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The Secret Service has confirmed that three Secret Service agents responsible for protecting President Obama in Europe this week were returned home Sunday, and put on administrative leave for disciplinary reasons. The Washington Post reported today that the agents, part of an advance team in Amsterdam, had been out for a night of drinking. One was found passed out in a hotel corridor.

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Coincidently, that comes to light on a day when the Secret Service was being talked about at the U.S. Supreme Court. The Court heard arguments in a case testing whether Secret Service agents can be sued for moving a group of protesters out of earshot of President George W. Bush back in 2004.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: During the 2004 presidential campaign, anti-Bush protesters got permission from the local police to demonstrate when the president visited the small town of Jacksonville, Oregon. When Bush made a last minute decision to eat dinner outside on the patio at an inn, close to where the demonstrators had been given permission to protest, the anti-Bush group shouted loud enough that the server waiting on the president and Mrs. Bush reportedly had to lean in to hear their order.

After 15 minutes, two Secret Service agents ordered local police to move the anti-Bush group farther away. But a competing group of pro-Bush demonstrators was allowed to stay on the opposite street corner.

Michael Moss was in the anti-Bush group.

MICHAEL MOSS: They pushed us about a block away from where the pro-Bush people were.

TOTENBERG: Moss and other demonstrators contend that they were discriminated against, based on their viewpoint, in violation of their First Amendment rights. They sued the Secret Service agents, and a federal appeals court in California allowed their suit to go forward, saying it could see no apparent reason for treating the two groups differently.

Today, in the Supreme Court, deputy solicitor general Ian Gershengorn told the justices there was ample reason for the different treatment. Because it would have been easier to shoot at the president or throw a grenade from where the anti-Bush protestors were, than from the position of the pro-Bush group.

Justice Scalia said it didn't matter whether there had been any intent to suppress anti-Bush demonstrations. We don't usually look into subjective intent, he said. If a policeman stops someone, we'd say: Did you have a broken tail light or not? We do not inquire into the subjective intent of the officer.

Justice Kennedy had a different question: You say that any time there is an objective basis for the Secret Service to move a protester, the fact that the real reason was the viewpoint of the protester, that's irrelevant?

Answer: That's our position.

Justice Alito asked if the Court should establish some rules for such situations. I imagine whenever the president is out in public, there is some degree of risk. You want no risk, keep him in a bunker.

Lawyer Gershengorn responded that there is likely to be a legitimate security rationale in every case. The physical security of the president occupies a very special place in our constitutional structure, he said, and the Secret Service has a special role to play.

Prodded by Justice Kagan, he conceded that if an agent moved people just to avoid annoying the president that is, quote, "the hardest case for us." But to impose rules, he said, would mean that agents would hesitate when they have a real security concern.

Justice Breyer: Everyone understands the importance of guarding the president in this country. At the same time, no one wants a Praetorian Guard that is above the law.

The practicalities, however, continued to dominate the argument when Steven Wilker, the lawyer for the protesters, rose to make his argument.

Chief Justice Roberts interrupted: Let's say you're the head of the Secret Service detail and something happens so that you have to evacuate the president. You'd have to make a split-second decision; take him out through anti-Bush crowd or pro-Bush crowd. Which way do you go?

Lawyer Wilker paused.

Chief Justice Roberts: It's too late, you've taken too long to decide.

Lawyer Wilker said there is ample evidence to allow the case to proceed to the next stage, namely taking some sworn testimony from agents. Do they admit certain facts or deny them?

Chief Justice Roberts: If I were drafting interrogatories, the first thing I'd want to know is what is your policy with respect to moving demonstrators at a presidential event? And I can see the Secret Service saying, that's kind of a bad thing to make it public because there are people out there who want to kill the president. And that gives people a guideline for how to break through the security arrangements.

In rebuttal, the government's lawyer said that's why allowing such suits would be a Secret Service nightmare.

The Court's decision is expected by summer.

Nina Totenberg, NPR News, Washington.

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