A high-stakes game is being played in the United States today called, "To Catch a Terrorist." The public need not worry, though, as the risks are surprisingly low. In this game, the police claim to prevent nefarious terrorist plots, while in reality they're taking credit for foiling the same victimless crimes they themselves manufacture. This deceitful strategy is used primarily on Muslims and Arab-Americans, but a string of recent cases shows how political dissidents are also being entrapped, both figuratively and literally.
Last year, Cook County State's Attorney Anita Alvarez dusted off a rarely used 11-year-old Illinois State terrorism statute and, with great fanfare, charged several dissidents with crimes of terrorism on the eve of a national political protest. The NATO 5, as they became known, have since garnered widespread support in Chicago, across the country, and around the world.
This week marks a dramatic shift in their lengthy prosecution. Attorneys for three of the defendants, most of whom are members of the National Lawyers Guild (NLG), will be filing briefs today, January 25th in order to challenge the constitutionality of the state terrorism statute under which four of the activists were originally charged. If the court finds the law to be unconstitutional, the three highest profile cases could go to trial in September with no terrorism charges, fewer felonies to defend against, and facing a far less ominous sentence than the current 40 years in prison.
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Wednesday, May 16th wasn't particularly memorable, except that it fell three days prior to the North Atlantic Treaty Organization (NATO) summit, a National Special Security Event (NSSE) held in Chicago from May 19th-21st. It was the first time in 13 years that NATO member states had met on U.S. soil, well before the 9/11 attacks, and the Obama administration funneled millions of federal taxpayer dollars into a massive "security" apparatus to ensure a seamless summit.
Ever since the NSSE designation was established by President Clinton in 1998, it has been synonymous with heavy surveillance and infiltration of political groups, police brutality, preemptive raids and mass arrests. The NATO summit in Chicago last spring would be no exception.
In the dark of night with guns drawn, the police used "no-knock" search warrants to break down the doors of an apartment building in the Bridgeport district of Chicago at approximately 11:30 pm that Wednesday. Unbeknownst to the thousands of anti-NATO activists in the city at the time, and members of the local NLG chapter which was providing legal support for the demonstrations, the police arrested nine activists, seizing computers, cell phones, political literature and other personal belongings from the building. Police also searched neighboring apartments and questioned residents, allegedly repeatedly calling one of the tenants a "Commie faggot."
The Chicago Police Department (CPD) refused to acknowledge they had arrested anyone in Bridgeport that night, let alone divulge where they were being held. It wasn't until the following afternoon that NLG attorneys determined nine activists had been taken to the Organized Crime Division of the CPD. Within 72 hours, six of the nine were released without charges.
On Saturday, the first day of the NATO summit, the three remaining activists were brought before Cook County Judge Edward Harmening on charges of possessing an incendiary device, material support for terrorism, and conspiracy to commit terrorism. The prosecutor wasted no time in labeling the defendants as "self-proclaimed anarchists," as if to inherently equate thought crime and political ideology with criminal activity or terrorism, though Assistant State's Attorney Matthew Thrun provided no evidence to substantiate his hyperbole. Thrun accused the three defendants -- Brian Jacob Church, who was 20 at the time, and Jared Chase and Brent Betterly, who were both 24 -- with preparing to commit "terrorist acts of violence and destruction directed against different targets in protest to the NATO summit":
Specifically, plans were made to destroy police cars and attack four CPD stations with destructive devices, in an effort to undermine the police response to the conspirators' other planned action for the NATO summit. Some of the proposed targets included the Campaign Headquarters of U.S. President Barack Obama, the personal residence of Chicago Mayor Rahm Emmanuel (sic), and certain downtown financial institutions.
Although no evidence of the allegations was provided, Assistant State's Attorney Thrun asked the court to impose a bond of $5 million for each defendant. Judge Harmening rejected his request, but was apparently convinced enough by the State's proffer to impose an equally unreasonable amount of $1.5 million bond each. The prosecutor and judge likely reasoned that such a prohibitively high bond would keep the three defendants imprisoned until trial. They were right. Church, Chase, and Betterly have been held in Cook County Jail for more than eight months now, with their trial currently scheduled to begin on September 16, 2013, more than a year after they were arrested.
