Three Occupy activists known as the “NATO 3,” who came to Chicago to protest at the North Atlantic Treaty Organization (NATO) summit last May and were arrested and later indicted on terrorism charges, are challenging the constitutionality of an untested Illinois anti-terrorism statute under which they were charged.

Lawyers submitted a motion in court today asserting the definitions of “terrorism” in the state terrorism law are “unconstitutionally vague” and the state of Illinois had “improperly exploited these unconstitutionally vague terms to bring these highly inflammatory “terrorism” charges in order to prejudice the defendants, discredit the anti-NATO demonstrators and justify the enormous costs of the security tactics of the Chicago police during the NATO summit.”

Brian Church, 22, of Fort Lauderdale, Florida, Jared Chase, 27, of Keene, New Hampshire, and Brent Betterly, 24, who lived in Massachusetts, were each arrested along with six other people in a preemptive raid by Chicago police on an apartment unit in Bridgeport, Chicago, on May 16. As Firedoglake reported, they were disappeared and held without charge (along with others who were arrested) until Thursday, May 17. Then, those arrested began to be released. By late Friday, May 18, the three were the only activists in jail and early on Saturday, May 19, it was announced they would be charged with material support for terrorism, conspiracy to commit terrorism and possession of explosives or explosive or incendiary device.

On June 13, they were indicted on those charges and also charged with “possession of an incendiary device, attempted arson, solicitation to commit arson, conspiracy to commit arson and two counts of unlawful use of a weapon.” That brings the total number of charges the men face to eleven. (The prosecutors made defendants wait until a week after to see an actual copy of the indictment.)

The motion filed by the lawyers for the NATO 3 alleges “lack of standards” in the law have made it possible to “arbitrarily demonize the defendants as ‘terrorists’ based on their political views and the political motivations and predilections of the police and prosecutors.” It suggests that under the “statutory definition of terrorism” First Amendment-protected acts like “labor strikes, peaceful occupations and sit-ins, political protests and boycotts” could be implicated or possibly impacted.

The Illinois anti-terrorism law incorporates in its definition of terrorism ”intent to intimidate or coerce a significant portion of a civilian population.” As the filing argues, “The use of the terms intent to ‘intimidate or coerce’ without requiring the element of force or violence, and without excluding First Amendment activities or civil disobedience, impermissibly allows for the criminalization of constitutionally protected conduct. The vague nature of the terms ‘coerce,’ ‘intimidate’ and a ‘significant portion of the civilian population’ also allows for the arbitrary and discriminatory enforcement of the law.” And “terrorist act” does not require that such an act violate state or federal law, which makes it possible to “encompass lawful conduct.”

The motion further suggests:

…Seeking to maximize the sensationalism of the announcement of charges the day before a massive non-violent anti-NATO protest in Chicago in order to discourage and frighten people from attending the protest, and to justify the massive expenditure of public and private dollars to host and provide security for the NATO conference, the prosecution filed a press release under the guise of a bail proffer, calling the defendants terrorists and anarchists, and alleging a series of violent acts, none of which ever occurred. Because of the vague parameters of the statute, the State was able to proclaim the defendants to be “terrorists” without any evidence that they “intended to intimidate or coerce a significant portion of the civilian population.”…

Indeed, Illinois State’s Attorney Anita Alvarez put her name to this statement released on May 19, the day before the NATO summit was scheduled to begin:

…These individuals are domestic terrorists who came to Chicago with an anarchist agenda to harm police officers, intimidate citizens and to attack their politically motivated targets…The information and evidence recovered in this investigation clearly demonstrates that these defendants were equipped and prepared to carry out violent acts to disrupt the NATO summit…

Especially since the state of Illinois already made such inflammatory statements, the lawyers argue the terrorism charges are “not constitutionally permissible and their inclusion in this indictment are highly prejudicial and irreparably prejudices the defendants’ right to a fair trial on the other charges in the indictment.”

Previously, I reported infiltrators who went by the names “Mo” and “Gloves” were believed to have helped law enforcement target and arrest these men. Michael Deutsch of the People’s Law Office said he believed the infiltrators met up with Betterly, Chase, and Church at a May Day demonstration in Chicago. The infiltrators then went about trying to convince the three men to engage in a terror plot against the NATO summit. When they failed, the infiltrators planted materials for the authorities to find when they raided the apartment making this case “worse than entrapment.”

Since the state terrorism law was passed after the September 11th attacks, no case has been brought under the statute. The state prosecutors have likely been told they have a responsibility to not blow the case and risk an outcome that could make it difficult to use the law to prosecute persons. However, there has been no evidence presented yet that the ever constructed any of the explosives or incendiary devices and planned to engage in any violent acts. The weekend of the NATO summit the state of Illinois could have called a press conference and showed the press the terrorist materials they had seized to further convince the public dangerous anarchists had descended upon Chicago to create chaos. They did not.

Defense lawyers and those charged and arrested in the raid were subjected to possible legal misconduct and civil liberties violations, such as the disappearing of arrestees after the raid, the refusal to show arrestees’ attorneys a search warrant; the detention of arrestees without charge for one to two days before six were released without charges; interrogations intended to intimidate and force individuals to falsely confess or snitch on others in the movement, etc. The Chicago Police Department used infiltrators to provide information and possibly even push the NATO 3 to the brink of committing acts of terrorism. (Note: Here “Gloves” can be seen dressed in a police department uniform. She also can be seen in photos dressed up as an anarchist.)

More importantly, the problem of unconstitutional vagueness is not dissimilar to the unconstitutional vagueness of the indefinite detention provision of the 2012 National Defense Authorization Act (NDAA). When a federal judge issued a permanent injunction against the law, which allows the government to use the military to indefinitely detain individuals who have “substantially supported” or “directly supported” al Qaeda or “associated forces,” she pointed out that the terms were vague and lacked specificity. She further stated the terms did not appear in any prior case law and “the respective meanings of the terms at issue” are unknown but “the penalty of running afoul of it is severe.”

Though the permanent injunction was stayed and the government is now appealing the decision, the critical point was still made: terrorism laws are drawn up in this country in such a way to give prosecutors and the government incredible latitude to go after people even if they only  have a minor suspicion that those people could engage in terrorism. Coupled with the fact that law enforcement is using infiltrators or informants to push mentally unstable people, impoverished individuals or activists militant in their political beliefs to commit terrorist acts, it is easy for government to concoct terror cases that can be prosecuted.

With no real definition of terrorism and with the vagueness intentionally or unintentionally including the regular conduct of activists, labor organizers or even journalists accused of aiding these people, it is reasonable for the lawyers to make this case about trying to overturn the state’s anti-terrorism law.