Friday, 19 December 2014 / TRUTH-OUT.ORG

NATO 3 Case Challenges Constitutionality of State Terrorism Statutes

Friday, 01 March 2013 00:00 By Steve Horn, Truthout | News Analysis

NATO protest.Protesters with the Occupy movement demonstrate ahead of a two-day NATO summit, in Chicago, May 18, 2012. (Photo: Ozier Muhammad / The New York Times)Nine months later and it seems like yesterday - at least for those watching from afar.

On May 16, 2012, the Chicago Police Department (CPD) conducted a violent midnight preemptive raid of an apartment housing 11 activists. Two of them, it would later be exposed, were actually undercover informants working on behalf of the CPD.

Staying in an apartment in the Bridgeport neighborhood on the south side of Chicago, the activists were in town to protest the North Atlantic Treaty Organization (NATO) Summit, held May 20-21.

The military-style raid led to the eventual charging of three of those activists in the Windy City to protest the NATO Summit with conspiracy to commit acts of domestic terrorism and other related charges - under Illinois' terrorism statute - in the form of a legal bail proffer. It was the first time the law - passed in haste by the Illinois legislature after the Sept. 11, 2001, attacks - had ever been used.

The defendants are now known collectively as the "NATO 3."

As reported by Truthout just days after the raid, these three activists, and two others slapped with similar charges, are linked together by two undercover police informants who went by the names "Mo" and "Gloves"/"Nadia."

All of the NATO 3 activists came into Chicago from out-of-town - two of them from Florida and another from New Hampshire - and have now been imprisoned in Cook County Jail for going on nine months. They are being held on $5 million bail bond each, their legal cases pending and their eventual trial date - if it ends up happening at all - still undetermined.

"These three young men came to Chicago to participate in peaceful demonstrations against the perpetual state of war fueled by NATO and instead find themselves imprisoned here while their political views are put on trial," Rachel Unterman of the NATO 5 Defense Committee told Truthout. "They are far from their natural support group of families and friends back home."

The case was moving along at crawl pace, in typical American "adversarial legalism" fashion, until the People's Law Office - part of the team of attorneys representing the NATO 3 - made a major splash.

On Jan. 25, they presented a motion and a legal memorandum to Judge Thaddeus Wilson challenging the constitutionality of Illinois' terrorism statute on its face. An oral argument between the People's Law Office and attorneys representing the State of Illinois will take place on March 19 at 2 PM in the Cook County Courthouse, soon after which a decision will be made by Wilson on the challenge.

Motion and Memo: Illinois Terrorism Statute Unconstitutional; Misuse Predictable

Post-9/11, a slew of state legislatures nationwide passed anti-terrorism legislation of the sort on the books in Illinois, as the People's Law Office points out in its legal memo. Like the passage of the federal-level PATRIOT Act, these bills passed nearly without question or debate, with legislators and citizens alike caught up in a post-9/11 frenzy.

Because terrorism is almost always a federal charge, concern over application of laws pertaining to it and the very definition of the word "terrorism" itself has almost exclusively been debated in that arena.

The Guardian's Glenn Greenwald, then writing for Salon, has expressed serious concerns over how the term "terrorism" (and "terrorist") is applied and to whom, calling it the most "meaningless and manipulated word" in a February 2010 article.

"The term now has virtually nothing to do with the act itself and everything to do with the identity of the actor," wrote Greenwald. "All of this would be an interesting though not terribly important semantic matter if not for the fact that the term Terrorist plays a central role in our political debates."

The People's Law Office set a precedent then, becoming the first legal team to issue a facial challenge of the constitutionality of one of these statutes in any state in the US. It echoed Greenwald's grievances in its memo and motion, calling the statute "impermissibly ... (and) ... unconstitutionally vague on its face" in its motion.

People's Law Office concurred with Greenwald's assessment, stating that the "identity of the actor" in this case mattered greatly, arguing in its motion that "the State improperly exploited these unconstitutionally vague terms to bring these highly inflammatory ... charges in order to ... discredit the anti-NATO demonstrators, and justify the enormous costs of the security tactics of the Chicago police during the NATO summit."

Illinois' terrorism statute defines terrorism, as the "intent to intimidate or coerce a significant portion of a civilian population." Left undefined are the concepts found within the definition itself: "intimidate or coerce," "significant portion," and "civilian population."

