STATEMENT TO THE COURT
United States District Court, Washington, DC
by Michael S. Foley, Ph.D.
18 July 2007

My name is Michael S. Foley. I am a tenured associate professor of history at the City University of New York, where I teach at both the College of Staten Island and the CUNY Graduate Center. I live in Brooklyn. I appear in the United States District Court today in response to a summons to answer the charge of “Stationary Demonstration in a Restricted Zone,” issued by police on 18 April 2007. I was one of fourteen persons who sat in front of or chained themselves to the fence at the White House that day.

I came to Washington to support dozens of fellow activists who, on 18 April, answered similar charges for a demonstration in this courthouse on 11 January 2007 (I had participated in a demonstration outside the courthouse that day, but was not arrested). On both 11 January and 18 April, we came to Washington to protest the indefinite imprisonment and torture of nearly 400 prisoners at the U.S. Naval Base in Guantanamo Bay, Cuba. By the Pentagon’s own accounting, only 8% of the men detained at Guantanamo are classified as members of Al-Qaeda; only 5 % of the men detained were picked up on the battlefield by U.S. forces (most of the rest were turned in for bounties paid to unscrupulous Afghan warlords). And yet, most of these prisoners have been held without the privilege of habeas corpus for more than five years. We know from some of the released detainees and from lawyers that torture is widely used on the detainees - and not just at Guantanamo, but at Abu Ghraib, Bagram, and other secret prisons about which we know little else.

Your Honor, as an historian, I recognize that the United States of America has sometimes come off its hinges during wartime. Restrictions on civil liberties, and, at times, vicious, genocidal military tactics have sometimes sprung from American policy. But I also know that we, as a nation, have come to regret the worst of these. In the late 1980s, for example, the Congress and President Reagan apologized for the forced internment of 120,000 Japanese Americans during World War II - calling it the result of "race prejudice, war hysteria, and a failure of political leadership" - and paid more than $1.5 billion in reparations to assuage our national guilt. More recently, most Americans have come to see that the deaths of 3.2 million Vietnamese and 58,000 Americans amounts to one of the most shameful chapters in American history.

Perhaps even more germane, your Honor, is the long, difficult reckoning faced by the German people in the wake of World War II. For decades now, German children and grandchildren have questioned their parents and grandparents - “What did you do to stop the Third Reich?” “What did you do to stop the Holocaust?” Too few have had satisfying answers. Can there be any doubt that twenty, thirty, forty years from now, our children, grandchildren, and great-grandchildren will interrogate us with similar questions: “What did you do to stop the torture of innocents?” “What did you do to stop the illegal war on Iraq?” “What did you do to make people in other countries stop hating us?” “What did you do to restore the rule of law?”

My friends and I disobeyed police orders on 18 April because we believe in the rule of law. The essence of civil disobedience is a commitment to respect the rule of law and to, thus, face the consequences of breaking the law to make a political point. Part of our political point is that, at present, with regard to Guantanamo, the three branches of the United States government do not, apparently, respect the rule of law. The three branches have failed to see to it that the principle of habeas corpus - enshrined in the Constitution under Article I, Section 9 and affirmed in the Hamdi v. Rumsfeld decision (in which Justice O’Connor wrote for the majority, stating that habeas corpus should be available to an “alleged enemy combatant”) - is applied to the detainees. They have likewise failed to respect Common Article 3 of the Geneva Convention which, among other things, speaks directly to the cases of the detained men:
“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

That most of these prohibited acts have been carried out by the current administration is no longer in dispute. And yet, the Congress and the Supreme Court do not act to rein in the Executive.

Therefore, because of the failures of the three branches of government to live up to these American and international standards, we, on 18 April, marched in orange jump suits and black hoods from one branch to the next to make our protest. We concluded our protests at the White House, where these illegal and immoral policies originated. We accepted our arrest, and will accept the sentence of this court, out of a respect for the rule of law not shared by the president.

I respectfully ask you, your Honor, to join us. You have the power to accept writs of habeas corpus on behalf of the Guantanamo detainees. Indeed, you are in a position to send a message to the rest of the world that not all Americans support the immoral policies that have made our nation so hated around the globe. And you are in a position to speak to future generations, to let them know that some of us stood up to the evil being done in our names.
Thank you.