Day Three – 29 May 2008
Trial of January 11, 2008 Guantanamo Protesters at Supreme Court

Continuation of defense testimony
The third day of the trial began with the defendants processing into the courtroom as a group and remaining standing until all were present. The defense called Ashley Casale, a full-time student, as the first witness. She began by saying “I am here on behalf of all the prisoners held at Guantanamo Bay who were younger than I am when they were detained, and I’m 19 years old. I felt I had a moral obligation to come to Washington on the 6th anniversary of the opening of the prison to represent people like Mahat McCan, who was 18-years old when he was captured. I may be the youngest person in the courtroom, but tragically I am not younger than many who have been held at Guantanamo.”

Ms. Casale explained that she participated in the procession to the Supreme Court, but did not know what to expect when she arrived on the sidewalk outside the court. When she saw the group in orange jump suits and black hoods walking up the steps and kneeling, she felt morally obligated to join them.

As a defense witness for those arrested outside, Ms. Casale testified that she thought that according to the U.S. Constitution she had a right to petition the government for redress of grievances, and “…the Guantanamo Bay Prison is quite a grievance.” She said she did not plan to get arrested for doing so.

The other five witnesses testified about the events inside the Supreme Court. Father William Pickard, a Catholic Priest, described that he went into the Supreme Court to file a petition for habeas corpus for Faruq Ali Ahmed, a Yemeni man imprisoned when he went to Afghanistan to teach the Koran although no evidence has ever been provided that he had committed a crime. “I was part of a group that had gone to present the petition, but we never got a chance to deliver it. We were standing there, and all of a sudden the police began to arrest everyone. Pandemonium broke out. People were dragged away. Everybody got upset. I began to read the letter we had brought that said why we had come and an officer grabbed it. He was shoving me, so I knelt down. Then they asked me to rise and I was handcuffed. Nothing we did was disruptive. We were peaceful.” On cross-examination, Father Pickard stated that he only heard chanting after the arrests began.

Maria Allwine, representing Shed Abdur Rahman, a 44-year old Pakistani chicken farmer who was picked up by Pakistani authorities in a case of mistaken identity, said she came to the Supreme Court on January 11 to give voice to the voiceless. She said she was frustrated and outraged that the torture at Guantanamo, even though well documented, continued. “It is incumbent on me as a citizen of the United States to do everything I can to stop my country from using torture as an instrument of foreign policy. We had sent a letter to the justices two months before and never received a response, so now we were trying to deliver it in person.” The judge did not allow the letter to be introduced as evidence, so she described the content as referencing the two cases about Guantanamo that are now before the Supreme Court, addressing the denial of habeas corpus to the detainees and the use of torture as an instrument of public policy, and noting that a prior U.S. miscarriage of justice was the establishment of Japanese concentration camps during World War II.

Ms. Allwine said when she had tried to enter the Supreme Court early in the day she had been asked if she was wearing a T-shirt. When she said yes, and was told she would have to remove it before she could enter, she had done so – and therefore was not wearing an orange T-shirt when she went to the Great Hall to deliver the letter. She described a different account from that of the government witness regarding the events there leading to her arrest. She said that she was standing in the hall, and only kneeled down beside others who were kneeling because she was frightened. “There was so much disorganization and chaos. The officers were running -- knocking people down. That’s when I made the decision to kneel down -- at that point I thought it would be a good idea.” She emphasized that the noise in the Great Hall was not made by the defendants but by the police.

Nancy Gowen of Richmond Virginia was the next defense witness, on behalf of Yamatolah Abul Wance, 31 year-old man from Afghanistan. A retired mental health social worker with seven children and four grandchildren, she said she came to the Great Hall to petition the courts regarding Guantanamo. Her account of the arrests was that as she was entering the Great Hall there was “lots of commotion – people in uniform running all around – people kneeling. I didn’t know what to do so I knelt down in prayer. Then someone jerked me up.” She remembered hitting her head and having someone grab her arms from behind, pulling her up with her arms extended behind her. “Then they pulled me down the hallway and took me downstairs. Finally I had a chance to look behind me, and it was then I realized the man dragging me was a uniformed officer. Judge Gardner, I was traumatized. I didn’t feel good. But I realized that what was happening to me paled in contrast to what is happening to those imprisoned at Guantanamo.”

