Get Ready for the Crackdowns

by Kelley B. Vlahos

Original.Antiwar.com

The show of paramilitary force at the national party conventions held since the 9/11 attacks has been nothing less than shocking, though the vast majority of America doesn’t know it because they weren’t there, or they simply don’t care.

Still, since the Occupy movement has brought on new and creative crackdowns on Constitutionally-protected protest activity in towns and cities all over the country, you can bet that when it comes to security at this summer’s Republican and Democratic Party confabs, you ain’t seen nothing yet.

Antiwar protesters nevertheless plan to join demonstrators of myriad stripes, many under the Occupy rubric, as they converge on three major events this spring and summer, beginning with the NATO summit in Chicago in May, the Republican National Convention in Tampa in August, and the twin Democratic confab in early September.

Authorities are taking preemptive measures against planned demonstrations at these events on two fronts: one, mobilizing a massive militarized police and National Guard presence with the latest technology and weaponry, including street surveillance cameras, at least one fully armored SWAT vehicle with a turret, Tasers, tear gas and the like; and two, creating new municipal codes and laws to cordon-off public spaces from use, and establishing “security zones” that will limit the impact of Constitutionally-protected protests.

One actually had to be at the previous conventions to absorb the humiliation of American citizens lining up like cattle behind barbwire fences, the helicopters ever-circling overhead, the police — dressed in full-armor battle gear as if launching into urban operations in Ramadi — cordoning off and fully surrounding small city blocks in anticipation of a VIP’s arrival at a nearby hotel or restaurant (could it be Rep. John Boehner? Or Sen. Smiley Face? It didn’t matter). Urban soldiers stood at the ready as mothers with strollers and hapless tourists and conventioneers tried not to make eye contact just in case. No one wanted to be confused with a terrorist, or worse, a rabble-rouser.

And that was just the 2008 Republican convention in St. Paul, Minnesota. This was nothing compared to the party’s New York bash in 2004. Still raw from the memory of 9/11, but narcissistic and cynical enough to hold what amounted to an enormously expensive private party, the Republicans made sure for one week the Big Apple was transformed into an armed camp, 120,000 protesters on one side of the checkpoints and the immense sweep of the local, state and federal security apparatus on the other.  Some 1,800 were arrested over the course of the event, through most of the charges were eventually dropped.

Both the GOP convention and the Democratic event in Boston that year imposed so-called “free speech zones” on demonstrators. The Boston police actually put them in a pen, like capricious monkeys at the zoo, or prisoners in a camp. Activists took to calling it “Camp X-Ray,” an old moniker for the Guantanamo Bay prison facility.

Of course, then-President Bush loved to ensure his “fans” were safely ensconced in such spaces wherever he went during his reign tenure, his Secret Service and White House handlers poised to purge his audiences of any unwelcome dissidence. Everything in the name of “security” — from shutting down entire towns to tossing people out of presidential events because of their antiwar bumper stickers and T-shirts, no effort seemed too petty or too ludicrous.

It would be naive to think that Obama and his party are any different when it comes to public displays of dissent. In the latest and maybe the most underestimated move by Washington to insulate the establishment against upcoming protests, the Congress just passed and Obama signed an update to a federal law that makes it a crime to be in a United States Secret Service-imposed security zone. Critics calling it the “trespass law” say the new language penalizes individuals whether or not they are even aware they are acting illegally.

The old law (18 USC § 1752) (emphasis mine):

(a) It shall be unlawful for any person or group of persons—(1) willfully and knowingly to enter or remain in any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting;(2) willfully and knowingly to enter or remain in any posted, cordoned off, or otherwise restricted area of a building or grounds so restricted in conjunction with an event designated as a special event of national significance;(3) willfully, knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, to engage in disorderly or disruptive conduct in, or within such proximity to, any building or grounds described in paragraph (1) or (2) when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions;(4) willfully and knowingly to obstruct or impede ingress or egress to or from any building, grounds, or area described in paragraph (1) or (2); or(5) willfully and knowingly to engage in any act of physical violence against any person or property in any building, grounds, or area described in paragraph (1) or (2). …

The new law (H.R 347) (.pdf)(emphasis mine):

‘‘(a) Whoever— ‘‘(1) knowingly enters or remains in any restricted buildingor grounds without lawful authority to do so; ‘‘(2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions;‘‘(3) knowingly, and with the intent to impede or disrupt the orderly conduct of Government business or official functions, obstructs or impedes ingress or egress to or from any restricted building or grounds; or‘‘(4) knowingly engages in any act of physical violence against any person or property in any restricted building or grounds; or attempts or conspires to do so, shall be punished as provided in subsection (b). We see here the word “willfully” is struck from the new law. Legal experts tell us that makes all the difference."

From Rep. Justin Amash (R-MI), one of the only three members of the House and Senate who did not vote for the measure this month (Rep. Ron Paul and Rep. Paul Broun — all Republicans! —were the others):

Current law makes it illegal to enter or remain in an area where certain government officials (more particularly, those with Secret Service protection) will be visiting temporarily if and only if the person knows it’s illegal to enter the restricted area but does so anyway. The bill expands current law to make it a crime to enter or remain in an area where an official is visiting even if the person does not know it’s illegal to be in that area and has no reason to suspect it’s illegal. (It expands the law by changing “willfully and knowingly” to just “knowingly” with respect to the mental state required to be charged with a crime.)

Punishment for violating the law can carry upwards of one year in jail or 10 years if the individual is caught with a gun or “dangerous weapon,” or if his or her actions result in “significant bodily injury.”

