Answering a “Notice To Appear,” I went to the U.S. District Court for Eastern Virginia in Alexandria yesterday morning to learn what would come of my arrest  last September 11. I was joined by my wife, my mother, two neighbors and friends, and my friend Brett Marston .
As I’ve described  earlier, I went by myself to the “America Supports You Freedom Walk” on September 11, 2005. This was an event staged by the Defense Department, with the walk beginning at the Pentagon. It was purported to signify support for American troops fighting overseas and to commemorate the victims of the atrocities four years earlier at the Pentagon, New York and Pennsylvania, but also seemed a propaganda event linking 9/11 with Iraq and whitewashing misdeeds by the U.S. military at Abu Ghraib and elsewhere.
As walkers prepared to leave the grounds of the Pentagon, I put on a black poncho and a hood chosen to resemble those of a man mistreated and photographed at Abu Ghraib. I then hung a sign around my neck saying “For Them, For Us, For Our Troops: Never Again. Support the McCain and Levin Amendments” – the latter being two legislative initiatives designed to investigate cruelty and torture done in America’s name, and to prevent it from happening again.
I was approached by a Pentagon police officer, who informed me that I could not display a sign at that location. (There were ‘designated protest zones’ along the walk route.) I said I didn’t see why, I was exercising my freedom of speech. We reiterated our positions; he then arrested and handcuffed me. I was peaceful at all times.
I’m no legal scholar. But if I can not express my support for American troops at a Defense Department rally — by demanding our country hold itself to the standards we expect our soldiers’ captors to honor — where can I possibly do so? If I can not peacefully exercise the freedom of speech guaranteed to every American — on the very grounds of those charged with defending our freedom — where can I hope to do so? If the United States government is designing lockstep demonstrations and arresting those who stray off message, what right do any of us have to despise such displays and actions in North Korea, Cuba, or China?
Whatever the merits of those arguments, I had no luck in interesting legal groups in the case — the DC ACLU said they didn’t take criminal cases, and the Virginia ACLU and the Lawyers’ Guild didn’t answer my correspondence. One discussion with a lawyer who often takes First Amendment cases showed that the cost of hiring him for what might be about 10-15 hours of his time would be substantial (even after he was generous enough to cut his rate).
One of the neighbors who joined me at the court was also a lawyer; after talking with her I decided I’d wait and see what happened on Friday before hiring anyone. I was a bit nervous, though; the maximum penalty for the charge — failure to obey a lawful order, 32 CFR 234.6(b) * — was $5000 and 6 months in jail.
The Albert V. Bryan U.S. Courthouse  is a squat, solid chunk of a building on the outside, but feels spacious inside, with plenty of the usual marble, hardwood, and brass favored by the legal profession. After passing through security — one can not bring any electronic devices, including cell phones, inside the building — we went to Courtroom 401, or rather the hallway/waiting area outside it. There was already a gaggle of perhaps forty people there, and a tatty legal notepad perched on a marble ledge, with a list of names to which I added my own. A team of assistant district attorneys would call people from the list to inform them what would happen next.
We overheard snatches of a conversation in which one assistant district attorney informed a lady from Oregon that her case was being dismissed. It turned out I wasn’t the only demonstrator there; she she told us afterward that she and a number of other people had been arrested later in September for blocking escalators in or near the Pentagon, protesting the war. Her case dismissal seemed a good omen.
My turn finally came just before the judge was to appear, around 10 am. Another district attorney (perhaps the chief of the team; he addressed the judge later on) called me into an anteroom; whether it was his style or my case, I couldn’t have onlookers with me, unlike other potential defendants.
He took a breath, folded his hands together, looked at me intently, and admonished me to always follow the directions of police — he wasn’t interested in what I was saying that day, he didn’t have time for that. When I lay down in front of an escalator, I potentially blocked police and others from doing their duty — “I didn’t do that,” I interrupted. Perhaps unwisely. “Do you want me to dismiss this case or not?” he flared. A security officer behind him looked surprised, whether at me or at him I couldn’t tell. The D.A. then took a look at my docket, where he read that the policeman had repeated his order to me several times, and that I had worn a hood, which he termed a “mask” — a potential felony. I didn’t argue the point. He finished speaking, and said “I’m going to dismiss your case.” He seemed to need my agreement, which I gave with a handshake.
Minutes later, inside the courtroom, mine was one of two dozen or so cases “dismissed with prejudice”, which meant that the case would not be reopened by the government. United States of America vs. Thomas M Nephew was over.
Personally, I have never been as disappointed in my country and its armed services as I was after learning of the misdeeds at Abu Ghraib, particularly when no one of high rank or office was held accountable. When I learned that the Defense Department was essentially giving itself a little parade using 9/11 as justification for the blunders and crimes since then, I resolved that my disappointment would not go unheard, and that I would press my demand that we hold ourselves to higher standards.
Expressing my views at that time and place may have been inconvenient and controversial. But those views needed to be expressed there, at the scene of what I considered a state-sponsored propaganda event and an attempted whitewash. While I’m relieved that the case was dismissed, I remain convinced that what I did was not criminal, but patriotic.
The issues I feel the “Freedom Walk” exemplified will remain with us. For one thing, it was the “inaugural” walk — meaning it may well happen again next September 11. But on a wider scale, this kind of propaganda on the public dime is rampant now — from “public” presidential events open only to supporters to news stories and opinion pieces planted in the Iraqi or American media. Is the Pentagon a legitimate launch pad when its masters want to “catapult the propaganda “? Can the federal government then pick and choose who attends — and the speech they choose to use?
I’ve been particularly grateful for and touched by the unwavering support of my family, my neighbors, and my friends in all of this. I never felt as alone as I did before putting on that poncho and hood that day. But I’ve never felt as supported as I have since then. Thank you all.
* If you follow the link, you’ll see that the charge is specific to conduct on the Pentagon “reservation.” The specific regulation I was charged with violating was
Violation of a lawful order. Violating the lawful order of a government employee or agent authorized to maintain order and control public access and movement during fire fighting operations, search and rescue operations, law enforcement actions, and emergency operations that involve a threat to public safety or government resources, or other activities where the control of public movement and activities is necessary to maintain order and public health or safety.
I think I might have waged a defense both on the specifics of whether I was a threat to order, and on the general issue of whether the entire event was “necessary.” I know, however, that would have cost me several thousand dollars, and that I might not have won the case, possibly costing me even more.