But in Denver at the DNC, the waves of arrests happened too - and the Democratic Party, which supposedly cares about the Bill of Rights, made no open objection. Today, at political events like this, the MO most favored by law enforcement -- whether local or Secret Service -- is to do massive pre-event surveillance, the kind that is now sanctioned by the U.S. Patriot Act. You establish who might be the potential protesters, and make a broad pre-emptive strike with lots of arrests. Then you hold the prisoners till the event is over, without access to lawyers and without charging them with anything. Bails are set excessively high so as to inhibit most releases. This way, you keep the possible perps away from TV cameras. Afterward, you can release some of them, and charge others with as many felonies as you can think of, in hopes they will wind up with heavy sentences, meaning they will be out of activism for many years.
Following the Democrats' cue, TV news cameras didn't linger on the Denver DNC arrests. The local CBS station did report that the city of Denver prepared what CBS called "Gitmo on the Platte," a warehouse full of hundreds of wire cages where arrestees were confined like so many stray dogs in the local pound. One ABC reporter was arrested when he was merely trying to photograph some politicians. Gitmo on the Platte did get used -- according to Mark Silverstein, legal director of the Colorado ACLU, "Hundreds of people were rounded up by police, detained without access to attorneys, and denied the most basic due process protections."
Now, with news cameras moving to the RNC, Denver arrestees will be stranded in a twilight zone where their trials might last for years, and get little or no news coverage by major media.
Let it be said that I'm an Obama supporter and a lifelong Democrat. But it was very ironic to me that Obama, the Clintons, Al Gore and other party notables were delivering their wonderful glowing speeches inside the Denver convention center, but nobody was talking about the not-so-wonderful denial of due process going on in the streets. Indeed, it's a horrible paradox. Democrats are talking about "the need for change." But in some instances, the needed "changes" may not happen without the added oomph of peaceful protest. Those include "changes" wanted and needed by the LGBT community.
Lessons of History
It's a funny thing about protests. People who protest usually have legitimate beefs with their government. That's one of the big lessons of history. In our own time, suffragettes had a legitimate beef when they chained themselves to the White House gates in the early 1900s. So did the unpaid veterans who marched on Washington D.C. after World War I, demanding their pay. So did the striking workers of the 1930s, and the black Americans who started lunch-counter sit-ins in the 1950s. So did the anti-war protesters of the 1960s, and the LGBT people who marched for their rights in the 1970s, and the environmentalists of the '80s, and the anti-globalists of the '90s.
Legitimate protest happens when a people's impatience with government stonewalling finally boils over, and a lot of them assemble outside the palace gates. Ideally, hopefully, it is peaceful protest, but the numbers do send a powerful message. Hopefully the government gets that message, and moves to a positive solution. The tactic was perfected by Mahatma Gandhi as India struggled to end British colonial rule, and the British got the message -- India was granted its independence.
Protesters were doing it this way for many centuries before news cameras existed to get our faces in front of. The ability and the right to pressure government for change is why our founders included all these freedoms in the Bill of Rights. The First Amendment, along with freedom of religion and speech, guarantees "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The Fourth Amendment guarantees freedom from arrest without probable cause. The Eighth Amendment bars the imposing of excessive bail.
But something happened to American peaceful protest on its way to the New Millennium. Sometime during the 1990s, our First, Fourth and Eighth Amendment rights began to quietly disappear. They were being undercut by so-called "crime reform," i.e. stealthy changes of criminal law affecting protest at both the state and federal level.
Since that time, I'm sorry to say, both political parties have been party to the slow-but-sure erosion of these Amendment rights. Formerly, back in the Sixties, protesters would usually be charged with a misdemeanor -- a small fine, a few days in jail. Rosa Parks paid a $14 fine for her historic protest on the bus. Now the trend is to charge protesters with felonies -- and to stack up multiple felony charges against an individual. Bails can be colossal -- a million dollars or more. Even a misdemeanor conviction can now send you to prison for as much as a year, and get you a heavy fine.
In other words, an activist's life can go up in smoke after the first arrest -- and his or her voting privileges might be taken away as a consequence of a felony conviction.
Is this an issue that should concern LGBT people today? Absolutely. Since the late 1990s, many thousands of us have been arrested and put through the meatgrinder of the new law-enforcement MO. We range from the 50 Soulforce protesters arrested at the ELCA Churchwide Assembly in Indianapolis in 2001, to the four Harvard Students recently arrested for "criminal trespassing" during a DADT civil-disobedience action at a local recruiting center. When ACT UP was most active in the streets, so many members were arrested and their lives destroyed as a result of harsh prosecution that today the organization is careful to educate its members on how to hopefully avoid the worst abuses of law enforcement if they're arrested.
