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Preventive Detention

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On May 3, 1971 I found myself in Dupont Circle, Washington, D.C. -- as did a lot of others, most young, mostly "disreputable," all appalled by the war in Vietnam. I was covering the manifestations for The Cornell Daily Sun, and had taken the precaution of obtaining a District of Columbia press pass. Early that morning, standing on a curb, I was told by a DC policeman to move. I took a step. I was promptly arrested. I inquired as to the reason for my arrest. I was told that, when I took that step, I was jaywalking.

Rather than write a ticket, the arresting officer threw me in jail. In this I was not so unique. More than 7,000 people were thrown in jail that morning, some (like myself) in police stations, many others in RFK stadium, which had been transformed, for the morning, into a Junta-style detention center.

We spent that night and the next day eating green baloney sandwiches: 14 comrades in a cell built for two. Finally I was arraigned, made my bail, took the Greyhound home.

The sandwiches were not so good. But my stay in that police station basement was, on an amortized basis, the most productive and satisfying 36 hours of my life. A piece I wrote about my jaywalking arrest found its way onto the New York Times Op-Ed page, which was a heady venue for a 20-year-old writer. On the basis of it, I received job offers from LIFE and the Los Angeles Times. I joined a class action suit of others who had been arrested for no reason that morning, a case originally called Apton et. al. v. Wilson, Mitchell, Kleindienst et. al.

The case, in which we were represented with great skill and tenacity by the Washington branch of the ACLU, travelled up and down the courts. A bit less than a decade after my arrest, I and the other plaintiffs received a settlement from the government.

The reason I got that settlement was because in the 1970s, it was assumed that the Constitution meant something. It was assumed that you couldn't throw someone in jail for no reason, or because they had long hair, or dressed in denim, or because they looked as if they were protesting something. It was assumed that you might not like seven thousand kids in your city telling you that you should end a war, but that like it or not, you were not allowed to scoot them all off to the Stadium for convenience's sake. We'd sued not only the D.C. chief of police (Mr. Wilson), but also the Attorney General (Mr. Mitchell) and the Deputy AG (Mr. Kleindienst), whose names you may recall from Watergate. We included them as defendants because the order to clear the streets came from the federal government. And the federal government is not allowed to do that. Because it says so, in the Constitution.

I was reminded of this over the weekend when reading the reports, by Lindsay Beyerstein in Firedoglake, and in Glenn Greenwald's blog, of the doings in St. Paul. Apparently, the St. Paul police, in conjunction with the FBI, are doing just what the Constitution (and the Courts) say you cannot do: put people in jail for no reason because you think they might make a fuss.

Cell phones and camera phones are being seized, to prevent journalism from occurring. A busload of Earth Justice members was swarmed and seized, leaving its passengers stranded on the edge of the highway.

Even more ominously, SWAT teams of police in riot gear and with drawn semi-automatic weapons raided the homes of those suspected of planning protests. From Greenwald:

Jane Hamsher and I were at two of those homes this morning -- one which had just been raided and one which was in the process of being raided. Each of the raided houses is known by neighbors as a "hippie house," where 5-10 college-aged individuals live in a communal setting, and everyone we spoke with said that there had never been any problems of any kind in those houses, that they were filled with "peaceful kids" who are politically active but entirely unthreatening and friendly...

In the house that had just been raided, those inside described how a team of roughly 25 officers had barged into their homes with masks and black swat gear, holding large semi-automatic rifles, and ordered them to lie on the floor, where they were handcuffed and ordered not to move. The officers refused to state why they were there and, until the very end, refused to show whether they had a search warrant. They were forced to remain on the floor for 45 minutes while the officers took away the laptops, computers, individual journals, and political materials kept in the house.

As noted by Greenwald, a lawyer was handcuffed and detained as was a journalist covering the arrests:

A lawyer from the National Lawyer's Guild who was detained and put in handcuffs, explaining that the surrounded house is one where various journalists are staying. Additionally, a photojournalist with Democracy Now was detained at that house as well. So, both journalists and lawyers -- in addition to protesters -- have been detained and arrested even though not a single violent or criminal act has occurred.

The United States has changed in may ways since Mayday of 1971, some of them for the better. But in this respect, it's impossible not to see a precipitous backward slide.

• In 1971, even those who were in favor of the war knew you couldn't just arrest people for no reason. Now that presumption is simply gone.

• In 1971, the actions of the police were seen as illegal. In 2008, they're seen as prudent.

• In 1971, I could be told to move off a street corner and then be arrested for jaywalking for having done so. In 2008, the cops in St. Paul can bust down your door, and then threaten to board up your house for code violations if you don't fix the door they busted down.

• In 1971, the people who ordered the arrests (e.g., the aforementioned Messrs. Mitchell and Kleindienst) paid a legal penalty. The aforementioned Attorney General Mr. Mitchell served 19 months in prison for conspiracy, obstruction of justice, and perjury. He was followed by Mr. Kleindienst, who was convicted of perjury. I am willing to wager that their successor AGs, Mr. Ashcroft and Mr. Gonzales and Mr. Mukasey, who authorized crimes of far greater enormity, pay not a dollar, serve not a day.

Every once in a while, courts and municipalities realize you can't just arrest people because of their politics, or because they decide (in the words of that Constitution thing again) "peaceably to assemble." But they usually recognize it only with hindsight, as in Apton et. al., or as in the case of some 52 NYC protesters who were arrested in 2003, and who in 2008 will be splitting a two million dollar payout.

The Constitution is a class-act document; has some 3,350 Facebook friends; and is the law of the land, too. Wouldn't it be simpler, and easier on us taxpayers, and more ethical, and more legal, and saner, and more reasonable, and better in every conceivable respect, and far more American, to assume that the Constitution actually means what the Constitution says?

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