Shortly after tracking down Church, Chase, and Betterly, the Guild's legal team discovered two more activists -- Sebastian Senakiewicz and Mark Neiweem -- who were also surreptitiously arrested on terrorism-related charges. Senakiewicz, 24, was arrested at his Chicago home the day after the Bridgeport raid and charged with falsely making a terrorist threat, another felony under the State's 2001 terrorism statute. Neiweem, a 28-year-old local activist, was arrested the same day, but in a far more sensationalized way. In broad daylight, he was snatched by numerous undercover police officers from Michigan Avenue, one of the busiest streets in the city, undoubtedly aimed at inducing fear in those witnessing the aggressive apprehension. Neiweem was slapped with felony solicitation and attempted possession of an incendiary device, but was not charged under the State's terrorism statute as the others were.
NLG attorneys representing Senakiewicz and Neiweem argued at their bond hearing that they were denied their Constitutional due process rights by being refused a hearing within 48 hours. Senakiewicz was allegedly held for 68 hours without seeing a judge or being able to access a phone or his attorney, who finally got to visit Senakiewicz only minutes before his bond hearing. Neiweem was allegedly held for 66 hours before getting a hearing, and was denied medical treatment in detention. According to the NLG, on several occasions Neiweem was forced to choose between seeing his attorney and going to the hospital.
Once before a judge, the State's Attorney painted Senakiewicz and Neiweem as violent criminals and convinced the court to impose similarly high bonds of $750,000 and $500,000 respectively. Unable to raise sufficient funds, Senakiewicz and Neiweem also remain incarcerated at Cook County Jail.
But the terrorism-related charges weren't the only threads connecting the NATO 5 cases together. At least two undercover Chicago police officers are also believed to have been integral to each defendant's arrest and prosecution. Shortly after the Bridgeport raid, Occupy Chicago activists began piecing together a CPD spying operation that had lasted for months before the NATO summit. As early as March, two assumed activists who went by the names "Mo" and "Gloves" began working with the Occupy Chicago movement. On April 13th, at least one of them was arrested with a small group of Occupy Chicago activists, who had held a demonstration with STOP (Southside Together Organizing for Power) in order to keep open the Woodlawn Mental Health Clinic, which had been scheduled for closure by Mayor Rahm Emanuel.
By the time Church, Chase and Betterly arrived in Chicago around May Day, Mo and Gloves had fully ingratiated themselves in the ranks of the Occupy movement and were supposedly involved in helping plan the NATO demonstrations. By contrast, the three activists from Florida were unfamiliar with the political terrain in Chicago and, more than most, were vulnerable to manipulation by two unsuspected undercover cops.
While little is publicly known about the interactions between Church, Chase, and Betterly and the infiltrators, we do know that Mo and Gloves were arrested with the nine activists the night of the Bridgeport raid. For the past six months, defense attorneys have been poring over trillions of bytes of recorded and written information, an overwhelming amount of data that was dumped on them by the prosecution, thereby significantly complicating and hampering the discovery process.
Of course, that's part of the game... hiding the ball in plain sight, especially if the ingredients of entrapment are present. The defense wants to know how instructive Mo and Gloves might have been in getting the three to engage in the alleged criminal behavior. Did the undercover cops or their federal counterparts instigate the idea to use Molotov cocktails? How dependent were the three activists on Mo and Gloves to execute the plan? Answers to these questions would better enable the attorneys for Church, Chase, and Betterly to mount an entrapment defense, but by contrast the lack of answers will make that effort much more difficult.
To successfully assert an entrapment defense, the accused must show by a preponderance of the evidence that they were induced or coerced to commit the crime. By no means is this easy to do in a court of law. In fact, no terrorism charges since 9/11 have been beaten based on an entrapment defense, though there have been numerous cases involving undercover police and paid informants.
Three activists were charged with federal terrorism-related crimes during the 2008 Republican convention protests in St. Paul for possession of unused Molotov cocktails. And, in advance of May Day protests last year, five Occupy Cleveland activists were arrested and charged with attempting to blow up a bridge with fake explosives, supplied by the FBI. In each of these cases, paid FBI informants cultivated relationships with activists in order to carry out plans that would never have been hatched or developed without law enforcement participation.
The entrapment defense, however, opens the door for prosecutors to argue that Church, Chase, and Betterly had the propensity to commit the crime. And, while the State's Attorney must show beyond a reasonable doubt that the three were predisposed, that open door is still a serious concern for the defense.
With the discovery process scheduled to wrap up by February 25th, the defense is continuing to push for more information, especially related to the federal government. The Federal Bureau of Investigation (FBI) is mentioned in the State's Attorney's proffer and the defense wants to know the extent of the agency's involvement. The FBI is commonly integral to these types of criminal investigations, as the lead counter-intelligence agency for NSSEs. However, the FBI chose not to bring federal charges and has tried to downplay its involvement in the case.
