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Some War Protestors Jailed; Others Set Free

Ryan Grim

As Desiree Fairooz sat with her Code Pink colleagues waiting for lawmakers and Secretary of State Condoleezza Rice to arrive for a recent House committee hearing, she had no plans, she said, to get arrested. "I already had a case pending."1024 07 1

But she couldn't resist the opportunity when Rice walked in nearly unguarded, and she rushed the Cabinet member with fake blood on her hands. As Fairooz was being hauled from the room, Capitol Police arrested two other women who'd been sitting near her but hadn't done anything yet.

You can see a video of the October 24th event here.

One of the enduring images of Capitol Hill culture is the anguished protester being hustled by authorities out of a congressional hearing room, often hurling insults at scowling lawmakers as they leave. But this familiar scene is shrouded by a couple of Washington mysteries: What triggers an arrest? And what happens next when someone gets busted?

As it happens, there's no simple answer to either question. Capitol Police say they give wide discretion to individual officers on whether an evicted protestor gets arrested. Protestors say arrests seem based on whim, rather than any consistent policy. The same goes for what follows: Sometimes protestors are let go with a fine. Sometimes they spend the night in the slammer. Sometimes they are simply taken to the hallway and told to beat it.

Protest on Capitol Hill, it turns out, is a crapshoot.

More and more people are willing to take the odds, as a prolonged and unpopular war is producing a surge in civil disobedience on the Hill.

For decades, disruptions came from a broad group of complainants and were generally one-shot affairs - against a vote here, a confirmation there, said Mark Goldstone, a First Amendment attorney who has represented Capitol protesters in several precedent-setting cases.

Over the last several years, said a half-dozen Capitol Police officers, the anti-war group Code Pink has largely dominated the congressional heckling scene. Other anti-war activists occasionally get arrested, as do protesters with single-issue groups, said Melissa Merz, a spokeswoman with the D.C. Office of the Attorney General. But none approach Code Pink's level.

"Code Pink - that's it," said one officer. "It's just them," said another. "That's all I've ever seen," said a plainclothes officer.

The group's ubiquitous presence and the Democrats' takeover of Congress have brought uncertainty to the proceedings. "The Capitol Police are looking for direction from the committee chairs and it's been all over the map," said Goldstone. "The old rules used to be that if you did anything you'd be hauled out and most likely prosecuted. It's not an absolute certainty [anymore] that you'll be arrested or prosecuted. The rules are definitely changing."

Democratic committee chairmen are often sympathetic to the protesters' causes, he said - a claim backed by several Capitol Police officers. "They don't want to act like they're totally against them, but there are rules," said an officer in the Rayburn House Office Building.

What those rules are, exactly, remains in question. Capitol Police Sgt. Kimberly Schneider couldn't shed much light on the arrest policy. "That's kind of tricky," she said when asked what it takes to get collared, saying that officers have much discretion.

Said four-time arrestee Fairooz: "We all are discombobulated."

Take the polar bears. In late October, protesters in white bear suits danced and sang outside House office buildings to protest inaction on global warming. The experienced group was trying to avoid arrest. "We'd do as much as we could and as soon as the police said 'move' or 'leave,' we moved and wandered around" outside the various buildings, said organizer Adam Eidinger.

It didn't work. The police said, "'Hell with it, arrest them,'" figured Eidinger, who was hauled off to jail with other polar bears.

Or take Code Pink's Mona Hall, who was jailed for shouting at Army Gen. David Petraeus when he testified on Capitol Hill in September. Lydia Vickers, clad in a pink cape, stood on a chair yelling at the general, but she wasn't arrested.

The decision of who to remove from the hearing room belongs to the chairman of the committee, although police can act first if a protester appears particularly dangerous. Once a protester is removed, however, the committee chairman doesn't have final authority in whether they are charged or simply escorted out.

That doesn't mean they can't try to intervene. House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) asks police that protesters "not be arrested but removed," said a panel spokesman. When Capitol Police arrested former U.S. Army Col. Anne Wright for disrupting a March hearing on the FBI's use of "national security letters," the civil rights veteran sent a senior staffer to pay her fine and "made sure that no further action was taken."

In the Senate, Judiciary Committee Chairman Patrick Leahy (D-Vt.), who announces before nearly every hearing that he will brook no misbehavior, said he enforces strict discipline but is unaware of whether protesters are arrested after ejection.

"I will ask police to remove them if they're disruptive. What the police do after that is up to them," Leahy said. (Sen. Arlen Specter [R-Pa.] had the same up-to-the-cops policy when he was chairman of the panel.)"What does happen to them?" Leahy inquired.

Whatever the current rules, Goldstone thinks that the confrontation with Rice will trigger a backlash. That Fairooz could get so close "has really freaked out a lot of people," he said, predicting that Capitol Police will implement an "arrest-first strategy."

A Capitol Police sergeant, and several officers who spoke on background, agreed. "I think there probably will be more arrests. The things they're doing have started to get intolerable," said the sergeant.

For now, Wright's punishment - known as a "post and forfeit" - is common for people with no previous record, said Merz. Wright will have an arrest on her record but no conviction. Merz estimated she sees several hundred such cases a year.

Protesters with a history of arrests are more likely to be formally charged and held overnight in the city's central cell block.

And as the protester awaits trial, the court often slaps a "stay away" order on her, banning visits to the Capitol, Senate or House buildings. The ban can be lifted, however, with a specific invitation from a member of Congress for a particular hearing or meeting.

Capitol Police think that the stay-away orders could reduce the number of protests. "A bunch of their ringleaders have 'stay aways,' so maybe the others might decide not to come by," said a police sergeant. But Fairooz was under a "stay away" order when she confronted Rice; a letter she carried allowed her entry.

Once the case goes to court, a protester who pleads guilty "very rarely" gets jail time, said U.S. Attorney's Office spokesman Channing Phillips. Those who plead not guilty, said Goldstone, don't often fare well, but there is an exception: "We have a higher likelihood of winning the case if it's a D.C. issue," he said, citing cases where local activists were demonstrating in favor of D.C. statehood.

Sometimes Goldstone relies on "the tourist standard." He helped establish this legal threshold in the late 1980s while defending activists who played dead on the Capitol Rotunda floor to protest aid to the Nicaraguan contras.

Simply stated, the tourist standard says that if the disruption caused by a group of protesters is roughly comparable to that caused by a group of gabbing tourists, then the protesters are within their right to express themselves. If they go beyond that standard? Guilty.

Or not. "I've been doing this 23 years, and I still can't figure it out," said Goldstone.

© 2007

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