What if, during a speech by the President, some demonstrators outside loudly protested the Administration’s targeted killing of suspected terrorists? Suppose also that one or two unwittingly had crossed over some temporary security boundaries established by the Secret Service. To my knowledge, this hasn't happened. But if it happens sometime soon, then we probably will read more about H.R. 347, a.k.a the “Federal Restricted Buildings and Grounds Improvement Act of 2011.” It was passed by the House and the Senate recently, and presented for the President’s signature last Thursday. And it has gotten some attention of late, with detractors characterizing H.R. 347 as an impingement on civil liberties, and supporters dismissing those complaints.
The legislation’s first and seemingly uncontroversial aim is to establish federal jurisdiction over trespasses against the White House and the Vice President’s home. The current federal restricted areas statute, 18 U.S.C. § 1752, applies only to places that the President and other protected officials visit. But the existing statute does not cover the White House or the Vice President’s mansion; such areas instead are left to regulation under the laws of the District of Columbia. If signed by the President, H.R. 347 would change this by making it a federal offense to enter the White House or the Vice President’s residence without authorization, and to cause disruptions at other restricted locations when they are visited by the president or other officials.
H.R. 347’s far more blogo-controversial innovation is this: the bill also would make it easier for a person to violate § 1752. Right now the statute applies to individuals who, among other things, “willfully and knowingly” cause disruptions in and around federal facilities, or other areas temporarily restricted because of official visits. H.R. 347 would drop “willfully” and leave “knowingly” as the lone mens rea requirement, and thus impose criminal liability on any person who:
(1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so;
(2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions;
(3) knowingly, and with the intent to impede or disrupt the orderly conduct of Government business or official functions,obstructs or impedes ingress or egress to or from any restricted building or grounds; or
(4) knowingly engages in any act of physical violence against any person or property in any restricted building or grounds.
Add in the following definitional language, and the outlines of a civil liberties complaint begin to suggest themselves:
(1) the term “restricted buildings or grounds” means any posted, cordoned off, or otherwise restricted area—
(A) of the White House or its grounds, or the Vice President’s official residence or its grounds;
(B) of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or
(C) of a building or grounds so restricted in conjunction with an event designated as a special event of national significance.
(2) the term “other person protected by the Secret Service” means any person whom the United States Secret Service is authorized to protect under section 3056 of this title or by Presidential memorandum, when such person has not declined such protection.
So how important is the elimination of the “willfully” requirement? The answer will depend on how the revised statute is enforced, but, on first glance, the change is not obviously trivial. “Willfully” generally requires more than “knowingly.” As the Supreme Court once put it, in order convict under the “willfully” standard, a jury “must find that the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful.” Contrast this with the “knowingly” standard, which only “requires proof of knowledge of the facts that constitute the offense,” unless a statute’s text dictates otherwise – and H.R. 347’s text certainly doesn’t dictate otherwise. Also remember that many people – foreign leaders, vice presidential and presidential candidates, and so on – sometimes can qualify for Secret Service protection. In an election year, that can mean a lot of areas restricted on account of official visits, and thus a lot more opportunities for citizens to wander, deliberately or not, into temporarily restricted places.