Experts who insist the tweaking of the language is significant have cited U.S. v. Bursey, the case of Brett Bursey, an Iraq War protester who was arrested by Secret Service in 2002 when he refused to leave a restricted area during a demonstration. The U.S. Fourth Circuit Court of Appeals found that the prosecution did not prove that Bursey had “willfully” committed a crime under the statute:

“…because, generally, “[m]ore is required” with respect to conduct performed willfully than conduct performed knowingly… (Willfully) requires “more culpable” mens rea than knowing violation. As a general proposition, the statutory term “knowingly” requires the Government to prove only that the defendant had knowledge of the facts underlying the offense.”

In other words, before H.R 347 was passed, in order to find an individual guilty of protesting in a restricted area, the government had to prove that the individual knew his or her activity in that space was illegal. Now, the government merely has to find that a person “knowingly” entered a restricted space, which does not address intent, just the individual’s mental state. All that matters is whether he or she “knew” they were there at the time and place in question, and were not impaired or unconscious of their actions in some way — a much lower standard for prosecution.

This could have serious consequences for demonstrators at the NATO Summit and the two conventions, as the usual labyrinth of security perimeters are thrown up not only around major venues (Chicago’s McCormick Place for the summit, Tampa Bay Times Forum and the Time Warner Arena in Charlotte), but around temporary spaces where protected individuals for these events are — like the numerous parties and fundraisers and other special events which typically accompany these things elsewhere in the host city. These protected individuals include, according to the law, “visiting heads of foreign states or foreign governments … other distinguished foreign visitors to the United States,” and “major Presidential and Vice Presidential candidates.”

When this new federal law is applied, the line between whether a sidewalk in front of a hotel where Prime Minister So-and-So is being feted by the So-and-So-American Leaders of America Club is a public or restricted space is suddenly a thin one, leaving a swell of demonstrators and journalists vulnerable to the dragnet of a “knowing” violation.

Of course, as writer Naomi Wolf — and many, many others — have found out the hard way, police often arrest demonstrators on sidewalks whether they have the law on their side or not. But this updated statute gives government a new opportunity to make federal trespassing charges stick, and raises the stakes for individuals seeking to flex their First Amendment rights. It’s hard to believe the dropping of “willfully” wasn’t a preemptive strike at protesters ahead of these potentially volatile events.

Meanwhile, the host cities are doing their best to marginalize the protest element too. Charlotte plans to put into place rules designating parade routes and “protest zones.” That was after passing an ordinance banning camping on public property and producing a list of items either banned or subject to searches in the established “security zone.” Tampa is a few steps behind but is nonetheless considering similar ordinances, according to recent reports.

In Chicago, activists are crying foul at a decision by the city to reject their permit for a parade during the NATO Summit. Subsequently, the groups reportedly rejected a counterproposal by the city which would have given them an alternate parade route away from the convention center with “virtually no public visibility.”

“Permitting people to express publicly their opinions to the president only at a time and in a place and manner such that he cannot hear them violates the First Amendment because it guarantees the right to useful speech; and unheard political speech is politically useless,” wrote Judge Andrew Napolitano, in a recent column about the new Secret Service law.

“The same may be said of the rights to associate and to petition. If peaceful public assembly and public expression of political demands on the government can be restricted to places where government officials cannot be confronted, then those rights too, have been neutered.”

Of course the mainstream media is ever complicit in drawing a picture that makes these anti-free speech rules, not to mention the over-the-top security plans, appear justified. To hear the Cassandras wailing about the safety of their cities from dirty hippie thugs, one would think there had been a pattern of riotous behavior at the last four national conventions — but there was not. In fact, violent instigation from the so-called “black bloc” types and other outbursts of physical destruction among demonstrators have always been a tiny percentage of the activity outside these events and largely denounced by activists overall.

Nonetheless, police have let loose flash bang grenades, tear gas, wielded batons and hauled off thousands to jail (only to let most go uncharged) in response to activity around the conventions that might have been annoying, loud and inconvenient, but largely non-violent, and in many cases, not prosecutable.

In St. Paul, they arrested 300 antiwar protesters in one day, though a tiny fraction was ever convicted. Earlier that week, Democracy Now! journalist Amy Goodman and her colleagues were “violently manhandled” and arrested for not dispersing from a demonstration they were covering for their Pacifica News program. The journos later sued the police department and won.

Before the September 2008 convention even began, SWAT teams arrested protesters staying in three homes on the outskirts of the St. Paul and Minneapolis, slapping them with terror-related charges linked to their alleged plans to protest the convention. Agents busted down doors and threw people down on the floor, terrifying housemates and neighbors. The terror charges were eventually dropped and the “RNC Eight” eventually pleaded guilty to a single “gross misdemeanor” and accepted probation, a far cry from the felonies they had been initially charged with.

Now, with $50 million in taxpayer money each, the cities of Tampa and Charlotte areramping up big-time, tapping into their states’ National Guard and federal resources at the FBI, CIA, FEMA and the Department of Homeland Security to design and execute their elaborate security plans.

The Occupy movement has given them more excuse to hunker down, but according to Kevin Zeese, an organizer with the OccupyDC movement which has been dealing with the city’s own efforts to diminish the protests there, this will only embolden people to turn out and test the system.

“The only way to respond to the destruction of our rights is to exercise them; to show those in power that the people will not be intimidated by a lawless government that ignores the clear mandates of the Constitution,” he tells Antiwar.com.

“We have shown in the last six months that when the people are educated, organized and mobilized we can change the direction of the government.  We have the power, we need the courage and confidence to use it.”