Right now, though, the focus for the defense is challenging the IL State terrorism statute, 720 ILCS 5/29D. Indicating early on that it intended to question the basis of the charges being brought by the State's Attorney, the defense is now preparing to file its initial brief today, January 25th. Attorneys will argue that the terrorism statute is so vague as to be unconstitutional on its face and as applied against their clients. The goal of the legal challenge is not only to dismiss terrorism charges against the NATO defendants, but also to prevent the State's Attorney from using a flawed criminal statute against others in the future.
"The State's Attorney is using sensational terrorism charges to justify the extensive investigation against Occupy Chicago, including months of infiltration as well as this expensive and ongoing prosecution," said Sarah Gelsomino, who is representing Church as an attorney with the People's Law Office. "We intend to show that the State's terrorism statute is bad law that should be stricken."
The State's Attorney will have until February 15th to reply to the defendants' challenge. Cook County Judge Thaddeus L. Wilson, who is presiding over the case, is expected to rule some time after February 25th, when the defense files its final brief in the pre-trial challenge. If the IL State terrorism statute is found to be unconstitutional, either facially or as applied, the defendants' highest-level felonies could be thrown out. However, that would not necessarily mean their cases would be dismissed entirely. When Church, Chase, and Betterly were finally indicted by grand jury on June 12th, the State's Attorney had tacked on eight more felonies, including additional counts of possession of an incendiary device, attempted arson, solicitation to commit arson, conspiracy to commit arson and two counts of unlawful use of a weapon, for a total of eleven charges each. Prosecutors have been known to overcharge in criminal cases as a means of getting at least some of the charges to stick. It's difficult to deny that such a strategy is being used in this case.
Though their cases and situations are different than the three most seriously charged, Senakiewicz and Neiweem are getting the same level of support from activists in Chicago and elsewhere around the country. Neiweem is a local activist who has been targeted before by police for his lawful political activity. On at least one occasion since his incarceration, Neiweem allegedly has been badly beaten and hospitalized by Cook County Sheriff jail guards, and allegedly has been repeatedly held in isolation. Senakiewicz, an activist and Polish immigrant living in Chicago who was facing up to 15 years in prison, accepted a plea bargain in November, in which he agreed to a single terrorism-related felony, and a 4-year prison sentence. Although the prosecution led Senakiewicz to believe he would only have to serve a 120-day sentence in an out-of-county "boot camp" for non-violent offenders, he was ultimately ineligible for the program and will be forced to serve the entire sentence. Supporters also fear his immediate deportation upon release.
"Honestly, how serious was this case?" asked Guild attorney Jeff Frank, who represented Senakiewicz (also known as "Sabi") with fellow NLG attorney Melinda Power. "Sabi is guilty of imprudent language," said Frank. "That's hardly grounds to extract a guilty plea for a serious felony, but that's how Ms. Alvarez has chosen to spend the taxpayers' resources."
So, why were the NATO 5 arrested in such a spectacular way, just days before a controversial summit in Chicago? And, why are they being used as pawns in a high-stakes game of "To Catch a Terrorist?" Maybe the answers partly lie in the questions.
The motivations are actually just beneath the surface. The State's Attorney's aforementioned need to justify the investigation, infiltration and prosecution of the NATO 5 is likely a primary impulse. The tactic of preemptive police raids, a common trademark of NSSE law enforcement operations used to chill imminent protest activity, cannot be discounted. But, there is also a coordinated effort by local and federal officials to perpetuate a billion-dollar "protection racket," in which law enforcement uses an aggressive counter-terrorism approach to both instill fear in the public and then, after solving the "crime," induce the perception of safety. It's also reasonable to assume that the NATO terrorism cases are an extension of the ongoing efforts to monitor and undermine the Occupy Wall Street movement. Perhaps there are elements of each in the effort to prosecute the NATO 5.
Regardless of the motivations, the NATO 5 case is indicative of a growing trend in law enforcement strategies used during political demonstrations: entrapping dissidents in manufactured terrorism crimes. As Glenn Greenwald recently wrote in the Guardian:
The most significant civil liberties trend of the last decade, in my view, is the importation of War on Terror tactics onto U.S. soil, applied to U.S. citizens... It should be anything but surprising that the FBI -- drowning in counter-terrorism money, power and other resources -- will apply the term 'terrorism' to any group it dislikes and wants to control and suppress.
Disclosure: Kris Hermes is a member of the National Lawyers Guild.