By Russ Baker
Is the president being asked to pound yet another nail into the coffin of democratic expression? So say alarmist scenarios concerning HR 347 (the Federal Restricted Buildings and Grounds Improvement Act of 2011), now on the president’s desk.
The answer, in short, is…maybe. We certainly do have a reason to be concerned. But not necessarily for the reasons we are being given.
Look at the Text
First, let’s eat some broccoli. Reading text is not like downing mashed potatoes, but it is good for you.
The bill, according to the official summary:
Amends the federal criminal code to revise the prohibition against entering restricted federal buildings or grounds to impose criminal penalties on anyone who knowingly enters any restricted building or grounds without lawful authority. Defines “restricted buildings or grounds” as a posted, cordoned off, or otherwise restricted area of: (1) the White House or its grounds or the Vice President’s official residence or its grounds, (2) a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting, or (3) a building or grounds so restricted due to a special event of national significance.
A sampling of postings from recent days reflects the disquiet. One website published an article headlined “U.S. Congress passes authoritarian anti-protest law.” Another’s said “H.R 347 could be making the First Amendment illegal.” Still another, a guest blogger on the website of constitutional law professor Jonathan Turley, was headlined “Imprecise Language and the Risks of H.R. 347”
The first site one cited above, the World Socialist Website, which clearly has a viewpoint, made some interesting points. But the WSW stokes fears unnecessarily by its framing:
The passage of H.R. 347 has been the subject of a virtual blackout in the media. In light of the nature of the bill, which constitutes a significant attack on the First Amendment, this blackout cannot be innocent. The media silence represents a conscious effort to keep the American population in the dark as to the government’s efforts to eviscerate the Bill of Rights.
The timing of the bill is significant. H.R. 347 was reported to the Senate floor by the Senate Judiciary Committee on November 17, 2011, amidst a massive nationwide crackdown on the Occupy Wall Street protests – and just two days after hundreds of New York City police conducted the infamous military-style raid on the demonstrators’ encampment in Zucotti Park, driving out the protesters and erecting barricades…..
That makes a bunch of assumptions that may or may not be correct — and some clearly are not. For example, the media silence does not necessarily represent “a conscious effort” to keep the American population in the dark.” The media, notwithstanding its predilection for authority, fails to cover the vast majority of legislation, including most of the important bills. Some of this is simply a matter of awareness, resources, style, and even a disinclination to examine legislation that has a technical side, or, as in this case, where the vote is almost unanimous in favor.
In addition, the assertion about “timing” seems to misrepresent the intent. The bill was actually introduced long before the Occupy protests — and so one would have to note that fact– and it’s not clear whether it finally got legs because of the protests.
Where Did This Come From?
Speaking of intent, it’s important with these things — with all matters of dispute — to study their origins.
WhoWhatWhy called the office of the author of HR 347, Rep. Thomas J. Rooney (R) of Florida. According to his communications director, Michael Mahaffey, the bill originated a year ago when the Secret Service approached members of the Judiciary Committee, on which his boss then served. Rooney, who has a background in the military justice system and has taught constitutional law at West Point, volunteered to sponsor the bill. It was co-sponsored by a fellow Floridian, Democrat Ted Deutch (who, it should be noted, also co-sponsored the highly controversial Stop Online Piracy Act (SOPA.)
HR 347 passed both the Judiciary Committee and the House in the last Congress, when it was still under Democratic control. The current congress passed it almost by acclamation (unanimous in the Senate; in the House, just three members voted against it.)
Mahaffey says that the law needing amending, Section 1752 of title 18, United States Code, allows the government to designate as “restricted” any places the president and vice president travel to. But Section 1752 has no such reference to the White House or the vice president’s residence, the Naval Observatory. Because of this flaw in the law, when someone jumps the White House fence, the Secret Service can only take action under District of Columbia law, which treats such breaches as a misdemeanor. Mahaffey followed up on our conversation with an e-mail that made these further points:
This bill does not affect anyone’s ability to protest in any way whatsoever.