Claire Schaeffer-Duffy took the stand on behalf of Abbas Hasid Rumi al Naely, a 44-year old Iraqi detainee currently being detained at Guantanamo. She said she came to Washington on January 11th to the Supreme Court to appeal for an unequivocal and speedy decision in the cases before it regarding detainees being held at Guantanamo. In the morning she “attended an excellent lecture by the docent and perused the exhibits, including one about the Dred Scott decision.” She marvelled that such a grievous mistake could be reversed in our courts, which gave her hope that the situation at Guantanamo could also be changed through the courts.

Ms. Schaeffer-Duffy stated unequivocally that when she entered the Great Hall she was not participating in a parade and not carrying a banner. “I knelt in prayer in a line with others. I was two lines into the Our Father when I was whisked away and taken into custody. I was not warned that I might be arrested beforehand. I was not told what I was being charged with until five hours later, and even then it was a mysterious revelation. I was given some code numbers as my charge – I didn’t know what they meant.”

The government asked Ms. Schaeffer-Duffy how it happened that she came to the Supreme Court that day. “I am part of the Catholic Worker movement. The Bishops have spoken out against torture. Witness Against Torture has called attention to the injustices at Guantanamo. I knew other Americans would be coming to gather for a litany of sorts, to appeal for the men who have not had a chance to speak for themselves.” She said she expected to hear a singing woman, which would be the sign for them to gather in the Great Hall. “I didn’t have a chance. We wanted to use the space in the Great Hall for a public conversation about this very dire crisis we are in as a society. I feel we are legally and morally obligated to do so.”

When asked if she was wearing an orange T-shirt, she responded, “Yes. I wore a T-shirt saying Shut Down Guantanamo as a clarion call sounding the alarm for justice.”

Judge Gardner refused to accept Tom Wilner, an attorney representing many prisoners being held at Guantanamo, as a defense witness. The defense argued that because he had influenced Father Bill Pickard’s thinking about Guantanamo, his testimony could contribute to Father Pickard’s state of mind and his intent for going to the Supreme Court. Judge Gardner responded that “what’s on trial here is your assembly at the Supreme Court, not what’s going on at Guantanamo.” Defendant Art Laffin made a concerted attempt to convince the judge that Tom Wilner’s testimony would be valuable, but Judge Gardner ended the debate by saying, “Guantanamo may be the worst holding cell in the world. But that’s not what’s on trial here today.”

When Joe Morton attempted to call Mike Foley, not a defendant in the trial, as a witness for the defense, the government objected because they had not been notified of him as a witness before the trial, even though the government had not provided the defense with the names of any of the prosecution’s witnesses, all of whom were police officers. The judge agreed to allow Foley to take the stand later, when the government had had time to do a background check on him. When he finally did take the stand, he described what he saw from the perspective of both a historian (he is a professor of history) and as a person who was arrested with the group in the Great Hall.

Mike Foley had entered the Supreme Court, as had Ms. Schaeffer-Duffy, earlier in the day, and had had time to tour the building, see a film, and examine the exhibits. As a historian and a history professor he looked for information about the Korematsu (1944) decision, which upheld the constitutionality of the internment of Japanese Americans during World War II. He was disappointed to find neither this decision nor other decisions related to the curtailment of rights during time of war, such as the Schenck decision (1917).

Foley described approaching the Great Hall close to 1:00. As he got close to the front door at the top of the steps, near the security checkpoint, he saw a few people begin to unfurl a banner. “In moments police snatched the banner. Behind them, other people had begun to take their jackets off, showing orange T-shirts, and one woman was starting to put on an orange jump suit. In a matter of moments, though, there was bedlam. Police were running, and I heard others being called on a police radio. A number of people were lined on either side of the hall, but there was mahem. People began to kneel. It looked like some were praying and some were trying to get out of the way to keep from getting knocked over. I saw two people start to read, but immediately police swiped their papers out of their hands. At that point people started singing.” He went on to say, “I saw my friend Nancy Gowan being slammed to the ground. She took a hard fall. Then she was dragged away.”

Foley said the police gave no warnings before beginning to arrest people. “It would have been easy for them. It was perfectly quiet. The hall had the hushed, reverential tone appropriate for that space. But the police yelled, ‘Get the banner!’” He said police did not tell the first people apprehended that they were about to be arrested or that they were being arrested. Later, when many people had already been taken into custody, he said the police began saying, “You realize you’re about to be arrested.”

