Standing Up for the Soul of the Nation

On Tuesday, May 27th, trial began for thirty-five people arrested at the U.S. Supreme Court on January 11, 2008 -- the date that marked six years of torture and abuse at the U.S. detention center at Guantanamo Bay.

On Tuesday, May 27th, trial began for thirty-five people arrested at the U.S. Supreme Court on January 11, 2008 -- the date that marked six years of torture and abuse at the U.S. detention center at Guantanamo Bay.

The 35 were part of a group of more than 80 people arrested in an appeal to the highest court on behalf of those at Guantanamo. Most of those arrested were taken into custody without their own identification and announced that they were acting on behalf of a Guantanamo prisoner. Their act of taking a "Guantanamo name" symbolically grants the Guantanamo prisoner their day in court-a day that the Pentagon has denied them for years.

On Thursday, all but one (whose charges were dismissed) were found guilty.

The defendants represented themselves, mounting a spirited defense of their First Amendment rights to protest the gross injustice of abuse and indefinite detention of men at the U.S. Naval Base at Guantanamo Bay.

What follows is an exchange between defendant Joe Morton, a retired philosophy professor at Goucher College, who acted on behalf Saleh Mohamad Al Zuba and Michael Foley, a history professor at City University of New York's Graduate Center and the College of Staten Island.

Some of what follows was deemed irrelevant by Judge Wendell Gardner, and was stricken from the record of the proceedings.

Joe: What is your name?

Mike: Michael Foley

Joe: Where do you live?

Mike: Brooklyn, New York

Joe: What do you do there?

Mike: I am an historian. I'm an associate professor of history at the City University of New York's Graduate Center and the College of Staten Island where I teach and write about war and American society, and American social movements.

Joe: Were you in Washington DC on 11 January 2008?

Mike: Yes, I was.

Joe: Where did you go in DC that day?

Mike: I spent some time that day at the United States Supreme Court and some time in jail.

Joe: So, you were taken into custody there, but you are not a defendant? Mike: No, the government dropped charges against me and six others a couple of weeks ago.

Joe: Why did you go the Supreme Court on January 11?

Mike: I went to make an appeal to the justices on the Supreme Court that they not repeat the mistakes of past wartime rulings. As an historian, I know that the US often restricts civil liberties in war time, and I know we've come to regret it. The internment of 120,000 Japanese Americans during World War II made sense to a lot of people at the time -- including the Supreme Court -- but 40 years later the Congress paid more than $1.5 billion in reparations and President Reagan described it as a result of "race prejudice, wartime hysteria, and a failure of political leadership."

Joe: But why the Supreme Court? Why not contact your elected representatives?

Mike: I have contacted my elected representatives in the Congress, Senate, and in the White House, but the suspension of habeas corpus and the practice of torture and cruelty in our names continues. Moreover, the Supreme Court is now weighing a decision in the Al Odah v. United States and Boumediene v. Bush cases; we were also, I might add, participating in a well-worn tradition of Americans registering their political appeals when all other remedies were exhausted. People we now regard as heroes -- Rosa Parks, Martin Luther King, and Henry David Thoreau -- took their protest outside the regular channels.

I predict that forty years from now historians will regard these defendants as bold pioneers trekking through American political wilderness bringing a message of transcendent justice.

Joe: OK, so you went to lodge your appeal at the Supreme Court. What did you see while you were there?

Mike: I arrived before noon, and spent some time touring the Court's exhibits -- I'm a sucker for all those historical exhibits. As I recall, I joined the group that received the tour guide presentation of the Supreme Court chambers at 12:30. I left there around 1pm. I toured a bit more of the building, and sometime a little after 1pm, a number of us gathered in the Great Hall where we planned to make a dignified, respectful witness. We never got the chance. When a few people attempted to unfold a banner, and others attempted to expose their Shut Down Guantanamo t-shirts, the police went wild. It was mayhem, as they literally pounced on a whole bunch of people who had not yet said a word. I saw several officers tear the banner out of someone's hands, even though it never got unfolded so you could see what it said. After all of this started to happen, about a dozen people on either side of the Great Hall knelt down -- maybe to avoid being knocked over, maybe to pray -- while others read a statement. I know I saw Susan Crane and Bill Streit try to read statements after the arrests began, but the police just snatched the statements out of their hands. There was so much noise from the police and their radios, though; one could not hear anything being said. I saw Nancy Gowan who had knelt down get practically body-slammed by a police officer and dragged away. After this, people started kneeling, singing, praying... some shouted.

Joe: So, the banner never got unfurled?

Mike: That's right. Not even halfway unfurled. They just ripped it out of people's hands as soon as they started to unfurl it.

Joe: Was there any other sign of protest or display when the police started grabbing people?

Mike: No, except for the barely unfolded banner and then a few visible t-shirts, nothing had happened.

Joe: And no one had yelled or said anything at this point?

Mike: That's right. It was like they were waiting for us to do something, and as soon as they saw the banner and the t-shirts, they just pounced. They started arresting people right then. They must have video of this that would clearly show the police preemptively arresting people. There was some singing and shouting after the arrests began, but not before.

Joe: Were there any warnings issued?

Mike: No, there were no warnings issued. I saw them handcuff a number of people and start walking them away. By the time they got to me -- I was one of the last five or six arrested, I think -- they were simply saying "you realize you're about to be arrested?" But it wasn't as though they were offering to let anyone walk out of the building instead of being arrested.

Joe: Didn't you know you'd be arrested before you even went to the Supreme Court that day?

Mike: Well, no. I thought it was a possibility -- because anything can happen at these gatherings -- but I also thought we might be allowed to make a dignified, respectful appeal that would get our message across to the justices and anyone else present. We were not disruptive in any way. And who knew that free speech would be restricted just steps from the Supreme Court chamber? You know, I teach the U.S. Constitution to undergraduates, and if you told me that an American could be arrested or exercising the right to free speech just twenty feet from where the justices decide First Amendment Cases, I would have said you were crazy.

Joe: Thank you, your honor. No further questions.

Soon afterwards, Judge Wendell Gardner refused to let Thomas Wilner, a partner at the Washington law firm Shearman and Sterling, on the stand. Wilner represented twelve Kuwaiti citizens detained at Guantanamo Bay in the case decided in their favor by the U.S. Supreme Court on June 28, 2004. His descriptions of the predicaments of his clients, and expressions of horror and dismay at the failure of most Americans to act against the detainees' indefinite detention and torture were part of forming many of the defendants' motivation and intention.

After his testimony was deemed "not relevant" and "unnecessary" by Judge Gardner, Wilner addressed defendants and supporters outside the courthouse, saying: "Hopefully, we'll end torture and indefinite detention as a matter of law. And then, we need to work to make sure that hysteria and false facts don't sweep away the soul of the nation again." He then addressed those on trial directly, saying, "You are standing up for the soul of this nation."

To learn more about the trial, the defendants and the movement to shut down Guantanamo, visit

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