Current law prohibits unlawful entries upon any restricted building or ground where the President, Vice President or other protectee is temporarily visiting. That’s current law, and I don’t know of any complaints about people not being able to protest the President. However, there is no federal law that expressly prohibits unlawful entry to the White House and its grounds or the Vice President’s residence and its grounds. Instead, when people trespass onto White House grounds, secret service relies on DC anti-trespassing laws. Again, that’s already current DC law that you can’t trespass onto White House Grounds, and no one has complained they can’t protest the President outside the White House. This bill simply extends the protections that follow the President and VP when they’re traveling to their homes at the WH and Naval Observatory.
One reason we needed to make this technical fix is that the DC law that secret service relies on does not distinguish between those who have lawful authority to be on White house grounds (like secret service) and those who don’t (like fence-jumpers). So to be absolutely clear, just like the current law allows protests outside restricted areas when the President is traveling, this technical fix will continue to allow people to protest outside the White House. Any claims to the contrary are unequivocally false. This bill only affects those who knowingly and without legal authority trespass onto White House or Naval Observatory grounds. Unless you’re jumping the fence, you don’t have anything to worry about.
Some have falsely claimed that you could be prosecuted for unknowingly entering a restricted space. Actually, this bill makes it more difficult to prosecute a trespassing case than under current law. The bill retains the “knowing” standard and replaces “willful” with the phrase “without lawful authority to do so.” That means that the government has to prove that the person knew they were breaching a restricted building or ground AND knew they were doing so without lawful authority. That’s a tougher case to prove than under current law.
Does Fence-Jumping Need to be a Felony?
It does seem reasonable to make fence-jumping a felony. After all, once someone scales the fence, the president is at risk. And preventing that is the job of the Secret Service.
My guess is that this may actually have originated as a result of the Salahis, the couple who creepily got into the White House and close to Obama without proper clearance. (Be sure to read our piece on this and other disturbing security breaches since Obama has been president.)
The bill was requested and introduced in what was still the 111th Congress, while the lame-duck Democrats were still in the majority, and about a year after the Salahis got into the White House without proper authorization.
Obama was rattled by this—and it’s entirely possible that he is behind this tightening up.
We wanted to ask the White House Communications Office, but they had not responded to our inquiry at posting time.
What About the Other Implications?
The reasonableness of this, and perhaps the urgency, if this is taken at face value, may explain why virtually every member of Congress, Republican and Democrat, Conservative and Liberal, supported it. One of the three notable exceptions was the thoughtful and very liberal Keith Ellison of Minnesota. We were curious to hear his rationale—but when we contacted his office, they told us that he was erroneously listed as being opposed. So even he thinks it is on balance, more a good bill than a bad one.
Notwithstanding what is presumably the best of intentions by those voting for it, the bill does seem to be overly broad and overly vague on a number of fronts. The blogger on Turlington’s site focused on one example. But others are evident. For example, consider some more broccoli:
‘Sec. 1752. Restricted building or grounds
‘(1) knowingly enters or remains in any restricted building or 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; ….
The phrase “within such proximity” seems to refer to those who are not in a restricted building or on the grounds, but merely somewhere near. And what would constitute impeding or disrupting? For example, if there were a ceremony in the Rose Garden, and peaceful demonstrators outside the White House grounds were extremely loud, couldn’t they be said to be “disrupting…in proximity” to a “official function.”? What about a large demonstration flowing into the street, slowing down the passage of vehicles into and out of the White House? Such scenarios should be discussed.
The bottom line is that it does make sense to have tough laws in place to protect the president. But is this the right language? Even to someone who is not a constitutional lawyer, it certainly doesn’t look to be. In this country, we err on the side of caution when it comes to restricting the right to protest.
So, if Obama cares about not just his personal safety — but the safety of democracy itself — he will demand that Congress go back to the drawing board.
Meanwhile, the current climate, in which some Americans automatically support repressive or potentially repressive measures, and others see everything as a deliberate step down the road to authoritarianism, is poisonous. We need to be vigilant, but we also need to be careful not to vilify all of government, and all the people we elect, as deliberately complicit in democracy’s downfall.
Sometimes there’s more to the story. And we need to learn a lot more. Unfortunately, by the time a bill is on the President’s desk, there simply isn’t the time. Φ
Russ Baker is an independent journalist who blogs at whowhatwhy.com.