Foley was able to observe the arrests because he was one of the last ones to be arrested, and he said the people were not disorderly or threatening. “I later told my wife that I saw the police start the disruption but blame the protesters. It reminded me of the Chicago Democratic National Convention in 1968, when the police blamed the protesters for rioting, only to have all the investigations conclude that it was the police, in fact, who rioted. In the Supreme Court it was the police who reacted, who were disorderly. It was like they were prepared and waiting, but didn’t have a plan. The orderly, dignified program plan of the people who came to the Great Hall never happened. They tried to improvise a program after the arrests.”

When asked if he thought he was at risk of being arrested when he went to the Great Hall, he said, “No more than I thought I might be arrested anywhere for reading a statement. We went to file petitions to the U.S. Justices. When I saw the charge of unlawful free speech, I was shocked to see it. I teach the Constitution to undergraduates, and if you had told me beforehand that I would be arrested for exercising my Constitutional right to free speech twenty feet from where the Justices decide First Amendment cases, I would have said you were crazy. If there’s any place in the world where one would think free speech would be protected, it would be in the Great Hall of the Supreme Court!”

On that note, the defense rested its case, and the government had no rebuttals.

Contrasts between government and defense testimony
Throughout its cross-examination of defense witnesses on days two and three of the trial the government continued the same line of questioning it had used with its own witnesses. Ms. Acevedo, the prosecutor, focused on indicating that defendants were holding signs and banners, wearing orange jump suits, and wearing orange T-shirts “emblazoned with the words Shut Down Guantanamo.” She continually suggested that the defendants were part of a movement and a political cause.

There was agreement that there was a great deal of disruption and noise in the Great Hall, but the government and defense witnesses differed in their interpretation of who caused that noise. The police witnesses uniformly implied and asserted that the defendants were disruptive and caused the noise. Officer Sergeant Alvin Stewart testified that he heard chanting and “very loud, deafening noises” that were so loud he couldn’t talk to fellow officers. He said the people were “making a chanting sound” that was deafening, but he couldn’t hear the words. Officers Matthew Groves heard loud noise and saw multiple people, and Anthony Dziak heard “a lot of yelling – pretty loud -- in the Great Hall.” The clear implication was that the noise was caused by the people who were kneeling, praying, reading from a paper, and unfurling a banner. Officer Eric Menke “saw a bunch of people singing.” Officer Thomas Brandt say people’s lips moving, saying something that included the word ‘stop’ but had difficulty hearing them because the noise level was very high. Officer Brant Bembenek “saw people yelling and sitting on the floor.” This was in sharp contrast to the descriptions provided by defense witnesses (see above).

Motion for Judgment of Acquittal (MJOA)
Maria Allwine, speaking on behalf Shed Abdur Rahman, made a Motion for Judgment of Acquittal for all the accused. It is included seperately.

Government Closing Statement
Magdelena Acevedo began her closing statement by reiterating, “In the past days we have heard a lot about Guantanamo, but this case is not about Guantanamo, it’s about what they did at the Supreme Court.” She repeated the government version of what occurred on January 11th, handing each arrest photo to the judge and replaying the video of the outside arrests. According to Ms. Acevedo, the group that moved onto the Plaza wanted to be arrested. Moreover, the group inside the Supreme Court were waiting “for some kind of sign” to begin demonstrating, and she said, “We heard from Sergeant Stewart that in his 21 years at the Supreme Court he had never seen that type of demonstration.” She claimed they were expressing their views about Guantanamo in a way that violates the statute.

At a certain point Ms. Acevedo handed Judge Gardner a photograph of Tim Nolan and pointed to a person on the opposite end of the row from him in the jury box. When corrected, she attempted to recover by saying, “This shows the difficulty we’re faced with in this courtroom.” When Judge Gardner kept looking for the likeness of the person in the photograph and asked which one he was, she told him it was the one in the green sweater. Judge Gardner quipped, “He might have missed a few meals in there.”

As the government continued its review of the identification of defendants that occurred in the course of the prosecution’s earlier testimony, Ms Acevedo admitted that Officer Quigley had only identified people from arrest photos, including Brad Taylor, whom he misidentified in the courtroom. She defended the misidentification saying, “He wasn’t able to identify Brad Taylor in court, but that’s him right there,” pointing to Mr. Taylor herself.

Ms. Acevedo concluded by saying although the group might say they are calling attention to individual persons at Guantanamo, their signs are a message, and therefore they are a movement. She asserted that the group was assembling in violation of the statute and asked the judge to find them guilty.

