The NATO 3 and Free Speech


Respectfully submitted by Lawrence E. Rafferty (rafflaw)- Guest Blogger

You may recall the demonstrations against the NATO Summit that was taking place in Chicago in May of 2012.  On May 16th, 2012, the Chicago Police Department made a military style raid on an apartment where several demonstrators were staying during the Summit.

“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 statutein 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.”  Truthout  

For the purposes of understanding the issues here, I highly recommend reading the Illinois terrorism statute that is linked above.  The defendant’s counsel from the aptly named Peoples Law Office, are attacking this state terrorism statute on constitutional grounds which will constitute the first time any state terrorism statute has been challenged on these grounds.  The Defendants are claiming that the statute is constitutionally vague and when you read the statute, you may agree with their claim.  “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.”  Truthout

Isn’t Free Speech supposed to allow any of us the right to challenge the government by trying to convince fellow citizens through our speech, as long as our speech does not amount to yelling Fire in a crowded theater?   I am not surprised that the statute may be vague in light of the hysteria after the 9/11 attacks, but I am surprised that this is the first time any State’s terrorism statutes have been challenged.   I thought Free Speech was still guaranteed in this country by the First Amendment.  What would the NRA do if gun activists were indicted under a State statute that prohibited the use of their weapons within the state?  I think we have already seen what they would do and how the judiciary would respond.

“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.” Truthout

The NATO 3 defendants have an uphill battle in convincing the court on the constitutional vagueness grounds due to the fact that most courts have given deference to executive actions related to “terrorism” cases.  Just what constitutes terrorism?  Should mere words and peaceful demonstrations be considered terrorism?  If protesting against the NATO Summit is terrorism, wouldn’t the Nazi’s marching in Skokie have been considered terrorism as well, if the statute was in place at the time? The defendants claim that the police informants were responsible in procuring the offensive materials that they are being charged with having in their possession.  How far can police undercover operatives go before it is entrapment?

Would the Civil Rights March in Selma have constituted terrorism under this allegedly vague statute?  Is this statute just another attempt by government to control what we say and how we think?  Is the First Amendment dead in Illinois if this statute is allowed to stand, or just merely wounded?  Am I subject to charges under this allegedly vague statute for suggesting that these alleged terrorists were merely exercising their First Amendment rights?  What do you think?

Additional Sources:  CNN; Firedoglake

38 thoughts on “The NATO 3 and Free Speech”

  1. Worth a listen:

    Attorney: “NATO 3” Activists Detained on Terror Charges in Chicago Are Victims of Police Entrapment

    SARAH GELSOMINO: Right. These three individuals who are facing these charges were stopped the previous week by the Chicago Police Department without—again, without any justification whatsoever, a legal justification, for that stop. They were pulled over by the Chicago Police Department, surrounded by numerous police cars and multiple police officers, and were interrogated for hours about all kinds of things.

    And I met with them, actually, after that video was released on the internet, and they said to us that as soon as they identified themselves as being associated with the Occupy movement—they came up from Occupy in Florida to join with Occupy here in Chicago to protest NATO this week. They said as soon as the police learned that information, they became extremely harassing and threatening. And as you may have heard in that YouTube video, the police did in fact threaten those three—those people in that car, talked about in 19—

    AMY GOODMAN: On what grounds?

    SARAH GELSOMINO: Well, they talked about smashing skulls in 1968, and then they said, “We’ll be out there this weekend, and we’ll be coming to look for you.”

    AMY GOODMAN: And talk about—

    SARAH GELSOMINO: It’s interesting that those are the individuals who are now facing these charges.

    AMY GOODMAN: And so, what happened when they raided their place? Talk about the beer-making equipment.

    SARAH GELSOMINO: Sure. You know, what happened was, we at the National Lawyers Guild have been—have a legal support hotline, so we’ve been available 24 hours a day to get phone calls from people on the street about what’s happening, you know, where the police have been present, what kind of police misconduct has been happening, where people are arrested.

    So we received word of this midnight raid. And as soon as we received that word, we began to look for our clients. And we tried every echelon of the city of Chicago and the Chicago Police Department, as their lawyers, looking for our clients in police custody, and we could get nowhere. We called every police station. We called the superintendent’s office. We called the corporation counsel’s office, which is the city attorney’s office. And they would not tell us that they had our clients in custody. They would not tell us that our clients had ever been arrested. And they would not confirm to us that there was a raid. So we, through our own investigation, were searching and searching and finally found these individuals at 4:00 p.m. the day after they had been taken away and held in secret for the day.

    In the course of that time, we interviewed other people who were present for the raid, who observed it, and we learned some of the items that were confiscated by the police department included beer-making equipment. The individuals who live in that house are home brewers. It’s a hobby that they have. And so, at least we know some of what has been confiscated by the police department is this home brewing equipment.

