CHICAGO — When three suspects appear in a Chicago court Tuesday to face terrorism-related charges for allegedly plotting to hurl Molotov cocktails at President Barack Obama's campaign headquarters, it will be state prosecutors, not federal attorneys, handling the case.
Illinois was one of at least 36 states to adopt anti-terrorism laws in the weeks after the Sept. 11, 2001, attacks, in largely symbolic gestures, and most lawmakers agreed the fight was best left to the legions of U.S. government lawyers. So the decision by the Cook County State's Attorney Anita Alvarez's office to test Illinois' law for the first time against activists arrested before last month's NATO summit surprised many legal experts. Some wondered why prosecutors didn't opt for standard explosives charges and questioned why federal authorities aren't more involved.
"These are completely unchartered waters," said Phil Turner, a former federal prosecutor. With nothing close to the manpower and expertise of the U.S. attorney's office in Chicago, state prosecutors' ability to win terrorist convictions is "very much in doubt," he said.
Few state prosecutors elsewhere have even tried.
The New York-based Center on National Security says states have attempted to prosecute terrorism charges no more than a few dozen times, though precise figures were not available. By contrast, U.S. Department of Justice data indicates 403 people were convicted in federal courts for terrorism from 2001 to 2010 alone.
Among the successful prosecutions under state terrorism laws was that of John Allen Muhammad, the mastermind of the 2002 "Beltway Sniper" attacks that paralyzed the Washington, D.C., area.
Other cases haven't withstood scrutiny on appeal.
The New York Supreme Court Appellate Division found in 2010 that state prosecutors misapplied the state's anti-terrorism law by equating a deadly gangland shooting to terrorism. The ruling slightly lessened the severity of Edgar Morales' 2007 convictions – for instance, changing "manslaughter in the first degree as a crime of terrorism" to "manslaughter in the first degree."
In Illinois, court documents paint a sinister picture of the would-be firebombers, who also allegedly planned attacks on police stations. As he poured gasoline into beer bottles, one of the activists, Brian Church, asked if the others had ever seen a "cop on fire," prosecutors allege.
Church, 20, of Fort Lauderdale, Fla.; Jared Chase, 24, of Keene, N.H.; and Brent Vincent Betterly, 24, Oakland Park, Fla., are charged with conspiracy to commit terrorism, material support for terrorism and possession of explosives. If convicted on all counts, they could each face a maximum 85-year prison term. They're scheduled to appear in court Tuesday.
A fourth activist allegedly bragged about hiding explosives in a hollowed-out "Harry Potter" novel and boasting he could blow up a Chicago bridge. Sebastian Senakiewicz, 24, of Chicago, is due in court Wednesday. He is charged with falsely making a terrorist threat.
All four men intend to plead not guilty.
That Illinois has never used its terrorism laws could be a plus and minus for the defense, said Senakiewicz's attorney.
"We can't look at other trials on these charges because there haven't been any," which makes pre-trial preparations harder, Melinda Power said. "On the other hand, since this law hasn't been challenged from a constitutional point of view, we could do that here."
Defense attorneys tried to cast doubt on the allegations by saying they are based on the word of informants or undercover police, known as "Mo" and "Gloves," who ingratiated themselves with activists weeks before the NATO summit.
Attorney Sarah Gelsomino claims prosecutors used terrorism charges to try to scare off summit protesters. It was reminiscent, she says, of a case in which eight activists were charged under Minnesota laws with conspiracy to riot in furtherance of terrorism days before the 2008 Republican National Convention in St. Paul. The charges were later reduced or dropped.
"If these guys are really scary terrorists, why aren't the feds on this?" Gelsomino said.
Alvarez spokeswoman Sally Daly insisted the goal is to make the terrorism charges stick.
"We don't bring charges to send warnings," she said.
Daly also said it would be inaccurate to suggest federal authorities were uninvolved, noting the presence of FBI and U.S. Secret Service agents during arrests. A spokesman for the U.S. attorney's office in Chicago declined to comment.
But Turner said Gelsomino could have a point.
"The feds may have looked at this and said to themselves, `This doesn't rise to the level of terrorism as we understand terrorism," he said. "Otherwise, they would have jumped on this case – no doubt about it."
Karen Greenberg, head of the Center on National Security, said the suspects themselves should pray U.S. attorneys don't take over their case, noting their 90 percent conviction rate in terrorism cases.
"If you're these kids," she said, "you don't want this passed to the feds."
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