The ACLU, Prior to COVID, Denounced Mandates and Coercive Measures to Fight Pandemics

by Glenn Greenwald

The American Civil Liberties Union (ACLU) surprised even many of its harshest critics this week when it strongly defended coercive programs and other mandates from the state in the name of fighting COVID. “Far from compromising them, vaccine mandates actually further civil liberties,” its Twitter account announced, adding that “vaccine requirements also safeguard those whose work involves regular exposure to the public.”
 
If you were surprised to see the ACLU heralding the civil liberties imperatives of “vaccine mandates” and “vaccine requirements” — whereby the government coerces adults to inject medicine into their own bodies that they do not want — the New York Times op-ed which the group promoted, written by two of its senior lawyers, was even more extreme. The article begins with this rhetorical question: “Do vaccine mandates violate civil liberties?” Noting that “some who have refused vaccination claim as much,” the ACLU lawyers say: “we disagree.” The op-ed then examines various civil liberties objections to mandates and state coercion — little things like, you know, bodily autonomy and freedom to choose — and the ACLU officials then invoke one authoritarian cliche after the next (“these rights are not absolute”) to sweep aside such civil liberties concerns:

[W]hen it comes to Covid-19, all considerations point in the same direction. . . . In fact, far from compromising civil liberties, vaccine mandates actually further civil liberties. . . . .
 
[Many claim that] vaccines are a justifiable intrusion on autonomy and bodily integrity. That may sound ominous, because we all have the fundamental right to bodily integrity and to make our own health care decisions. But these rights are not absolute. They do not include the right to inflict harm on others. . . . While vaccine mandates are not always permissible, they rarely run afoul of civil liberties when they involve highly infectious and devastating diseases like Covid-19. . . .
 
While limited exceptions are necessary, most people can be required to be vaccinated. . . . . Where a vaccine is not medically contraindicated, however, avoiding a deadly threat to the public health typically outweighs personal autonomy and individual freedom.

The op-ed sounds like it was written by an NSA official justifying the need for mass surveillance (yes, fine, your privacy is important but it is not absolute; your privacy rights are outweighed by public safety; we are spying on you for your own good). And the op-ed appropriately ends with this perfect Orwellian flourish: “We care deeply about civil liberties and civil rights for all — which is precisely why we support vaccine mandates.”
 
What makes the ACLU’s position so remarkable — besides the inherent shock of a civil liberties organization championing state mandates overriding individual choice — is that, very recently, the same group warned of the grave dangers of the very mindset it is now pushing. In 2008, the ACLU published a comprehensive report on pandemics which had one primary purpose: to denounce as dangerous and unnecessary attempts by the state to mandate, coerce, and control in the name of protecting the public from pandemics.
 
The title of the ACLU report, resurfaced by David Shane, reveals its primary point: “Pandemic Preparedness: The Need for a Public Health – Not a Law Enforcement/National Security – Approach.” To read this report is to feel that one is reading the anti-ACLU — or at least the actual ACLU prior to its Trump-era transformation. From start to finish, it reads as a warning of the perils of precisely the mindset which today’s ACLU is now advocating for COVID.
 



 
In 2008, the group explained its purpose this way: “the following report examines the relationship between civil liberties and public health in contemporary U.S. pandemic planning and makes a series of recommendations for developing a more effective, civil liberties-friendly approach.” Its key warning: “Not all public health interventions have been benign or beneficial, however. Too often, fears aroused by disease and epidemics have encouraged abuses of state power. Atrocities, large and small, have been committed in the name of protecting the public’s health.”
 

 
The immediate impetus for the ACLU’s 2008 report was two-fold: 1) the 2008 emergence of the avian bird flu pandemic, which produced highly alarmist and ultimately false headlines around the world about millions dying; and 2) new pandemic legislation and regulatory frameworks, enacted in the wake of 9/11, premised on the view, as the ACLU put it, “that every outbreak of disease could be the beginning of some horrific epidemic, requiring the suspension of civil liberties.”
 
The ACLU issued its 2008 report to warn that the worst possible way to respond to a deadly pandemic was through coercion and mandates. Instead, the group argued — as one would expect from a civil liberties organization — persuasion and voluntary compliance were both more effective and less likely to erode core liberties. As they put it:

The lessons from history should be kept in mind whenever we are told by government officials that “tough,” liberty-limiting actions are needed to protect us from dangerous diseases. Specifically: coercion and brute force are rarely necessary. In fact they are generally counterproductive—they gratuitously breed public distrust and encourage the people who are most in need of care to evade public health authorities. On the other hand, effective, preventive strategies that rely on voluntary participation do work.

The key dichotomy emphasized by the 2008 version of the ACLU was the difference between constructive and persuasive messaging regarding public health versus the use of law enforcement and forced mandates. Starting with the report’s title (“The Need for a Public Health – Not a Law Enforcement/National Security – Approach”) through every section, the ACLU urges that mandates and coercion be dispensed with in favor of voluntary compliance and educational messages:

Government agencies have an essential role to play in helping to prevent and mitigate epidemics. Unfortunately, in recent years, our government’s approach to preparing the nation for a possible influenza pandemic has been highly misguided. Too often, policymakers are resorting to law enforcement and national security-oriented measures that not only suppress individual rights unnecessarily, but have proven to be ineffective in stopping the spread of disease and saving lives . . . .
 
This law enforcement/national security strategy shifts the focus of preparedness from preventing and mitigating an emergency to punishing people who fail to follow orders and stay healthy.

Much of the report is devoted to an examination of how the U.S. government has historically treated pandemics. As it reviews each pandemic — including horrifically lethal ones such as the plague and smallpox — the ACLU concludes over and over that American health authorities excessively relied on coercion rather than education and persuasion, fueled by media-aided fear porn and alarmist narratives:

Lessons from History: American history contains vivid reminders that grafting the values of law enforcement and national security onto public health is both ineffective and dangerous. Too often, fears aroused by disease and epidemics have justified abuses of state power. Highly discriminatory and forcible vaccination and quarantine measures adopted in response to outbreaks of the plague and smallpox over the past century have consistently accelerated rather than slowed the spread of disease, while fomenting public distrust and, in some cases, riots.

Amazingly, the model that the ACLU identifies as the one that must be avoided is precisely the one that it is now urging be used for COVID. Compare, for instance, the ACLU’s defense of coercive mandates in its New York Times op-ed this week (vaccine mandates “rarely run afoul of civil liberties”) with this ringing endorsement of the need to preserve freedom of choice in its 2008 report:

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