Protester sees White House effort to suppress dissent in arrest

by Jordan Green

More than a few protesters have found themselves in handcuffs over the past three years that the Iraq War has been promoted and waged by the Bush administration. Brett Bursey of Columbia, SC might be the only one who can claim that he’s been prosecuted by the federal government for protesting the president.

When President Bush flew into Columbia Metropolitan Airport on Oct. 24 2002, Bursey knew from previous experience at a Bush appearance in Charleston that the Secret Service and local law enforcement would try to push him into a so-called ‘“free speech zone,’” what his lawyer Lewis Pitts describes as typically ‘“some asphalt in the parking lot beside the Dumpsters.’”

Bursey didn’t intend to comply. As he’s argued many times subsequently to his arrest: ‘“I’m in a free speech zone. It’s called the United States of America.’”

According to all accounts there were thousands of Republicans, some carrying signs to express support for the president, outside Doolitte Hangar where Bush was scheduled to give his speech. Police were directing traffic in and out of the airport. Bursey arrived with an armful of signs and a bullhorn. But the message on one of his signs set him apart from the thousands of Bush supporters.

‘“No more war for oil,’” it read. ‘“Don’t invade Iraq.’”

Bursey is a seasoned protester. As executive director of the South Carolina Progressive Network, a coalition of social change groups that represents black trade unionists; gay, lesbian, bisexual and transgendered folks; peace activists and campaign finance reformers, among others in the Palmetto State, Bursey, who is now 56, describes his job as ‘“to help the constituents of our groups express their feelings about the government, to the government.’”

His October 2002 arrest was more than a little reminiscent of the time in 1969 when President Nixon flew into the same airport. He said he experienced déjà vu when a State Law Enforcement officer told him he was about to be arrested for trespassing on airport property.

‘“I said: ‘You’re going to arrest me for the content of my sign?’ He said: ‘That’s right.’ I hadn’t thought of it before the event, but then a light shines down from heaven: in 1969, there were a bunch of students protesting a different war, a different president.’”

A judge threw out the charges following Bursey’s arrest at the Nixon rally. So when he was threatened with arrest again in 2002 he knew something perhaps the law enforcement agents didn’t.

‘“I said: ‘I don’t think you can do that,’ knowing that you can’t argue with the men with the guns and the badges,’” he said. ‘“I said: ‘You guys do what you’re going to do. I’m going to keep standing here.””

Despite or because of his obstinate stance Bursey watched the Bush motorcade pass from within the confines of a police vehicle instead of greeting the president with his sign on the side of Airport Boulevard.

A local judge would end up dropping charges from the 2002 arrest as well. But his legal entanglements with the federal government were yet to begin.

In March 2003 US Attorney J. Strom Thurmond Jr. filed federal charges against under an obscure statute that deals with ‘“presidential and presidential staff assassination, kidnapping and assault.’” A federal court in Columbia found Bursey guilty of refusing to leave a restricted area and slapped him with a $500 fine. The 4th Circuit Court of Appeals in Richmond, Va. upheld the verdict.

Now Pitts is preparing a petition for writ of certiorari to persuade the Supreme Court to accept Bursey’s case. The deadline to file the petition is Dec. 7.

Bursey was in Greensboro on Nov. 10 to accompany Pitts to Raleigh, where the Legal Aid lawyer accepted an award from the NC American Civil Liberties Union.

He might have agreed to pay the fine and moved on with his life, but Bursey said he believes accepting the verdict would have set a dangerous precedent.

‘“The Secret Service has been acting like an advanced armed political team to clear the area so it doesn’t appear that there is popular dissent to the president’s policies,’” he said. ‘“If the Secret Service is allowed to create an unmarked, vague, amorphous area of a hundred acres it could codify their ability to push people out of the site of presidential appearances.’”

