ACLU matters.
“It is impossible for me to think about issues such as the suspension of habeas corpus, as we have recently seen in this country, without thinking about where disregard of the rule of law can lead,” Gilbert says. “The experiences I was able to have are a major reason I do the work I do.”
“It’s Alice in Wonderland time”
During the legislative session, Gilbert’s work often consists of sitting in committee rooms while politicians slog through the arduous process of lawmaking. Sometimes he’s there to promote the ACLU’s agenda. But often he’s just playing defense, shooting down bad ideas before they have a chance to take root and become law.
On a recent Thursday morning, the ACLU director was seated near a window in the House Judiciary Committee room for a hearing on a bill that would expand access to police records in criminal investigations. Vermont’s public-records law is among the weakest in the nation, and Gilbert and the ACLU have made lifting that veil of secrecy a priority over the past few years.
Gilbert is a stalwart advocate of personal privacy rights, but he says Vermont’s public-records law takes them too far. The law permanently shields police records from public scrutiny in the name of protecting the innocent, even after every suspect and witness in a particular case is dead. Gilbert wants the House to pass, with minor modifications, a Senate-approved bill, S.148, that adopts the federal freedom of information standard. That says that government records are presumed open absent a specific harm their release could cause.
During the hearing, a lawyer for the Department of Public Safety said something that made Gilbert chuckle. She asserted that state agencies actually have discretion to release criminal case files when officials determine they’re not too sensitive. Under the current public-records act, police records are “categorically” exempt from disclosure — and a 2012 Vermont Supreme Court ruling interpreted that to mean the government has no such discretion. Now a government lawyer was averring the opposite.
“It’s Alice in Wonderland time,” Gilbert commented during a break in the action with enough volume to be audible but not command attention. “Down the rabbit hole.”
Public access to records may not seem like a typical ACLU issue, but Gilbert says it fits into the organization’s broader work on police accountability. How can the public, or the ACLU, know whether an officer violated someone’s civil rights if they can’t access video, audio and written documentation of an incident?
Case in point: The attorney general’s office still hasn’t released its report on the police-involved death of Macadam Mason, the behaviorally disabled Thetford man who was killed last year after a state trooper fired a Taser into his chest. Sorrell ruled the shooting justified but has withheld his detailed investigative report because Mason’s relatives are suing the state police for wrongful death.
“Meanwhile, the rest of us are sitting here wondering: Should the cop be charged with manslaughter in this case, or was he really justified?” Gilbert says.
Fighting for the public’s right to know has made Gilbert a hero to the Vermont media. Last year, the Vermont Press Association honored Gilbert with its highest honor, the Matthew Lyon Award, for his lifelong commitment to the First Amendment and for helping to pass a law that allows the public and news media to recoup attorneys’ fees when they sue a government agency for records and win.
But in the legislature, Gilbert may be swimming upstream. At last week’s House Judiciary hearing, Rep. Richard Marek (D-Newfane) said he worried that releasing criminal case files could provide the “apprentice criminal” with details about how to pull off crimes. Another lawmaker worried aloud about innocent people getting a “bad deal” if police officials forgot to redact their names from reports before releasing them. In other words, innocent Vermonters might be dragged through the mud.
In an interview, Gilbert contends those fears are unfounded. He says 40 years of federal case law define what constitutes invasion of privacy which police could still invoke to deny records requests and would guide Vermont law if legislators adopted the federal standard on access to public records. “We’re not reinventing the wheel here,” he says.
Gilbert was prepared to tell the House Judiciary Committee all that, but he never got the chance. Government lawyers and police chiefs spent more than three hours in the witness chair, and the hearing broke for lunch before Gilbert could testify. Committee chair Rep. Bill Lippert (D-Hinesburg) offered Gilbert a rain check but no set date.
All Gilbert could do was shrug and move on to the next hearing. “I’m used to it,” he said.
“It’s not enough to be outraged”
The Vermont ACLU takes on a lot of hot-button issues, but its leader would never be described as a firebrand. You’re more likely to find Gilbert quietly chatting up lawmakers in the Statehouse’s marbled corridors than leading a protest march or shouting through a bullhorn.
