On the ten-year anniversary of the launch of the Iraq War, another tentacle of the ever-burgeoning post-9/11 national security state unfolded in a lively courtroom in Chicago in the form of a domestic terrorism case.

At the Cook County Courthouse in Chicago, People’s Law Office attorney Michael Deutsch argued that Illinois’ domestic terrorism statute – applied to three activists who were in Chicago to protest the North Atlantic Treaty Organization (NATO) Summit in May 2012 – is unconstitutional. Ten months since the charges were first doled out by the State of Illinois, Deutsch and his team of attorneys still await evidence from the prosecutors in the discovery phase of the trial.

Judge Thaddeus Wilson presided over the contentious two-hour-long oral duel between state prosecutors and the defense team representing Brian Jacob Church, Brent Betterly and Jared Chase – collectively known as the “NATO 3.” The three came to the Windy City last year from Florida and New Hampshire to join protesters demonstrating in the streets against NATO’s wars.

The argument pertained to the preemptive, military-style apartment raid and eventual arrest of three young men – eventually five – on charges of conspiracy to commit acts of domestic terrorism in the days leading up to the NATO Summit.

The prosecution’s argument focuses on comments made by the three to undercover Chicago police officers, including a question Church allegedly posed asking if they had ever seen a “cop on fire.” The prosecution used this phrase, without offering any context for the conversation, to attempt to show that the three had intent to actually carry out the crime.

“On the tenth anniversary of a war that’s killed over 1 million Iraqi civilians, Attorney General Anita Alvarez has the gall to charge these protesters who were organizing against war ‘terrorists,'” Joe Iosbaker, a Chicago activist raided by the FBI in 2010, said at a press conference before the hearing. (Alvarez’s actual title is Cook County State’s Attorney; Illinois’ attorney general is Lisa Madigan.)

Defense Argues Illinois Statute Unconstitutional, Awaits Discovery Documents

The Illinois terrorism statute, one of dozens of state-level terrorism laws passed in the wake of the 9/11 attacks, was brought off the shelf to charge the NATO 3 with plotting to throw Molotov cocktails at strategic targets during the summit.

Merely a day after the court proffer detailing the charges was presented on May 19, it was revealed that two Chicago Police Department officers going by the names “Mo” and “Gloves” or “Nadia” worked in an undercover capacity for two months leading up to the summit to obtain the audio-recorded evidence; Deutsch has alleged the NATO 3 are victims of entrapment.

It was not until June 13 that actual indictments were handed out to the three, weeks after the usually mundane offering of a bail bond was transformed into a major public relations event by Chicago Police Department head Garry McCarthy and State Attorney Alvarez which quickly set off sensational mainstream media coverage.

The NATO 3 lawyers argued at the hearing, as they asserted in a prior motion and memorandum, that the Illinois terrorism statute is so vague it could ensnare the innocent and criminalize First Amendment rights. In the case of the NATO 3, they argue, it did both, leading the defense team to challenge the constitutionality of the Illinois statute on its face.

“This issue does not only concern the defendants, but should concern every citizen in Illinois and beyond, [as it] allows politically motivated mayhem to be prosecuted as terrorism,” Deutsch stated at the podium facing Judge Wilson.

Unlike other state statutes, Deutsch argued, the Illinois law does not require that a crime be carried out. Rather, it requires that a “significant portion” of the population feel “coerced” or “intimidated” by the words or actions of the person charged with terrorism.

“[The] statute [is so overbroad that it] criminalizes speech that should be legal,” said Deutsch, further arguing that if the case is heard by a jury, members would be unable to interpret the law effectively as currently written.

Prosecution Responds

The prosecution’s case centered on the necessity of preemptive action against potential threats at high-level national and international gatherings.

“If done during the NATO Summit, when the eyes of the world are upon you, then you have a different situation,” said one of the prosecutors, arguing that the Illinois law was made more broad to cover the nature of US Secret Service Special National Security Events like the Summit, when dignitaries from around the world are gathered together in a confined space.

Prosecutors say that Church asked undercover detectives, “Have you ever seen a cop on fire?” which they argue was threatening to a significant portion of the civilian population even though no action was taken.

The prosecution also argued that the law needed to be written in broad-sweeping fashion to keep citizens safe. The state’s legal team utilized the “1 percent doctrine,” logic espoused in the Bush administration’s 2002 National Security Strategy, arguing that the terrorism statute “is intended to stop this kind of grave conduct before it starts.”

The same argument was employed to justify the launch of the war in Iraq, where Saddam Hussein’s alleged possession of weapons of mass destruction (WMD) were never found. An identical “world is a battlefield” doctrine has continued under the Obama administration.

Lastly, prosecutors argued that the rare use of the law since 9/11 serves as Exhibit A that it can be utilized with proper discretion. When the defense took issue with the nature of the law itself, prosecutors said they were only prepared to discuss the threat they argue the NATO 3 posed – not a “hypothetical, but an on-the-ground reality and threat.”

Defense Still Awaits Delivery of Discovery Documents

Another issue of contention was fulfillment of the bill of particulars, or particular documents the defense asked for from the State of Illinois during the discovery phase.

“There is still things that we asked for that they haven’t given us, and they keep saying they need more time,” Deutsch told Truthout. “There is also an issue about documents from the federal government, as we think the FBI was certainly involved in some way in the arrest. We think the FBI was involved during the period of time in which these undercover police were involved with our clients and there might be memorandums portraying their involvement.”

In short, though Judge Wilson announced plans to hand out the legal ruling by March 27, the defense has still not received all of the factual material it needs to make a legal case on behalf of the NATO 3.

The Scene From the Inside the Courtroom

Church, with short red hair, and Betterly, with long blonde hair in a ponytail, wore bright yellow protective-custody-level Department of Corrections (DOC) prison garb. Chase, bearing short dark-brown hair, wore beige DOC clothing.

They were ushered into a sun-dappled courtroom with dark wood benches at 2 PM by over half a dozen Cook County Sheriff officers on one side and their six-strong legal team and about a dozen supporters on the other.

The hearing began with a bang when a dispute broke out when defense attorney Thomas Durkin asked Judge Wilson why the larger-than-normal police presence was necessary. The dispute ended when Wilson abruptly shouted, “You have been heard!” multiple times.

All of the NATO 3 appeared relaxed and attentive throughout the hearing. They are being held in Cook County Jail, which was under federal investigation for its conditions in 2008.

The Criminalization of Dissent

The NATO 3 story shares a common narrative thread with other post-9/11 domestic terrorism prosecutions: politically motivated legal statutes, the role of undercover law enforcement, and defendants with what civil rights lawyers have called a mixture of bravado and foolishness.

Shahid Buttar, executive director of the Bill of Rights Defense Committee, says that demobilizing activism through the threat of jail time or stiff charges isn’t anything new.

“At this point, we have committed to describing dissent as terrorism. This goes all the way back to the Animal Enterprise Terrorism Act even before 9/11,” he said.

While the Illinois statute is one of many state-level laws passed after 9/11, Buttar says that it is unique in its ability to criminalize dissent.

“The Illinois one is the only one that criminalizes potentially nonviolent acts and that should disturb anyone,” said Buttar. “The fact that an act can be not violent, yet terrorism, should disturb anyone, and that’s exactly why we should be concerned, because we see First Amendment speech being labeled as terrorism.”