LGBT people also get arrested when they protest about non-gay issues -- like the Florida gay man who was jumped by police a few years ago for wearing an anti-Bush T-shirt at a Bush rally.
The first extreme flex of U.S. law-enforcement muscle came in 1999, during the World Trade Organization's ministerial conference -- the so-called "Battle of Seattle," where there were admittedly some violent anarchist types among the some 40,000 demonstrators who thronged the streets. But the law guys seemed unable and unwilling to tell the difference between the violent and nonviolent variety -- their philosophy was "shoot them all, God will know his own." In 2007, eight years later, 157 Seattle arrestees were still suing for justice...and a federal court ruled that their Fourth Amendment rights had been violated because arrests were made without sufficient evidence or probable cause.
With the series of WTO protests, the erosion rate picked up, and a trend to charge protesters with felonies picked up steam. It took 9/11 for the federal government to make the next deadly step, which was characterizing any form of home-grown dissent as "unpatriotic" and "domestic terrorism." But it's important for Americans to recognize that the trend started long before 9/11 -- that it started because certain people with a lot of political power simply did not want any repeat of that stormy landmark era of protests that changed our country so much, the one that lasted roughly from 1950 till 1980. They wanted to remake the United States their own way, and they still do -- and they want to make sure that the American people have no legal or constitutional weapons to stop them.
Republicans pushed the trend because they always like to take a hard line, and Democrats went along because they were spineless and didn't want to look "unpatriotic."
In 2000 I attended the Los Angeles DNC on a media pass, and was shocked to see the massive and unabashed crushing of any and all protest.
LAPD was out of control, taking the position that all protesters were potential Black Bloc anarchists. Their actions ranged from beating up a homeless activist leader who had a permit to be where he was, to using a bogus bomb scare to try closing down the Shadow Convention where Arianna Huffington, Gore Vidal and Bill Maher were holding forth -- figures who hardly qualified as Black Bloc. Not to mention the cops who raked New York City public advocate Mark Green and his party with rubber bullets as they were making their way to the Staples Center. Yet inside the convention, as the speeches and posturing went on, nobody talked about the civil-liberties nightmare that was going on outside.
Probably the most outrageous case is one where even legislators were handled roughly by law enforcement. In 2001, Congressman Luis Gutierrez (D - IL) and several others joined with Puerto Rican protesters over U.S. Navy bombing practice on the island of Vieques. Gutierrez had a personal interest because his parents lived on Vieques. He wound up being beaten and stomped by Navy police. Federal authorities sent a strong message of their own, jailing Gutierrez, Robert F. Kennedy, Jr., the Rev. Al Sharpton and his wife, and 176 other protesters, including several other legislators from Puerto Rico and the mainland. Sentences ranged from 40 days to 6 months. The government threatened 10-year sentences if there was a repeat demonstration.
A handful of outraged Congresspeople went to the Justice Department and demanded an investigation. Later the Hispanic Caucus in Congress held a hearing, where witnesses described how Navy security beat Luis Gutierrez. But in the end it all got swept under the rug.
If members of Congress who demonstrate peacefully can be treated like this, there is little hope for the rest of us. And after all the destruction the Navy wrought in protesters' lives, it relinquished use of the bombing range in 2003; today the feds are spending at least $200 million to clean up toxic waste at the site.
Presently another Vieques-type confrontation is shaping up right on the U.S. mainland. In Washington County, NC, farmers and conservationists are pitted against the U.S. Navy, who wants to build a practice landing field in the middle of a thriving agricultural community and a wetlands region full of migratory birds. One issue is potential danger to fighter jets from collisions with large birds like snow geese. But the Navy is damn the torpedoes, full speed ahead on this one, with local people saying they will resort to civil disobedience to stop construction. Sen. John Edwards has spoken out against the project, but I doubt we'll see him among the protesters... unless he's okay with being labeled a terrorist and spending a long time behind bars.
"Just Dissent" in California
For eight years now, I've been one of the people writing about this dire issue. Right after 9/11, I published an editorial making some predictions in The Advocate about the over-reaction from U.S. law enforcement that would happen now that we were at war. Everything that I predicted in that article has come to pass. Another cautionary article of mine, called "Denial and Democracy," ran in the Gay & Lesbian Review in winter 2001.
Later in 2001, I wrote an editorial "Fourteen Dollars" for the AIDS magazine, A & U, about the growing punitive attitude of law enforcement towards anybody who dares to protest publicly about health issues. A case in point was the 1999 Texas bust of 15 disabled people in wheelchairs, members of a national disabled activist organization called ADAPT. They had gathered at Governor George Bush's mansion to protest legislation that would require disabled people to live in nursing homes instead of living independently. Police arrested the 15 for "trespassing," and roughed them up, spilling them out of their wheelchairs. Ironically, the judge who sentenced the 15 had a hard time finding a jail with wheelchair access.