The lack of narrowly tailored definitions of these concepts has left the People's Law Office to conclude that the state's definition of terrorism is "vague and standard-less ... (which) allows for the arbitrary and discriminatory enforcement of the law." In the case of the NATO 3, the People's Law Office argues that they were slapped with these overly broad charges "based on their political views and the political motivations and predilections of the police and prosecutors."

Given these facts on the ground, the defense argued that the current terrorism law on the books in the Land of Lincoln violates US and state-level constitutional law both on due process and First Amendment grounds due to its sheer vagueness.

Landmark Case Possibility

Constitutional law precedent at the federal level isn't exactly cause for celebration.

"The Humanitarian Law Project case takes us in this direction at the federal level and that was a case that upheld charges of (the illegality) of material support for terrorism" for groups designated as such by the US government, Shahid Buttar of the Bill of Rights Defense Committee told Truthout in an interview.

Another cause for concern, Buttar noted, is the judiciary's loyalty to executive branches both at the state and federal levels of government - even when executive behavior is blatantly in defiance of the law.

"Courts have proven generally very deferential to the executive branch at all levels of government with respect, really, to any asserted power allegedly related to national security," he said.

That said, there is some precedent for judicial independence.

Judge Katherine Forrest issued a permanent injunction banning the implementation of the military detention provisions of the National Defense Authorization Act (NDAA) in the United States District Court for the Southern District of New York in September 2012. Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan also ruled in 2006 that the Bush Administration's National Security Agency (NSA) eavesdropping program is illegal and unconstitutional.

Given the fact that this is the first-ever legal challenge of the constitutionality of a state-level terrorism statute on its face, Buttar believes that, depending which way the wind blows, it could be a landmark ruling.

"To the extent the Illinois judiciary has a chance to be one of the first to demonstrate its independence from the executive branch that's been lacking among courts across the country, it could certainly represent - if not the beginning of a trend - a jurisprudential earthquake in reining in some of these abuses."

The decision now sits in the hands of Judge Wilson, who will make the call in a matter of weeks.

Copyright, Truthout. May not be reprinted without permission of the author.

Steve Horn

Steve Horn is a freelance investigative journalist, and a researcher and writer at DeSmogBlog.


Hide Comments

blog comments powered by Disqus
GET DAILY TRUTHOUT UPDATES

FOLLOW togtorsstottofb


NATO 3 Case Challenges Constitutionality of State Terrorism Statutes

Friday, 01 March 2013 00:00 By Steve Horn, Truthout | News Analysis

NATO protest.Protesters with the Occupy movement demonstrate ahead of a two-day NATO summit, in Chicago, May 18, 2012. (Photo: Ozier Muhammad / The New York Times)Nine months later and it seems like yesterday - at least for those watching from afar.

On May 16, 2012, the Chicago Police Department (CPD) conducted a violent midnight preemptive raid of an apartment housing 11 activists. Two of them, it would later be exposed, were actually undercover informants working on behalf of the CPD.

Staying in an apartment in the Bridgeport neighborhood on the south side of Chicago, the activists were in town to protest the North Atlantic Treaty Organization (NATO) Summit, held May 20-21.

The military-style raid led to the eventual charging of three of those activists in the Windy City to protest the NATO Summit with conspiracy to commit acts of domestic terrorism and other related charges - under Illinois' terrorism statute - in the form of a legal bail proffer. It was the first time the law - passed in haste by the Illinois legislature after the Sept. 11, 2001, attacks - had ever been used.

The defendants are now known collectively as the "NATO 3."

As reported by Truthout just days after the raid, these three activists, and two others slapped with similar charges, are linked together by two undercover police informants who went by the names "Mo" and "Gloves"/"Nadia."

All of the NATO 3 activists came into Chicago from out-of-town - two of them from Florida and another from New Hampshire - and have now been imprisoned in Cook County Jail for going on nine months. They are being held on $5 million bail bond each, their legal cases pending and their eventual trial date - if it ends up happening at all - still undetermined.

"These three young men came to Chicago to participate in peaceful demonstrations against the perpetual state of war fueled by NATO and instead find themselves imprisoned here while their political views are put on trial," Rachel Unterman of the NATO 5 Defense Committee told Truthout. "They are far from their natural support group of families and friends back home."

The case was moving along at crawl pace, in typical American "adversarial legalism" fashion, until the People's Law Office - part of the team of attorneys representing the NATO 3 - made a major splash.