    But, Amy, we have not seen any search warrant in this case. We have not seen any affidavit of probable cause. And we certainly have not seen any inventory of anything that was confiscated. So we are still really in the dark about what the state is claiming that the police department has to support these really sensationalized allegations.

    AMY GOODMAN: I want to turn to a comment Chicago Police Superintendent Garry McCarthy made last week about the police department’s preparations for the NATO protests.

    SUPERINTENDENT GARRY McCARTHY: We’ve taken the added steps to train the entire department, to at least a minimal level, to have knowledge of the crowd control procedures that everybody else is getting trained up to a higher level for. Only about a third of the department is going to be used for this event. Those officers are being trained to levels that have been called exceeding the national standards by the people who do this across the country. And the fact is, there’s a three-tiered level that we’re looking at. We are not only going to be ready, we’re going to be more ready than any other city in the country, as per the people who do that training have told us.

    AMY GOODMAN: That’s Chicago Police Superintendent Garry McCarthy on the program Chicago Tonight. Sarah Gelsomino, your response?

    SARAH GELSOMINO: You know, regardless of the training that the Chicago Police Department had—and I don’t doubt they’ve received training—what we saw happen on the streets of Chicago after the main permitted protest here on Sunday night was atrocious and absolutely unconscionable behavior by the police department. At the end of that protest, the police department rolled out massive amounts of police officers in riot gear—and not just the Chicago Police Department. We know at least—I had one legal observer who was on the street report to me that he saw at least five full buses of the Illinois State Police officers in riot gear pouring out at the end of that march. And they set themselves up in a way on the street to—in a way that did not permit easy egress from that position, from that place at the end of the march, shutting down half of the street, Cermak, and then positioning themselves so that whoever wanted to leave that march had to run a gauntlet single file through police officers in riot gear. And as you can see on the videos that have been shown around the country, the police ended up that night unleashing absolutely uncontrolled, indiscriminate violence against the individuals at the front of that march, with billy—wielding billy clubs that caused—we know of at least 70 very serious injuries, and we anticipate hearing about many, many more as the days go forward.

    AMY GOODMAN: You know, Democracy Now! was there on the streets of the protests. There was this very solemn ceremony of U.S. vets of Iraq and Afghanistan—


    AMY GOODMAN: —hurling their service and war medals at the gate of the NATO summit to return them to the generals. And as they were doing this, everyone was very quiet, thousands of people, as one by one these vets came up and explained why they were giving back their medals. The riot police were moving in, in formation, quietly lining up around the vets. And the vets were asking the police, “Why are you doing this? This is a peaceful rally,” as they—as more and more of them on horseback and in helmets came. But they could not head off these formations. Then they were able to move on, the veterans, but the police moved very quickly in on the others in the crowd. And as we walked with the veterans, a young man came running up to us, three of them. One of them had his teeth bashed in, his two front teeth. We broadcast what he had to say yesterday. Sarah Gelsomino, where are your clients now, and what are your plans?

    SARAH GELSOMINO: Our clients—well, we have many clients, unfortunately, from this week of protests. We know of over a hundred arrests that happened throughout this week, and the National Lawyers Guild stands ready to represent all of them.

    Our clients who are facing the most serious charges of terrorism are actually in solitary confinement right now, we just learned. So we have—a very top priority this week is to get them out of that extremely punitive and extremely dangerous condition that they’re in right now. They’ve essentially been in solitary now since they were picked up on Wednesday night. And we appear in court for the NATO Three this morning and for the other two tomorrow.

    As for our other clients, our top priority is to make sure everyone’s safe, that all the injuries are documented. And we will continue on to represent people in the criminal charges that they’re facing. Most people are facing now misdemeanor charges. We have a—some people were released without custody after that melee Sunday night, and—but most people, as I said, have walked out with either ordinance violations, like city tickets, or misdemeanor charges. And so, at this point, we need to move forward with that criminal representation.

    AMY GOODMAN: And the number of people you estimate were arrested in this last week, Sarah?

    SARAH GELSOMINO: Well, over a hundred, we can say for sure we’ve had reported arrested to us. On Sunday night, over 60 people were arrested.

  2. How do you make statutes, without statutory definitions of the terms involved? I mean, I know I live in Florida and all. But we HAVE statutory definitions for all that kind of stuff. I used to think it was totally stupid to define so many terms, until I actually had an action against me, and was able to use the statutory definition of a term back against the attorney who filed against me (and hadn’t bothered to check the definitions). Ever since then, I’ve been their biggest fans.

