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Defending the First Amendment on Capitol Hill

I know how to intentionally risk political arrest. I've done it many times before, though not in the past ten years.

(My most recent political arrest was in June 2003, when -- while studying for the bar exam after graduating from Stanford Law School -- I helped blockade the Bechtel headquarters in San Francisco to protest the company's seizure and privatization of water in Iraq in the initial months following the invasion that spring. Here's a photo that USA Today ran on June 19 of me kicking rhymes while getting handcuffed).

That was in 2003. When I went to Capitol Hill for a Senate Armed Services Committee hearing this February 26, I had no intention of seeking arrest.

I specifically chose not to interrupt or disrupt the hearing -- yet found myself detained afterwards, anyway. All I did was ask a crucial question of vital public interst that no Senators have demonstrated the independence to raise themselves.

I could go on about shooting the messenger (i.e., the irony of leaving in handcuffs after asking a question about corruption, while the officials whose criminal actions have gone unpunished continue to walk free with taxpayer funded paychecks), but I particularly want to focus here on the circumstances surrounding my unlawful arrest.

While losing several hours on a busy work day was an annoying inconvenience, I recognize my privilege in responding to it from a position of strength. At this point, my aims center on invalidating the regulations under which I was arrested, to ensure that others have a right to ask senior officials tough questions without facing similar consequences.

After the hearing concluded, Senators, their aides and the witnesses walked towards the front of the room. I stood in the back of the room to ask Director of National Intelligence James Clapper about his now infamous evasion of a straight answer (if not outright lie) under oath before the Senate intelligence committee in March 2013.

As the video showsI raised my question from the back of the room as witnesses, senators, and their aides filtered out through the front. As I spoke, a Capitol police officer standing between me and those exiting the hearing chamber read me a warning -- apparently the only one now required -- before placing me under arrest.

At the moment that officers turned me to escort me out of the room, I found myself somewhat surprised, having paid little attention to the only warning I received on the understanding that several were required before imposing arrest. I was so surprised, in fact, that I was stunned into silence until my ally videotaping the incident suggested that I keep talking.

After a few hours, I received a citation charging me with "crowding, obstructing, incommoding" someone, presumably James Clapper. But I neither crowded, nor obstructed, nor incommoded, anyone. Is it conceivably possible to "obstruct" someone from a distance when they're walking away from you?

Nor was my question particularly offensive. I simply raised the same issue that multiple members of Congress, and a large majority of the American public, have already noted: "Why do you stand above the law?"

My particular aim was to contrast the impunity for serious crimes by public officials impacting the rights of millions of Americans (not to mention billions of people around the world), on the one hand, with the relentless prosecution and vicious persecution to which communities of color are subjected across the countrry for activities that harm no one.

While we're working to ensure that #BlackLivesMatter, police officers who shoot unarmed people should get some company behind bars from other criminals paid in taxpayer dollars. Senior officials who have lied to Congress to protect their jobs and unconstitutional powers -- including not only the Director of National Intelligence but also CIA Director John Brennan and former NSA head General Keith Alexander -- should be among them, right behind Jay Bybee, the federal appellate judge who authorized international human rights abuses as a Justice Department lawyer in the Bush administration before hiding his record from the Senate in order to be confirmed to the bench.

"Justice" attains bizarre connotations when the most serious crimes go unpunished, while only our most vulnerable and powerless people are subjected to vicious penalties, even for violating the most relatively trivial laws (if even that).

On the one hand, a few hours in the company of the Capitol police is hardly an onerous burden relative to those others have endured at the hands of police departments. On the other hand, there was a criminal in that hearing room -- one posing a threat not only to public safety, but even worse, to freedom -- but it wasn't me. And his crimes are far worse than merely obstructing anyone.

And, as it happens, my circumstances happen to present excellent facts on which to mount a constitutional defense if I'm prosecuted, which would give me a hook to challenge the regulation authorizing my arrest. Under well-settled law, restrictions on the time, place, or manner of political speech must be reasonable (under a multi-part analysis) to satisfy First Amendment principles, and the Senate's new restrictions on dissent are the furthest thing from that.

I feel eager to confront a potential prosecution on March 18. Let me know if you'd be willing to attend my court appearance, or even just write about it. 

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