There is no doubt in my mind that Dan Choi is in the government's crosshairs for extra-harsh treatment as a protester. I say "right on" to his defense attorneys who are trying to make this point.
Shame on President Obama for allowing federal authorities to go forward with this latest attack on America's constitutional right to peaceful protest. Our African-American President should know better, considering all the pain and blood of African-American protest - sit-ins, marches, being beaten and fire-hosed and even murdered - a legacy of black protest that helped get him to the White House.
After all, it's right in the First Amendment about "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
I call it the "latest attack" because Choi's trial is riding a monster trend that began as far back as the '80s and '90s. This was when post-Reagan conservative legislators began quietly changing state and federal criminal code so they could ramp up the penalties for peaceful protest. Before that, civil disobedience used to be prosecuted as a minor misdemeanor, and veteran activists were proud of their long lists of arrests. But these changes in the law aimed to ensure that the Sixties era of massive protest - especially anti-war protest - would never be repeated. Conservative Democrats went along with Republicans on this.
Today, peaceful protest is typically slammed as a serious misdemeanor or a felony charge - preferably a whole stack of charges, along with excessive bail. An activist's life can be ruined by the first arrest.
Make no mistake - protest is going away as an American tool for change.
I've been writing about this deadly trend for years, and was often baffled by the LGBT public's lack of interest in the issue. After all, we've got as big a stake as anybody in the right to "peacefully assemble." Yet most of us stood by silently while (for instance) the fiery ACT UP activism of the 1980s was gradually smothered by prosecutorial overkill.
Now a gay man in uniform is standing in front of those legal bullets and will spend six months in federal prison if convicted. I'm glad to see that more and more LGBT people are finally waking up to this issue.
The big point about Dan Choi's trial is not that he's gay or protesting DADT. It's that he is a high-profile protester. So the government aims to make a high-profile example of him, in hopes of discouraging other types of high-profile protest. And that includes any high-profile protest over unemployment, home foreclosures, corporate corruption, GM foods, immigration, mis-use of anti-terrorist legislation against innocent American citizens, the Afghanistan and Iraq wars or any other issue that the government doesn't want to hear about.
The 12 activists who were arrested with Choi have taken another option. They pled guilty and will escape jail time if they are not arrested again in the next four months. This option, too, is part of law-enforcement strategy. Government wants to ensure your future absence from the protester arena in every way possible.
Indeed, Americans' capacity to ignore government brutality towards protesters has gone to some extremes. In 2001, a U.S. Congressman (Rep. Luis Gutierrez, D-Illinois) was beaten by military police during a peaceful protest at the U.S. Navy's bombing range in Vieques, Puerto Rico and the major media ignored the story. So did many human-rights organizations. Afterwards the Hispanic caucus in Congress bravely held a hearing, and heard evidence about Gutierrez's beating, and demanded a DOJ investigation. But the DOJ did nothing. The Democratic Party did nothing. Today this shocking incident is almost completely forgotten, but its after-effects have shaken the country deeply.
If a member of Congress can be publicly dragged through the prosecutorial dirt this way, and if most Americans are capable of ignoring this kind of spectacle, what hope is there for Dan Choi? Or for anybody else who dares to hit the street with a sign and a grievance?
No matter how "peaceful' you are, law enforcement is now equipped to find some flimsy pretext to prosecute you to the max. And the major media are now well-trained - they jibe at nonviolent protesters and call them "lawbreakers" who should be punished. This jibing has gone a long way towards making the public unsympathetic towards protesters.
Here in this link, as a backgrounder, is a piece on this subject that I wrote for Bilerico in 2008. It gives more details on how the new harsh prosecution works.
At the time I wrote that piece, I was hopeful that Obama would make some courageous move to protect the right to protest. But our President is now on record with his appalling silence on the Choi trial. In the absence of Presidential leadership, the American people need to start paying attention to this dark trend - and to send their own message to Congress and the White House.
This key constitutional right should not be made "unavailable" to you and me by the threat of harsh punishment.