From the Archive

Fast for Justice 2012: Day 3

Defendant pro se Josie Setzler addresses the judge as the defendants and their attorney advisers look on. Sketch by Deb VanPoolen.

We write to you this evening with the report that the jury found Brian Hynes, Mike Levinson, and Carmen Trotta guilty on all charges, but were “truly deadlocked” by the end of the day concerning Judith Kelly. The jury was sent home and will resume in the morning.

With the close of the trial tomorrow, we will be shifting our efforts to be a presence on the street throughout the city. As we do so, we are ever mindful, as Matt Daloisio said tonight, that “there is a difficulty in choosing how to act and be in solidarity with those who have very little choice.” When we gathered tonight, instead of expressing in full our own reactions and questions of today’s court proceeding (we shared a single word each, which you will find below!), we read twice over the poetry of Abdul al Baddah, so that the most words shared in our circle would come from a man detained at Guantánamo.

We are encouraged, as always, by all everyone’s support. Yesterday evening, we had our first “Faster’s Phone Call”, with folks joining in from Western Massachusetts, Charlottesville and New York City. Luke called in from South Dakota and shared with us how, while fasting, “life slows down… I’m taking more time for prayer, more time with others, more time to think creatively about how to respond to Guantánamo.” We take these words to heart, each in our own way, as we head together into the fourth day of fasting – a day, no doubt, full of surprises, changes, anxiety, questions, deliberation. But we remain ever hopeful and assured of our witness.

In Peace,

Witness Against Torture

P.S. Here is a link to the post-trial press release, including courtroom sketches from our very own Deb VanPoolen.

Contents

1) Day 3 – Courtroom Analysis (By Molly Kafka)
2) Day 3 – Trial Debrief, In Brief (One Word, Each Person)
3) Note of Solidarity, Leigh in Champaigne, Illinois

Plus

1) “On Guantánamo’s 10th Anniversary, British Ex-Prisoners Talk About Their Lives, and Call for the Release of Shaker Aamer” (Andy Worthington)
2) “Guantánamo: Ten Years Later” (David Cole)

Courtroom Analysis

(by Molly Kafka)

Before the jury was called into the courtroom, day three of the WAT trial began with an interesting comment by the government’s lawyers during the jury instruction debate. At one point, while Judge Fisher was considering whether or not to include the language of the First Amendment in the jury instruction, the government objected: “The fact that the defendants were exercising their First Amendment rights is inconsequential to the case at hand.” The audience, which primarily consists of WAT supporters, collectively gasped at the government’s remark. Judge Fisher promptly challenged the prosecutor by asking whether he really meant what he said. The government floundered and admitted they did not mean, in totality, the remark about the defendants’ First Amendment rights.

The government did not stop there, however. Instead, when Judge Fisher continued the discussion about the jury instruction, explaining that part of the instruction includes the defense’s theory of the case: “intent to petition government about grievances concerning the detainment of prisoners at Guantánamo Bay.” At that moment, the government objected: “Your Honor, the defendants did not have a right to petition their government in the House of Representatives.” Judge Fisher did not entertain this objection and maintained his own proposed instruction regarding the defense’s theory of the case.

After the judge decided on the final jury instructions, Brian Hynes, on behalf of all four defendants, eloquently made a Motion for Judgment of Acquittal:

“This case is about creative petitioning of the government by earnest, concerned citizens who are troubled by the contradictions between our rights as free citizens and the detention regime at Guantánamo—the holding of persons without charge or trial. I would argue that I not only have the right to petition my government at appropriate times and places—but I would also argue that I have a citizen’s right not to live in a society where persons are subject to arbitrary detention. And that reality constitutes an urgency that presses against reasonable limits on protected speech. Shaker Aamer has waited ten years to get a trial in a U.S. court. This is the crisis that we are responding to. The First Amendment may not be absolute, but neither are the limits imposed on it. On this basis, we move for a judgment of acquittal on all four defendants.”

Judge Fisher denied the motion.

The jury then came back into the courtroom for the government’s closing argument: “Rules are rules, laws are laws.” The government went on to encourage the jury to ignore all of the “distractions” surrounding the trial because, they argued, what the trial was really about was “decorum” and unlawful conduct. While reminding the jurors that four officers positively identified all four defendants, the govrenment repeated one phrase describing the defendants’ conduct in particular: “loud language and disorderly conduct.” They went on to argue that the government successfully proved beyond a reasonable doubt that the defendants committed all of the elements of the crime. In closing, the government speculated that the jurors were probably asking themselves, “Why should I care about this case?” They explained to the jury that they should care “because this is the law, because the House shouldn’t be subjected to a disturbance such as this. The House was conducting one of their most important duties: voting. And the defendants interrupted that orderly conduct.”

Next, Carmen Trotta rose to give the defense’s closing argument. Just as he began his opening remarks on Tuesday, Carmen again thanked the jury for being a part of his due process: “As an aspiring democracy, we are off to a good start in the due process we see here.” Carmen made it clear to the jury that the government had not, in fact, proved beyond a reasonable doubt that the defendants’ conduct satisfied the statute’s requirements. The defendants went to the House with the intent to petition their government. For many years and in many ways, the defendants attempted to communicate in other forums, but their efforts were fruitless. Therefore, Carmen argued, going to the House of Representatives on June 23rd, the day the House was to address the Defense Authorization Bill, was the perfect time and place for the defendants to communicate with their representatives. Carmen candidly said, “I was the first to stand and address my government, and proudly so.” During Carmen’s conclusion, the government objected to, and the judge sustained the objections, of any mention of Guantánamo Bay, detainees, and the treatment of undocumented people and Muslims in the US. Finally, Carmen simply said to the jurors, “You are the conscience of this community. You are the final determiner of truth.”

The jury deliberated for a couple of hours and returned to the courtroom with the verdict for three defendants. The jury found Carmen Trotta, Shakir Ami (Brian Hynes), and Mike Levinson guilty of unlawful conduct. In closing the day, the jury continued to be deadlocked on the verdict of Judith Kelly. We will return to court Friday morning to await their decision and for the sentencing of those convicted.

Trial Debrief, In Brief

(One Word, Each Person)

Necessary Committed Predictable Frustrating Exhausting Eschatological Hurt Shoot Unsurprising Expected Frustrated Remorseless Anxious Curious Sober Admiration Oppression Illogical Sad Curious Recommitted Faith Apocalyptic Stumped Disappointed Undetermined Predicable Dilemma Happy to be here (Dan Mauk joined us this evening!) Expected Farce Appeal Itchy Confusing Playground Stymied Challenging Conflicted

Letter of Solidarity

Dear Matthew:

Those of you in Washington are daily in my prayers. The last time I participated “remotely” in this fast/witness I felt quite disconnected from the group and keeping the fast was extremely difficult. My experience this time is different: I feel more connected to the prisoners and victims of torture—the victims of U.S. policies and practices. Being linked with your fast and witness in D.C. makes my own fast an opportunity for personal atonement, an apology, and a means to accompany those who are hungry not by choice but by our policies.

Thank you all.

Leigh Champaign, Illinois.