    Of course, what you come up with is that there were no definitions put in on purpose. Because we KNOW that THEY know they’re supposed to do that. They do it so they can get anyone for anything. That should NOT EVER fly in court!

    By the way, Raff, you do a great job on these articles!

  3. Would not a guide dog for a blind guy who was disseminating fliers be guilty of the terroism statute? Would not the blind be be innocence because he could not read the fliers?

  4. jim2,
    you could be right.
    the Pentagon is guilty of low-level thinking.

  5. wouldn’t a policeman with a guard dog be guilty of the terrorism statute?

  6. rafflaw 1, March 3, 2013 at 5:57 pm

    It is no surprise that the CPD had alot of help in planning these arrests for the purpose of dismantling and hindering the demonstrators right to protest.



    Agreed. I’m reminded of the following:

    “It might seem hard to believe, but it is true. The Department of Defense (DOD) considers protests an example of “low-level terrorism,” at least according to an exam DOD employees were required to take this year. You would have thought that the Pentagon learned its lesson after its nationwide surveillance program targeting peace activists, called TALON, was exposed in 2005 and roundly condemned. The program and the secretive Pentagon unit that ran it, the Counterintelligence Field Activity Agency (CIFA), were both shuttered in 2007. Apparently it is easier to kill a program than change an attitude.

    According to a whistleblower that came to the ACLU, a multiple choice question on the 2009 DOD Anti-terrorism Awareness training exam asked which of the following was an example of low-level terrorism:

    Attacking the Pentagon
    Improvised Explosive Devices (IED)
    Hate crimes against racial groups

    The right answer is: “protests.””

    And even in light of all the crazy things that have come to light over the past many years, if I told you what I know, you probably wouldn’t believe it. America went off the deep end after 9/11.

  7. IMO, the undercover cops should be charged with attempting to incite violence. Let’s come up with a statute for that. Law enforcement folks (at all levels), as well as the Secret Service, need to be held to account for the violence that is being triggered by some of their ill-conceived operations.


    Defense lawyer Michael Deutsch said that state law ought to be thrown out.

    “The statute says terrorism is an intent to intimidate or coerce a significant portion of the civilian population, and what we have alleged is those words coerce or intimidate – without any act of violence – is unconstitutionally vague, which allows for the punishment of First Amendment activity,” he said. “What does it mean to intimidate a significant portion of the civilian population? What is a significant portion, and what is meant by civilian population? All those vague undefined terms allow for the police and the prosecutors to pick and choose who to charge with the most serious prejudicial charges of terrorism.”

    He said the law could allow authorities to prosecute demonstrators at labor protests or sit-ins.

    Deutsch said the three defendants were caught with four Molotov cocktails, but he said they were prepared with the encouragement of undercover cops who infiltrated the Occupy Chicago group.

    The judge gave prosecutors 21 days to respond to the defense’s motion.

  8. AP,
    It is no surprise that the CPD had alot of help in planning these arrests for the purpose of dismantling and hindering the demonstrators right to protest.

  9. rafflaw,

    Alvarez is the mouthpiece, apparently, and CPD had its role to play, but these operations involve other agencies (FBI, Secret Service and others), as you, of course, know.

    “McCarthy stated:

    “The proactive investigative efforts of our officers in coordination with the Cook County State’s Attorney Office and our federal partners deterred the malicious planning and execution of these individual’s strategies.”

    The FBI and Secret Service were involved in the raid.”

  10. rafflaw,

    A brief detour, reading about the neighbors (comments above) — it was the first link that I clicked…

    What a friggin’ mess.

    The FBI played a role in this, as we know:

    “Top US Terrorist Group: The FBI”

    Thursday, 28 February 2013 12:10
    By David Swanson


    A careful study of the FBI’s own data on terrorism in the United States, reported in Trevor Aaronson’s book The Terror Factory, finds one organization leading all others in creating terrorist plots in the United States: the FBI.

    Imagine an incompetent bureaucrat. Now imagine a corrupt one. Now imagine both combined. You’re starting to get at the image I take away of some of the FBI agents’ actions recounted in this book.

    Now imagine someone both dumb enough to be manipulated by one of those bureaucrats and hopelessly criminal, often sociopathic, and generally at the mercy of the criminal or immigration courts. Now you’re down to the level of the FBI informant, of which we the Sacred-Taxpayers-Who-Shall-Defund-Our-Own-Retirement employ some 15,000 now, dramatically more than ever before. And we pay them very well.

    Then try to picture someone so naive, incompetent, desperate, out-of-place, or deranged as to be manipulable by an FBI informant. Now you’re at the level of the evil terrorist masterminds out to blow up our skyscrapers.