Along with a group of activist colleagues, I've also experienced the difficulty of changing these new anti-protest laws once they're in place. In California in 2001, my "Fourteen Dollars" editorial came to the attention of State Senator Richard Polanco and his legislative deputy, Maria Armoudian. They took a look at the state criminal code, where fines and sentencing for protest had been amped higher and into the felony category. Like many states, California now has a conspiracy clause that is the state version of the federal government's power to seek RICO convictions on "conspiracy" that crosses state lines. A working group of activists, trial lawyers and media people, including myself, got together and called ourselves Just Dissent. We drafted a bill that established some protections for legitimate peaceful protest in California. Our idea of a solution was to lighten fines and sentences back to the token level where they were in the 1950s.
In early 2002 Senator Polanco introduced SB 1796 in Sacramento. In spite of opposition by various law-enforcement groups, state legislators heard our message and the bill actually passed. Unfortunately SB 1796 was vetoed by Democratic governor Gray Davis. Davis told us loftily, "Politically motivated protests and demonstrations can be performed, allowing participants to support their cause, without disregarding laws."
Actually, Davis was dead wrong. The way the laws are now written, interpreted and enforced, it isn't possible to do any peaceful protest, no matter how mom-and-pop it is, without being accused of breaking some law or other. Law enforcement is very creative about attaching those magic words "felony conspiracy" to any situation that suits them. Like "felony conspiracy to block a driveway" (and conspiracy can merely mean that two people talked on the phone to plan it). In California, a "felony conspiracy" to protest some action by President Bush, the Governor or other high political figures can get you nine years in prison. Today, anywhere in the vicinity of a political event, even wearing a T-shirt with the wrong message can get you arrested and a year in jail.
With a Republican governor in office, Just Dissent recognizes that Californians haven't got a prayer of passing a similar bill at the moment. But we work and hope for a better day. Meanwhile other states need to have their criminal codes lightened up on peaceful protest as well. Not to mention the daunting task of compelling our government to amend its post-9/11 federal laws and terrorist surveillance habits, so that citizens exercising their legitimate rights regarding legitimate issues won't be fatally confused with the real terrorists who need to be dealt with.
Some arrestees do manage to challenge out-of-control law enforcement after the fact, and get some measure of justice. But that can take years, and money for lawyers and court fees that most people don't have -- unless they get the support of some organization like the ACLU or Lawyers Guild. Just recently a federal court ruled that the District of Columbia had unlawfully arrested about 70 people during an anti-war anti-Bush protest march on Inauguration Day in 2005. The arrestees are now entitled to sue the District for damages.
Today, while activist organizations like ACLU, Democracy Now! and others are expressing more concern about protester arrests -- while growing numbers of Americans have signed petitions protesting the general losses of First Amendment rights under the expanded U.S. Patriot Act -- most of our citizens still show little or no concern over their vanishing right to peaceful assembly and petition. Most people don't think of protesting as something they'd want to do -- especially since the major media are going along with government policy to portray all protesters as "domestic terrorists" who deserve no sympathy because they "break the law."
If the Democratic Party is truly going to stand for "change" today, then they have to add this change to their list. Our First, Fourth and Eighth Amendment rights must be restored where peaceful protest is concerned.
I recognize, however, that right now is probably not a good moment for Presidential candidate Barack Obama to speak out on this issue. Which is probably why he hasn't done so. Obama has already been attacked with allegations of being "unpatriotic," on grounds of his Kenyan and Muslim family background. Indeed, charges of "unpatriotic" are leveled at anybody, politician or citizen, who dares to challenge the restrictions on free speech that go ever higher with each year.
Yet this growing issue makes the U.S. look more and more hypocritical in the eyes of the world. For example -- before the start of the Beijing Olympics, the U.S. media was highly critical of China over its pre-emptive arrests of Chinese activists and foreign journalists. Well, how are our own pre-convention arrests any different than what the Chinese government did?
If Obama is elected President, I pray that this issue will be added to the list of changes he says he wants to make. In his acceptance speech, Obama said, "You don't defeat a terrorist network that operates in 80 countries by occupying Iraq." I agree...and you also don't defeat that international terrorist network by taking away from Americans one of the most fundamental freedoms guaranteed by the Bill of Rights. In his speech, Obama mentioned the importance of the Second Amendment, but hey...the First Amendment has to come first.
Hopefully Obama will have a Democratic Congress that will work with him on amending these dangerous and repressive federal laws, and on encouraging the states to do likewise. Otherwise it won't make much difference to American's welfare if Obama keeps his promise to give more Americans jobs and better healthcare. Jobs and healthcare without freedom to protest is what the Chinese have. It's what Soviet citizens had.
The Democrats can't pretend that they represent "democracy" if they recapture the White House and continue to let this life-and-death issue fester.