On Jan. 25, they presented a motion and a legal memorandum to Judge Thaddeus Wilson challenging the constitutionality of Illinois' terrorism statute on its face. An oral argument between the People's Law Office and attorneys representing the State of Illinois will take place on March 19 at 2 PM in the Cook County Courthouse, soon after which a decision will be made by Wilson on the challenge.

Motion and Memo: Illinois Terrorism Statute Unconstitutional; Misuse Predictable

Post-9/11, a slew of state legislatures nationwide passed anti-terrorism legislation of the sort on the books in Illinois, as the People's Law Office points out in its legal memo. Like the passage of the federal-level PATRIOT Act, these bills passed nearly without question or debate, with legislators and citizens alike caught up in a post-9/11 frenzy.

Because terrorism is almost always a federal charge, concern over application of laws pertaining to it and the very definition of the word "terrorism" itself has almost exclusively been debated in that arena.

The Guardian's Glenn Greenwald, then writing for Salon, has expressed serious concerns over how the term "terrorism" (and "terrorist") is applied and to whom, calling it the most "meaningless and manipulated word" in a February 2010 article.

"The term now has virtually nothing to do with the act itself and everything to do with the identity of the actor," wrote Greenwald. "All of this would be an interesting though not terribly important semantic matter if not for the fact that the term Terrorist plays a central role in our political debates."

The People's Law Office set a precedent then, becoming the first legal team to issue a facial challenge of the constitutionality of one of these statutes in any state in the US. It echoed Greenwald's grievances in its memo and motion, calling the statute "impermissibly ... (and) ... unconstitutionally vague on its face" in its motion.

People's Law Office concurred with Greenwald's assessment, stating that the "identity of the actor" in this case mattered greatly, arguing in its motion that "the State improperly exploited these unconstitutionally vague terms to bring these highly inflammatory ... charges in order to ... discredit the anti-NATO demonstrators, and justify the enormous costs of the security tactics of the Chicago police during the NATO summit."

Illinois' terrorism statute defines terrorism, as the "intent to intimidate or coerce a significant portion of a civilian population." Left undefined are the concepts found within the definition itself: "intimidate or coerce," "significant portion," and "civilian population."

The lack of narrowly tailored definitions of these concepts has left the People's Law Office to conclude that the state's definition of terrorism is "vague and standard-less ... (which) allows for the arbitrary and discriminatory enforcement of the law." In the case of the NATO 3, the People's Law Office argues that they were slapped with these overly broad charges "based on their political views and the political motivations and predilections of the police and prosecutors."

Given these facts on the ground, the defense argued that the current terrorism law on the books in the Land of Lincoln violates US and state-level constitutional law both on due process and First Amendment grounds due to its sheer vagueness.

Landmark Case Possibility

Constitutional law precedent at the federal level isn't exactly cause for celebration.

"The Humanitarian Law Project case takes us in this direction at the federal level and that was a case that upheld charges of (the illegality) of material support for terrorism" for groups designated as such by the US government, Shahid Buttar of the Bill of Rights Defense Committee told Truthout in an interview.

Another cause for concern, Buttar noted, is the judiciary's loyalty to executive branches both at the state and federal levels of government - even when executive behavior is blatantly in defiance of the law.

"Courts have proven generally very deferential to the executive branch at all levels of government with respect, really, to any asserted power allegedly related to national security," he said.

That said, there is some precedent for judicial independence.

Judge Katherine Forrest issued a permanent injunction banning the implementation of the military detention provisions of the National Defense Authorization Act (NDAA) in the United States District Court for the Southern District of New York in September 2012. Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan also ruled in 2006 that the Bush Administration's National Security Agency (NSA) eavesdropping program is illegal and unconstitutional.

Given the fact that this is the first-ever legal challenge of the constitutionality of a state-level terrorism statute on its face, Buttar believes that, depending which way the wind blows, it could be a landmark ruling.

"To the extent the Illinois judiciary has a chance to be one of the first to demonstrate its independence from the executive branch that's been lacking among courts across the country, it could certainly represent - if not the beginning of a trend - a jurisprudential earthquake in reining in some of these abuses."

The decision now sits in the hands of Judge Wilson, who will make the call in a matter of weeks.

Copyright, Truthout. May not be reprinted without permission of the author.

Steve Horn

Steve Horn is a freelance investigative journalist, and a researcher and writer at DeSmogBlog.


Hide Comments

blog comments powered by Disqus