As Brian Doherty noted below, on Tuesday the House passed H.R. 347 [pdf], officially known as The Federal Restricted Buildings and Grounds Improvement Act of 2011. Now all it needs to become law is President Obama's approving signage.
Contrarian standbys Congressmen Justin Amash (R-MI) and Ron Paul (R-TX) voted nay, but the bill passed 388-3. Rep. Amash wrote that the the bill "violates our rights", but Michael Mahassey, the communications director for the bill's sponsor, Rep. Thomas J.Rooney (R-Florida), sounding irritated on Wednesday (while he implied that I was not the first person to call and ask about it). Mahassey called the reaction to the bill "a whole lot of kerfuffle over nothing. This doesn’t affect anyone’s right to protest anywhere at any time. Ever.”
H.R. 347, said Mahassey, is simply a DC-centric update of already existing law. Section 1752 of title 18, United States Code, already protects those under Secret Service protection — except in Washington D.C. where these protections fall under local laws against trespassing, etc. Mahassey said that the Secret Service requested the changes to this law because "right now it’s not a federal violation to jump the fence and run across the White House lawn, this bill makes it a federal violation.”
But there's reason to worry says Will Adams, the deputy chief of staff for Congressman Amash. Yes, the law updates as Mahssey said. It brings the DC trespassing violations under the federal umbrella and "Amash has no issue with that." But also does imply something else which inspired Amash to vote "nay."
Adams, who is a lawyer by trade, like his boss, explained the changes in updates from the previous statute in layman's terms. It all comes down the words "willfully" and "knowingly". As Amash wrote on his facebook (and Doherty noted):
Current law makes it illegal to enter or remain in an area where certain government officials (more particularly, those with Secret Service protection) will be visiting temporarily if and only if the person knows it's illegal to enter the restricted area but does so anyway. The bill expands current law to make it a crime to enter or remain in an area where an official is visiting even if the person does not know it's illegal to be in that area and has no reason to suspect it's illegal. (It expands the law by changing "willfully and knowingly" to just "knowingly" with respect to the mental state required to be charged with a crime.)
To elaborate on what seems to be subtle legal stuff, the current law being amended, Section 1752 of title 18, United States Code, would be here. Note that the words are "willfully" and "knowingly" are there. H.R. 347 is here. The word "willfully" is indeed gone. What does that mean exactly?
Adams pointed me towards U.S. v. Bursey in which:
Brett Bursey was convicted in early 2004 — after a bench trial conducted by a magistrate judge in the District of South Carolina — of willfully and knowingly entering and remaining in a posted, cordoned off, or otherwise restricted area where the President was temporarily visiting
Bursey visited a South Carolina airbase with the intention of protesting the then-imminent Iraq war. He remained in an area that the Secret Service had coordinated off for 20 or so minutes, arguing his right to stay there. His state trespassing charges were dismissed, but he was then charged under Section 1752 of title 18 above. According to the U.S. Fourth Circuit Court of Appeals, Bursey argued:
first, he maintains that the trial court erred in finding that he was in a "restricted area" at the time of his October 2002 arrest; second, he contends that the court erred in finding that he possessed the requisite criminal intent
They also noted in their decision to reject his appeal, some of the finer points of the difference between "willfully" and "knowingly"":
As the Bryan Court observed... for a defendant to have acted willfully, he must merely have “acted with knowledge that his conduct was unlawful.”...we focus our discussion on whether Bursey “willfully” violated the Statute, because, generally, “[m]ore is required” with respect to conduct performed willfully than conduct performed knowingly... requires “more culpable” mens rea than knowing violation).As a general proposition, the statutory term “knowingly” requires the Government to prove only that the defendant had knowledge of the facts underlying the offense
Bursey was fined a measly 500 dollars, but the precedent is there. And remember, the punishment under both the new and old versions of section 1752 are "not more than one year" in jail for the trespass, and "not more than ten years" if "the person, during and in relation to the offense, uses or carries a deadly or dangerous weapon or firearm." However, as Adams summed it up an email:
The bill makes it illegal knowingly to enter or remain in a restricted building or grounds without legal authority to do so. A restricted building or grounds is defined as a “restricted area” where a person protected by the Secret Service “is or will be temporarily visiting.” According to federal law (18 U.S.C. § 3056), the Secret Service is authorized to protect “visiting heads of foreign states or foreign governments” and “other distinguished foreign visitors to the United States.”
So, let’s say a G-20 meeting is hosted in the U.S. and the Secret Service decides it wants a larger perimeter surrounding the event where only G-20 members and staff can be. A person could be arrested and found guilty of violating this law—with up to 10 years in prison if they’re carrying a weapon, one year in prison if they’re not—for merely walking into the restricted area, without even knowing walking into the area is illegal.
So it's hard to know the exact implications of this one-word change, especially when some very nasty, excessive crack-downs happen already in cases like G-20 summit protests. But law is precedent and interpretation. So in a world where the National Defense Authorization Act maybe allows for the indefiniate detainment of citizens, but maybe not, but the President says he won't use the power so trust him, governments don't need one more inch – not one more word of excuse — to crack down on protest and speech. The cult of the presidency has gone far enough.