Judge Questions Government’s Persecution of DADT Activists

I’m busy watching this hearing today (and trying to watch one that happened last week). It’s hard to watch two hearings at once!

But I didn’t want you think I was still celebrating St. Paddy’s Day, so for the moment I’ll direct you to this story, another example where DOJ is taking an unreasonable stance against democratic activists:

Just got a report from Paul Yandura who is at the Federal Court House where the arraignment is for the 13 DADT protesters. As reported yesterday, the protesters, who were arrested on November 15, 2010 in front of the White House, are facing tougher charges than usual for cases like this. The government’s lawyers intend to prosecute the 13 defendants for “violating the orders of a federal law enforcement officer,” which could result in jail time. This is the first time DADT protesters have been in federal court. The other defendants were processed for minor misdemeanors in DC’s court system.

At today’s arraignment, Mark Goldstone, the lawyer for the 13 protesters, explained to Federal Magistrate Judge John M. Facciola that the statute under which the defendants are being charged was unusual. He noted that it had not been used in recent past against people engaging in civil disobedience at the White House. For whatever reason, the government has decided to pursue the more serious criminal charges.

What happened next was surprising to those in the Courtroom. Judge Facciola got up out of his chair, while pacing, gave a speech about the history of the civil rights movement in the United States. He intimated that there were trumped up charges back in the 50s and 60s, too. And, he evoked the Shuttlesworth v. Birmingham case, Martin Luther King’s “letters from the Birmingham jail” and how civil rights protesters were often brought to court to face stricter charges. The judge clearly linked the protest over Don’t Ask, Don’t Tell to those earlier civil rights protests.

The Judge asked the government prosecutor a lot of questions, including why the government didn’t charge the protesters under the lesser crime of disorderly conduct.

You may remember Facciola from the White House email case, in which he ordered the White House to actually keep its emails.

I’m glad the Magistrate judges are pushing back against DOJ’s unreasonable positions.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. tjbs says:

    Change, right eric and barry.

    What about going after the real criminals but I guess eric is a not an independent anything. Cowards the both of them.

    Good on the Judge.

  2. BoxTurtle says:

    A judge standing up to the government? WTF?!? Impeach that man, and call into question his motives!

    Boxturtle (Faux will likely be printing gay rumors before the judge makes it home today)

  3. harpie says:

    Haha! They couldn’t be charged with “disorderly” because they weren’t being disorderly?!?!

    Then clearly they must be charged with something more serious!

    …really good to see this judge stand up [and pace around] and give “the government” an earful.

    [Also, I did actually think you were still celebrating St. Paddy’s Day…and why not? ;-)]

      • harpie says:

        I wonder what their definition of “disorderly” is? Probably doesn’t matter because it would change to fit their needs, anyway.

        • BoxTurtle says:

          disorderly conduct: The act of bringing to the public attention something which the government wishes to be ignored.

          Boxturtle (And it becomes material support of terrorism if it supports Manning)

          • DWBartoo says:

            The universal and timeless “definition”, Box Turtle, beloved by tyrannts from the moment they beset humanity.

            Beginning long before even “history” took note.

            DW

  4. Bose says:

    My question: Are the heightened charges a barely-veiled threat to the protesters who would like to re-enlist once DADT is officially gone? Sorry, Dan Choi, you would be eligible to re-enlist, except for the conviction (and/or jail time) now on your record.

  5. DWBartoo says:

    “You’ve upset the tummy of the Queen!

    You know what that must surely mean?”

    “I … I … yes.”

    “Yes! Your head …

    You stand, now, accused

    of having a mind …

    and thinking

    paraphernalia – a verymost

    serious charge, indeed – a high crime,

    if proved.

    You have also upset the costly serenity

    of the King

    and angered all of the compassionate

    Gods of Heaven,

    by the disrespectful things you do.

    Pondered you not the fate

    of one young Manning,

    before you dared to question,

    to make mock of the greatest

    nation that ever there was …

    whose gracious leaders,

    one and all,

    have only your best

    interests and welfare

    in mind and heart?

    Who are you

    to question those astute

    ones,

    who do the Gods’

    own dear work –

    and have consistently

    shown their virtue

    by the majesty of

    their rewards?

    You are likely fit,

    henceforth,

    only to be made

    example of …

    That others may learn the safe,

    the sure, the true and easy way –

    and not be waylaid, lead off,

    astray.”

    (And yet …

    It is said,

    that the judge who

    is to hear

    this case …

    sometimes

    wears bow-ties

    that look like

    butterflies …)

    DW

  6. PJEvans says:

    Apparently the persecutor prosecutor is claiming they were ‘boisterous’. Trial (preferably with lesser charges, implied by the judge) is set for 9/19. (diary at dKos, with photos and tweets from the original protest)

    • harpie says:

      Thanks for updating us on that.

      Here’s the Americablog link.

      [Update: Government still needs time, won’t agree to reduced charges against DADT protesters]

      […] Mark Goldstone, the lawyer for the 13 protesters, presented a couple of options. For example, the 13 protesters might plead guilty to disorderly conduct under DC law or there could be a DC traffic offense, which is the usual punishment. If not, the 13 will go to trial. They don’t want federal criminal conviction, which is what the prosecutors intend.

      Judge Faccialo told the government to give serious consideration to the suggestions offered by the defendants. He also made it clear that he wants to see this case through.

      There’s a status hearing scheduled for May 17, 2010. Between now and then, the lawyers for both sides will keep talking. So, for now, there has been no resolution.

      The U.S. Marshalls also fingerprinted and photographed the defendants again. The defendants were told they can’t leave the country without informing him. They were told to appear again on September 19, 2011 for either a plea or a trial.

      That gives us several more months to figure out why the Obama administration’s Department of Justice is cracking down on citizens engaged in civil disobedience.