"National Security," has been called "the
last refuge of scoundrels," and, historically, has been used
as a pretext for reducing the freedoms of a populace.
In a civil case,
"In support of their claim that the regulations are
not the product of any genuine security concerns, plaintiffs
point to the following facts:
"1. The preamble to the regulations begins by stating
that "[r]ecent events in the Memorial Core Parks, as well
as terrorist activities elsewhere, have highlighted security
concerns for the White House and the President." It cites
the incident in which Norman Mayer threatened to blow up the
Washington Monument, the bombing Of the American Embassy in Beirut,
Lebanon, and a bombing at Fort McNair. The government witnesses
also contended that these incidents prompted the development
of the challenged regulations. Robbins, Tr. at 7; Parr, Tr. at
91. But they agree that there is no connection between these
incidents and these regulations, other than generally to increase
concern for the Safety of the President.
"2. The photographs contained in the administrative
record depict the activities of certain long-term demonstrators
on the White House sidewalk, chiefly plaintiffs Concepcion Picciotto
and Robert Dorrough; and when the government witnesses testified
about the conditions on the sidewalk that prompted these regulations,
they referred specifically to these same long-tern demonstrators.
"3. Many of the exhibits offered by the government
appear to be unrelated to these regulations. For example the
government. introduced into evidence numerous Park Police reports
concerning demonstrators "camping" on the White House
sidewalk, which is not a subject addressed in the regulations.
In addition, the "camping" problem was cited as prompting
discussions on these regulations. In fact, other, regulations,
not in issue, address the camping problem
"4. Vehicles of various types regularly stood at
the south curb of Pennsylvania Avenue in front of tie White House
for substantial periods of time--with no driver or passengers
in sight--a most obvious hazard in terms of explosives.
"5. Hollow tubing in bicycles, baby carriages, canes,
and dollies(carts) which are frequently on the sidewalk could
"6. No restrictions on size or composition of signs
or dimensions of sign supports, or the Presence of Parcels or
any other property apply to the north side of Pennsylvania Avenue
(Lafayette Park)--a mere 80 feet more away from the fence--and
front door of the White House.
"7. More than a little evidence indicates that the
regulations have not been enforced from time to time under the
very noses of policemen charged with the duty of enforcement.
For example, on September 7, 1993 an organization known as the
Collegiate Association for Research Principles (CARP) demonstrated
on the sidewalk to protest the Soviet Union's downing of the
ill- fated Korean airlines Flight 007. The demonstration lasted
for 45 minutes, during which time the participants violated:
the center zone regulation the prohibition against unattended
signs, prohibition against signs leaned against the fence and
signs within 3 feet of the fence the sign size limitations, and
the parcels regulations. All these occurred under the gaze of
Park Police officers, including supervisory personnel, who did
nothing to enforce any provision of the regulations in issue,
The testimony offered by way of explaining the police conduct
is absolutely unworthy of belief, and the government's effort
to ascribe it to some confusion and lack of communication about
this Court's September 2, 1983 order which dissolved the injunction
then in effect is not supported by the record of proceedings
in this case. Most of the regulations which were violated by
CARP had been in full force and effect since this court's order
of August 23, 1983 1483, issued pursuant to our Court of Appeals
direction to modify this court's July 19, 1983 order. And prior
to September 7, 1983 some of the provisions had actually been
enforced by Park policemen. In addition to the disparity in enforcement
policy among demonstrators there is substantial evidence indicating
that demonstrators and non-demonstrators are treated differently
under the parcel regulation.
"8. Perhaps the most important indication that the
"security concern" had little if anything to do with
these regulations is reflected in the pattern of surveillance
accorded the sidewalk by the Park Police. Lindsey, Tr. at 126-132
(Dec. 14, 1983). It has been constantly emphasized that without
the regulations on signs and parcels effective observation of
what was going on an the sidewalk was hampered, and also it was
not easy to keep up With the presence Or absence of abandoned
parcels. Allegedly, the regulations were specifically directed
to these problems.
"However, except on the occasion of special planned
events, for nearly two years prior to August 23, 1983 the Park
Police surveillance of the sidewalk was entrusted to one officer
on a scooter who patrolled a beat consisting
of Lafayette Park, the Ellipse, and the White House sidewalk.
This type of almost casual surveillance over an area which allegedly
was the focal point of high level anxiety about the security
of the President and the White House is incredible. And this
court indicated as much in some the earlier proceedings. Lindsey,
Tr. at 75-78 (May 3, 1983). Thereafter, on August 23, 1983, the
Park Police assigned a foot patrolman for the purpose of surveilling
the White House sidewalk and Lafayette Park.
The explanation as to why no close surveillance was instituted
up to that date is that the court's modified injunction issued
on August 23, 1983 indicated that the police "now had some
specific tools [regulations] to meet our obligations there that
were going to be in effect"; and that there was 'no need
to assign an officer until that time that we had some clarification
from the courts to indicate that we would have some tools that
would be in force for a period of time." Lindsey, Tr. at
127-132 (Dec. 14, 1983)
"It seems clear that anyone genuinely concerned about
the security of the White House and the President and apprehensive
about the potential of the conditions on the sidewalk would keep
close watch on the-sidewalk. The nonexistence of regulations
which are satisfactory to the Park Police is hardly a justification
for virtually ignoring what may occur on the sidewalk. It would
appear that the situation would call for more manpower rather
than almost none.
"In light of these facts, plaintiffs claim that a
memo from Secretary Watt, and subsequent contacts between Assistant
Solicitor Robbins, a principal drafter of the regulations, and
Secretary and the White House take on added significance. On
January 13, 1983, a memo from Secretary of Interior James G.
Watt requested a 'briefing on the regulations that allow demonstrations
and protesters in Lafayette Park and in front of the White House
on Pennsylvania Avenue. My intention is to prohibit such activities
and require that they take place on the Ellipse.
Plaintiff's exhibit 140. When Assistant Solicitor Robbins spoketo
Secretary Watt about the development of the regulations in March
1983, the Secretary told Mr. Robbins to "keep up the good
work." Robbins, Tr. at 112. "There was also contact
with the White House to inform White House counsel of the status
of the regulations. Additionally, plaintiffs urge that the key
fact that both versions of the regulations just happened to proscribe
all of the plaintiffs' then current activities on the sidewalk
cannot be regarded as mere coincidence.
"In the circumstances it would appear that plaintiffs'
claim in this regard in no wise can be characterized as frivolous
however in light of this court's disposition of this case, it
need not resolve this particular issue."
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