    Well, not really. They’re actually almost entirely bumbling morons who couldn’t tie their own shoes or buy the laces without FBI instigation and support. The FBI plants the ideas, makes the plans, provides the fake weapons and money, creates the attempted act of terrorism, makes an arrest, and announces the salvation of the nation.

    Over and over again. The procedure has become so regular that intended marks have spotted the sting being worked on them simply by googling the name or phone number of the bozo pretending to recruit them into the terrorist brotherhood, and discovering that he’s a serial informant.

    Between 911 and August, 2011, the U.S. government prosecuted 508 people for terrorism in the United States. 243 had been targeted using an FBI informant. 158 had been caught in an FBI terrorism sting. 49 (that we know of, FBI recording devices have completely unbelievable patterns of “malfunctioning”) had encountered an agent provocateur. Most of the rest charged with “terrorism” had little or nothing to do with terrorism at all, most of them charged with more minor offenses like immigration offenses or making false statements. Three or four people out of the whole list appear to be men whom one would reasonably call terrorists in the commonly accepted sense of the word. They intended to and had something at least approaching the capacity to engage in acts of terrorism.

    These figures are not far off the percentages of Guantanamo prisoners or drone strike victims believed to be guilty of anything resembling what they’ve been accused of. So, we shouldn’t single out the FBI for criticism. But it should receive its share.

    Here’s how U.S. District Judge Colleen McMahon understood a case that seems all too typical:

    “The essence of what occurred here is that a government, understandably zealous to protect its citizens from terrorism, came upon a man both bigoted and suggestible, one who was incapable of committing an act of terrorism on his own. It created acts of terrorism out of his fantasies of bravado and bigotry, and then made those fantasies come true. . . . I suspect that real terrorists would not have bothered themselves with a person who was so utterly inept.”

  11. Forgot the title to the previous article:

    “Collateral Damage in the War on Protesters: Neighbors of the NATO3 Cuffed, Held at Gunpoint”

    “In this exclusive, neighbors of activists accused of “terrorism” give their stories of aggressive, seemingly incompetent and extralegal harassment by the Chicago Police.”

  12. Jimmy said, “My takeaway is if it can happen to us, it can happen to anybody. It was just very, very unsettling. -AlterNet article below

    A lot of truth in the following AlterNet article (“military style raid…” in L. Rafferty’s article, paragraph 2):

    Good Americans need to wake up. Most folks have little to no idea what’s transpiring.

    Refer to the first excerpt below, referring to “extralegal harassment.” There’s a whole lot more of it than people realize. If I told the truth here, most would never believe it. We’re on a dangerous road, America.

    Thanks for doing this piece, rafflaw.


    1) In this exclusive, three neighbors of the accused activists give their stories of aggressive, politically reactionary, seemingly incompetent and extralegal harassment by the Chicago Police Department.

    2) “It seems like the cops are fabricating some of the story,” Olli said. “I can’t say whether [the activists] were guilty or innocent, but I can say to me personally there’s a smell of something that’s not quite right with how the police went about everything. Something seems off.”

    “It just doesn’t make any sense,” Jimmy said of the charges. “You don’t brew a Molotov cocktail.”

    The experience seemed to have a strong impact on all three neighbors.

    A week later Olli still has a mark on his wrists from the handcuffs, and finds it hard to talk about that night.

    Jimmy said, “My takeaway is if it can happen to us, it can happen to anybody. It was just very, very unsettling. I’ve definitely been looking over my shoulder a bit; it’s hard not to. And when I get home, peeking my head around the gate, checking the lock. Going through and checking every room in my house before I go to bed.”

    Ben, who claims no interest in politics whatsoever, said, “It’s a really basic civil liberties issue. To me the bottom line is that you don’t have to be political at all to be affected and see that this was obviously wrong.” He declined to give his real name for fear of police retaliation, and said he’s considering leaving the city or even the country. He’s been having dreams about the raid since it happened.

    “Originally my plans for NATO were to come home from work, drink some beer and watch Star Trek,” Jimmy said. “At the time I had no plans, but after that I decided that I would go to the protest. I had to voice my opinion somehow, so I went and joined the march on Sunday.”

    “In my view it’s not that there were terrorists next door,” Olli said. “It’s that the cops were terrorizing us.”

  13. voltaic,
    of course the prison will probably be run by a private company!

  14. For some reason the NRA and the 2nd Amendment screamers seem only interested in guns and bullets. I guess once all their other rights are dismantled and ignored, they can shoot their way out of the police state prison they have created and supported.

  15. Thanks Mike,
    but before I worry about the Supremes, the Cook County judge has to make her decision on the 19th.

  16. “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.”

    This statute is unconstitutional on its face as a violation of the First Amendment. Who knows though with people like Scalia, Thomas and Roberts on SCOTUS. Good catch Larry.

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