The controversy over Bursey’s attempt to protest against the president revolves around how the restricted area for Bush’s visit was defined by the Secret Service. According to court documents, Bursey was standing in a grassy area near the hangar when he was approached by Secret Service Agent Holly Abel and State Law Enforcement Officer Tamara Baker, who told him to leave. Then Bursey walked diagonally across Airport Boulevard to the far corner of the intersection across from the hangar. The court determined that the president’s motorcade would have to make a slow U-turn at the intersection. Bursey’s arrest took place when he refused to leave that area.

The ruling suggests some ambiguity about where the priority of presidential security ends and free speech begins, stating: ‘“If the Defendant had chosen to keep moving further and further away from the hangar, and if he had still been arrested, not at the location where he was, but at a much further distance from the hangar, he would have had a stronger case that the Government’s actions were unreasonable and therefore unconstitutional.’”

Magistrate Judge Bristow Marchant decided ultimately that post-Sept. 11 security concerns trump free speech.

‘“The site agent testified that this area needed to be secured because it was the emergency egress for when the President’s motorcade departed, was in close proximity to the arrival area, and was close enough that someone standing there could cause harm from ‘[a]nything from pistol fire to throwing rocks to introducing a chemical or biological agent in that area,”” Marchant wrote. ‘“In this age of suicide bombers, where people are willing to strap explosives to themselves to literally become walking bombs, the Secret Service’s concern stand in such close proximity to a slow moving vehicle carrying the President is not just understandable, but manifestly reasonable.’”

Bursey doesn’t buy the security argument. He and supporters such as People For the American Way see a more sinister effort to suppress dissent.

‘“A troubling tendency to suppress (or at least remove to a quiet distance) speech critical of the government appears to be on the rise; this trend is sometimes said to be justified by increased security concerns rising from the threat of terrorism,’” the liberal advocacy group and others wrote in a friend of court brief to the 4th Circuit Court. ‘“While there is no doubt that events of September 11, 2001 and after ushered in an era of greater security concern, it is now more than ever incumbent, as [then] Chief Justice Rehnquist has urged, to carefully examine the link between government claims of necessity and the liberties being curtailed.’”

But on July 25 the appeals court upheld Marchant’s ruling in United States v. Bursey, finding that law enforcement agents were sufficiently stationed at the perimeters of the area to make it clear that the defendant was standing in restricted territory when he was arrested.

So far Bursey and Pitts have been unsuccessful in proving that the activist’s arrest was anything other than law enforcement taking what they considered appropriate action to provide security. But not for lack of trying.

‘“We tried to subpoena Karl Rove because we thought this was a pattern and practice of political policing rather than physical policing,’” Pitts said. ‘“Rove was slimy. We couldn’t find him to serve him the papers. We had no way of knowing for sure but we thought this must have been a policy emanating from the White House.’”

They did manage to obtain a copy of an April 2000 edition of the United States Secret Service Intelligence Division Advance Manual on demonstrations through discovery. The manual raises questions about whether the Secret Service followed its normal procedure when they had Bursey arrested.

‘“In the absence of specific fact or observable actions which would indicate a demonstration may pose a risk to a USSS protectee, protected facility, foreign mission or to public safety, demonstrators are to be treated as members of the general public,’” it states. ‘“USSS personnel should not initiate any action to segregate demonstration activity from public areas.’”

Pitts acknowledged the odds are long that the Supreme Court will accept Bursey’s case, but said it’s important to exhaust every option because he believes Bursey’s prosecution is part of a creeping fascism in the United States.

‘“Notice how the presumption of innocence, the strict construction of the law ‘— all that has gone out the window,’” he said. ‘“There’s a policy and practice of forbidding dissent by criminalizing it by keeping it from occurring in eyeshot of the press so there’s no telecast that there’s people who disagree with the president.’”

He said his pessimistic side makes him worry that the current Supreme Court is too conservative to take notice of Brett Bursey, but the other side thinks there might be hope.

‘“There’s maybe a fifty-one percent louder voice,’” he said, ‘“that says whether it’s strict conservative voices that would say no to intrusion of government on individual rights, or that people are losing such confidence in our government that they’ll think, ‘Maybe we ought to give this one to the people.””

To comment on this story, e-mail Jordan Green at