Ken Butigan, speaking on behalf of Gul Zaman, objected to Ms. Acevedo’s claims that people wanted to be arrested and that they knew they were breaking the law. Claire Schaeffer-Duffy objected to the government assertion that having been found in an elevator wearing a T-shirt saying Shut Down Guantanamo constituted committing a crime. She also objected to the claims that having been escorted from the Great Hall without any opportunity to change clothes proved that those arrested had been participating in criminal activity in the Great Hall.

Then Emmett Jarrett and Art Laffin gave closing statements, which are included seperately.

When Laffin finished speaking, Claire Schaffer Duffy stood and stated, "on behalf of Abbas Hasid Rumi Al Naely, I stand by Art's closing statement." And then, one after the other, each pro se defendant also stood, stated their own name, the name of the prisoner at Guantanamo they carried on January 11 and through the trial experience. Many were openly weeping as they stood.

Government Rebuttal
Magdalena Acevedo then stood, and representing the government, and began her rebuttal by saying, “What these people did was a violation of the law.” She continued at length repeating what she had said earlier.

Final Deliberations and Decison
Judge Gardner began his deliberations by agreeing with the prosecutor’s claims, saying, “You can mince words, but I agree with the government that this was a planned activity.” As he reviewed the testimony of the previous three days, he continued, “Now you say that a picture of someone with a shirt is not proof of violating 6135, but the people wearing those shirts were not trying to convince themselves. They were making a public offering.” Later he said, “It would be disingenuous to say, ‘I had a shirt but didn’t intend to show it.’ It was an orange shirt with black writing saying Shut Down Guantanamo. It’s clear this was a public display on the Supreme Court Plaza and this is a movement to shut down Guantanamo.”

Judge Gardner continued considering the evidence before him and discussing his reaction to both government and defense testimony. In response to invitations by defendants to join them, culminating in Arthur Laffin’s closing statement, Judge Gardner said, “It is unusual for you to ask me to join you. If I did, I wouldn’t be able to hear the case!”

He said he agreed with the government that this was an organized group of people, and said that if the purpose was to send a petition, it would have to go through an organized filing process. “To deliver a letter, you don’t need all this gear.” He went on to say that the justices won’t read a letter whose purpose is to influence their decision.

Judge Gardner also talked about moral overtones. He declined to accept the defendants’ invitation to consider the moral issues they put forth because he deals with the legal, not moral, aspects of the situation. At that point, defendant Carmen Trotta challenged him for suggesting that moral was different from legal. Judge Gardner replied, “I didn’t say that, and don’t interrupt me.”

He continued his deliberation, describing the fact that courthouses are restricted in order for justices to have a safe environment to consider cases unencumbered by activities such as signs and pickets when people come to visit the court. He disagreed with the defense’s description of events, which he characterized as “nothing was going on until the cops got excited and went overboard and tried to keep a thirty-foot banner from being unfurled. Oddly enough, those inside the building didn’t deny the statement on the sign. And people were kneeling, which corroborated the police account that a disturbance was about to happen inside.”

The Judge admitted that there were prosecution misidentifications of defendants in court, but felt that he had out-of-court identification, and that he could see that the photographs he was given represented persons on trial in the courtroom. He said that the police officers testified, they identified people, and a movie was shown of people on the plaza.

In regard to the testimony of some defendants arrested inside the court who said they had knelt to keep from falling, Judge Gardner said, “You didn’t have to kneel beside them, did you? To suggest there’s no connection is to attempt to fool oneself. The inside arrestees were kneeling shoulder to shoulder.”

In further deliberations, he reiterated that judges shouldn’t be influenced about cases they are considering, and that the law is designed to prevent that. He said that no police officer has advance knowledge of events and that their role is to protect justices before an event occurs. Regarding the defense claim that the police acted before anything happened, Judge Gardner said, “There’s no benefit in waiting.”

At 4:15, after reviewing and discussing his reactions to both the government and defense testimony, Judge Gardner finally said, “Everybody’s guilty.”

At that point, defendant Paul Magno stood in the jury box and turned his back to the judge. Judge Gardner then ordered him to be stepped back (taken into custody). As he was removed from the courtroom by U.S. Marshals he said, “Judge Gardner, you should be ashamed of yourself. You’re the one who’s in contempt. You’ve committed an injustice.”