Those who know him say this style is what makes Gilbert effective — and credible. Robert Appel, an ACLU board member and the former director of the Vermont Human Rights Commission, credits Gilbert’s “understated” approach with helping scuttle a bill last year that would have given police warrantless access to a statewide prescription-drug database.
“I think through Allen’s tenacity and advocacy skills he was able to convince key legislators and committees this was not a place that Vermont wants to go,” Appel says. “He’s very persuasive, very smart and hard to dismiss, even with his low-key delivery.”
Dan Barrett, the Vermont ACLU’s staff attorney and its only other full-time employee, says his boss resembles the mythical “reasonable man” used in federal court cases to describe someone who “always behaves in a rational and courteous way.”
“He doesn’t honk at pedestrians or give people the finger,” says Barrett, who has worked with Gilbert for five years. “He’s sort of a good compass in that regard.”
Baruth, the Senate majority leader, says Gilbert was instrumental in defeating a bill this session that began as legislation blocking employers from demanding job applicants provide passwords for Facebook and other social-media accounts. Somehow it morphed into an “employer’s-rights bill.”
“Allen was the person in the witness chair who pushed back hard on that,” Baruth says, and adds that the bill went nowhere as a result.
For his part, Gilbert says he’s honed his facts-based approach over years of doing battle in committee hearings and courtrooms. That track record includes some notable legal victories, such as the case of Zach Guiles, a 13-year-old from Williamstown who was told in 2004 that he couldn’t wear to school a T-shirt critical of George W. Bush that contained references to the president’s past drug use.
But the ACLU has lost some big ones, too, such as a post-9/11 case that challenged random government searches by the Coast Guard on ferries crossing Lake Champlain.
Gilbert explains that the ACLU considers three factors when deciding whether to pursue a lawsuit: Is it a civil-liberties issue? Is it a case that will benefit a whole class of people? And, is there a reasonable chance of success? The ferry-search case certainly satisfied the first two criteria, but Gilbert and the ACLU’s volunteer legal advisers weren’t convinced the case was winnable. Losing could be worse than doing nothing at all, since it might establish a harmful precedent.
In the end, the ACLU decided to sue anyway, because, as Gilbert puts it, “This is why we exist as an organization. Nobody else is fighting the government.” As feared, the ACLU lost the case on appeal, and that decision has already been cited several times as justification for the government to conduct searches without probable cause.
Gilbert’s takeaway: “It’s not enough to be outraged by an action taken by the government that you think is unfair or even unconstitutional. You have to be able to take that outrage and win your point, whether it be by legislation or litigation.”
Whom has Gilbert himself outraged? He says he was verbally abused outside Burlington’s federal courthouse for opposing the death penalty for convicted murderer Donald Fell. He’s also saved a few phone messages that were especially threatening. That comes with the territory, he says. The ACLU has long defended the due-process rights of despised individuals, and vitriol frequently follows.
But it’s hard to find anyone in the Montpelier establishment who doesn’t respect Gilbert and his work. Will Lindner, who was a partner in Gilbert’s now-defunct media consulting group PressKit and now serves on the ACLU board, says Gilbert was occasionally conscientious to a fault. “Sometimes he overreached,” Lindner recalls of Gilbert’s work with PressKit’s nonprofit clients. “There were times when clients reacted negatively,” because Gilbert offered more advice than they were seeking.
That’s about as critical as it gets. Even Gilbert’s frequent adversaries say they respect the role he plays.
“He’s got a tough job,” Sorrell says. “It’s hard to always be fighting against the powers that be and questioning the motives of public officials.”
Of course, praise is easier to dish out when you’re on the winning side, as Vermont law enforcement almost always is.
Gilbert’s immediate predecessor as ACLU director, Montpelier lawyer Benson Scotch, tries to keep a healthy distance from his old job. But he says he hears enough to know that his successor is making a difference in Vermont.
“I know the people that work with him respect him a great deal,” Scotch says of Gilbert. “He’s a young guy still. And he better not be thinking about taking any other job anytime soon.” There are too many things to be “paranoid” about.
The original print version of this article was titled "Allen Gilbert Wants You ... to hold government accountable"