In May of this year, thousands of people gathered at the White House to spontaneously celebrate the death of Osama bin Laden. The Park Police did not ask them for a permit, did not ask them to disperse, and there were no paddy wagons called to haul them away. Of course killing Osama bin Laden was something the President repeatedly spoke of with pride, earning himself not only a bump in his poll numbers but also a Saturday Night Live send-up.

As I sat in DC traffic court waiting for Dan Choi to be released from jail on Monday, it became clear that the objective of the government was to prevent him from doing what the Osama bin Laden celebrants had been freely permitted to do: express their first amendment rights in front of a powerful American symbol owned by the American people.

» Stand with Lt. Dan Choi against the governments attempts to harass him for his outspoken activism.

Dan, David Schlesinger and Tom Weis were three of the sixty-five who were arrested last Saturday for protesting in front of the White House against the Keystone XL oil pipeline. Unlike the Bin Laden celebrants, the organizers of the protest — Bill McKibben’s 350.org — had a permit. They had also negotiated with the Park Police for weeks, and were told that the protesters would be immediately released and given a fine. Just as the Park Police have typically been handing White House protests ever since Obama took office.

But the Park Police did not honor their agreement with the organizers. Orders came from “higher up” to hold the protesters in DC jail for two days, on the misdemeanor charge of “failure to obey” — a charge that carries no jail time and equates to a parking ticket.

And so on Monday, I watched as Dan, David Schlesinger and Tom Weis were marched into traffic court in leg irons, handcuffs and chains. They had not done anything that the other 62 people arrested along side of them had not done, the same thing that hundreds of others have been arrested for since Saturday. I was one of those people. The charges against us were dropped without explanation, but the government was now electing to add another charge to Dan, Tom and David: “incommoding.”

What is “incommoding?” Cynthia Kouril looked it up:

It is unlawful for a person, alone or in concert with others, to crowd, obstruct, or incommode the use of any street, avenue, alley, road, highway, or sidewalk, or the entrance of any public or private building or enclosure or the use of or passage through any public conveyance, and to continue or resume the crowding, obstructing, or incommoding after being instructed by a law enforcement officer to cease the crowding, obstructing, or incommoding. A person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than $500, imprisoned for not more than 90 days, or both.

So basically, “incommoding” means disobeying a law enforcement officer who is attempting to keep a public space from becoming crowded or obstructed.

Someone will have to explain to me why, if the Park Police are so concerned about the safety issues presented by crowds in front of the White House, they didn’t elect to close Lafayette Park on the night that Bin Laden was killed and there were literally thousands of drunk demonstrators “incommoding?”

Because they certainly closed it in April when Dan and five others chained themselves to the White House fence, and the Park Police wanted to keep the press away:

Ben Smith:

Police chased reporters away from the White House and closed Lafayette Park today in response to a gay rights protest in which several service members in full uniform handcuffed themselves to the White House gate to protest “Don’t Ask, Don’t Tell.”

People who have covered the White House for years tell me that’s an extremely unusual thing to do in an area that regularly features protests.

A reporter can be seen in the YouTube video above calling the move “outrageous” and “ridiculous.”

The government also elected to bring federal charges (rather than municipal, as they normally do) against Dan and other DADT protesters who were arrested in front of the White House last November. Scott Wooledge, one of the people arrested with Dan, wrote about what happened to them. Essentially, the Assistant US Attorney Angela George took four months to negotiate a plea deal:

The key sticking point from day one of the plea negotiations has been the prosecution’s unrelenting insistence that we demonstrators must be left with a permanent adult criminal record for taking action.

Ultimately George relented on the permanent adult criminal record, but the protesters were forced to admit guilt as part of the deal. Dan refused to do that, and the government will put him on trial on August 29.

But the actions of the Justice Department in the case troubled Judge John Facciola a great deal. As Scott wrote:

The application of this Federal statute to our case seemed to strike Judge Facciola as both unusual and disproportionate to the infraction, as well. He seemed to entertain Goldstone’s argument it could be a troubling indication of an abusive measure taken to punish civil rights demonstrators. Judge Facciola himself, unprompted, offered a comparison Shuttlesworth v. Birmingham, a landmark unanimous Supreme Court decision of the Civil Rights Era. Fred Shuttlesworth was involved in the Southern Christian Leadership Conference and an ally of Dr. Martin Luther King’s. In 1963, he was arrested for conducting a civil rights march in Alabama without obtaining a proper parade permit. He was convicted under a local Birmingham statute.

The Court reversed Shuttlesworth’s conviction because the circumstances indicated that the parade permit was denied not to control traffic, but to censor ideas.

Judge Facciola thought the charges were “disproportionate” to the protesters’ actions, and “strongly suggested the prosecutor go back to her supervisor and revise the charges.”  According to Scott,  Facciola said that ‘disorderly conduct’ under District of Columbia local jurisdiction “might more appropriately fit to the incident.”  “Disorderly conduct” carries  “a lesser fine and a maximum of 90 days in jail, as opposed to six months for the Federal charge.”

George came back four hours later, however, and refused to comply with the judge’s request. “Her office did not feel a charge of “disorderly conduct” was appropriate,” says Scott. “Their odd position seemed to be our behavior was ‘polite,’ orderly, and insufficiently ‘boisterous‘ and, as such, didn’t warrant the application of a less serious charge. A video of the event is below. I’ll leave it to the reader to decide if they themselves might describe our conduct as ‘boisterous,’ as would befit the statute requirements”:

So the US Attorney apparently believes that the protesters were too “polite” to have their charges reduced.

» Stand with Lt. Dan Choi – we’ll deliver your signature to the court on August 29th.

When I brought Dan and John “Scarecrow” Chandley  home from jail on Monday after their release, Dan wanted all all of us to watch Iron Jawed Angels, the Katja von Garnier film starring Hillary Swank that tells the story of Alice Paul. Paul and her fellow suffragettes were arrested by Woodrow Wilson in 1917 for protesting in front of the White House. They too were taken to jail where they served six months, also on charges of — you guessed it — “obstructing traffic.”  They went on a hunger strike, were force fed raw eggs and quite nearly died, but the result was that Wilson suddenly decided that giving women the vote was an important “war measure” as he tried to get the embarrassing incident behind him.

And for all those who say that tactics like these “will elect Sarah Palin” — that is how women got the right to vote.

But to the larger point: when Wilson had the suffragettes hauled off to prison, Alice Paul immediately insisted that they were all political prisoners. And that the measures being taken against them were not an attempt to control traffic, but rather to stifle free speech.

The same thing that happened to Alice Paul and the suffragettes is happening to Dan Choi, his fellow DADT protesters, and now Bill McKibben and the Tar Sands protesters. I do not know how anyone could argue with a straight face that laws written to control traffic are not being selectively enforced to punish free speech when it embarrasses the President, just as they were in Woodrow Wilson’s time. And the minute that the law is abused by those in power in order to punish their critics, the people thus incarcerated by the government become political prisoners.

And so we are standing with Dan Choi. We are signing a letter of support that he will give to the court when he is tried on August 29, and again on October 1. Because the austerity measures that will soon be inflicted upon the country will most certainly drive more people to engage in nonviolent civil disobedience.

With their “excessive” response to the White House protesters, the government hopes to send a message to those who might follow in their footsteps.  It’s important that we send one back.

Other posts in this series: