Jonathan Jarvis is the Director of the National Park Service. Yesterday he was called before Congress to explain why he ordered barricades put up at outdoor monuments in Washington D.C.

Rep. Trey Gowdy made a point of comparing Director Jarvis’ response to veterans to the generous treatment he gave to Occupy protesters in 2011. He noted that in 2011 Jarvis had allowed protesters to remain in a public park for 100 days despite regulations that prevent “camping.”

First of all, note that Jarvis failed to answer the question. He repeatedly cited the “antideficiency act” as if that were an answer. The antideficiency act prevents government agencies from spending money that has not been allocated by Congress. In other words, during a shutdown NPS–like every other agency–must reduce spending to essential personnel.

But the WWII memorial and the MLK Jr. memorial were open 24/7 prior to the shutdown including at night when no NPS staff were on hand. Nothing in the antideficiency act necessitated barricades at open air monuments. In fact it may have cost more money to set up and maintain the barricades than to simply leave the sites open.

Secondly, when pressed on his response to Occupy taking over McPherson Square in 2011, Director Jarvis casually replied “That was two years ago” as if the passage of time has rendered it irrelevant. But it’s very relevant.

If you look back at Jarvis’ prior testimony it is clear he knew Occupy protesters were sleeping on the site in violation of a regulation against camping. In fact, Republican staff presented video of Occupiers talking about sleeping on the site during the hearing:

Asked by Rep. Gowdy during the Jan. 2012 hearing to explain his decision not to cite the Occupiers, Director Jarvis offered this mealy mouthed reply, “We are in the process of gaining compliance with the Occupiers through a series of ramping up the enforcement at the site to gain compliance.”

Later in the same hearing Director Jarvis explained he had decided to ramp up compliance because, “We felt that going in right away and enforcing the regulations against
camping could potentially incite a reaction on their part that would
result in possible injury or property damage.”

So Director Jarvis allowed Occupy to violate a clear no camping law for three months but put up barricades at open air monuments on the first day of the shutdown. In neither case was he able to offer a solid legal justification for his actions, only hand-waving and references to his own discretion.

Director Jarvis assumed veterans would not riot over his obnoxious and unnecessary imposition on their freedoms, but he could not make the same assumption with anti-capitalist Occupy protesters. They had an established habit of breaking things when they did not get their way. The behavior of the NPS does not depend on equal treatment under the law it depends on the amount of pushback Director Jarvis anticipates he will get.