Kevin Gosztola will be covering the trial of the Nato 3 at the George N. Leighton Criminal Courthouse in Chicago

Three activists known as the “NATO 3″ are scheduled to go on trial tomorrow in Chicago. They were arrested days before a North Atlantic Treaty Organization (NATO) summit in the city in May 2012 and later indicted on terrorism and other felony conspiracy charges.

The trial will be significant as it involves a state terrorism law. The defense has also suggested it is significant that the state of Illinois, not the federal government, has prosecuted the case. The judge has even apparently asked why the federal government is not prosecuting the case, suggesting something must be wrong with it.

Undercover police were involved. They conducted a surveillance operation that involved infiltrating Occupy Chicago, an action at a local health clinic, etc, for at least a month prior to the summit. The conduct of the undercover police involved strongly suggests they played some role in pushing the activists to allegedly prepare Molotov cocktails.

Brian Church, 22, of Fort Lauderdale, Florida, Jared Chase, 29, of Keene, New Hampshire, and Brent Betterly, 25, 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 were released. By late Friday, May 18, the NATO 3 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 brought the total number of charges the activists faced to eleven. But, in the past week, four charges—two counts of “unlawful use of a weapon” and “counts of conspiracy to commit arson and attempted arson”—were dismissed by prosecutors without explanation.

The three activists have been incarcerated since they were arrested, since bail was set at $1.5 million for each of them.

The constitutionality of the terrorism charges was challenged by their defense lawyers. They alleged the state had sought 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.”

A motion arguing the charges were unconstitutional further claimed, “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,’” which is part of what must be proven to convict them of “terrorism” under the state’s law.

Defense attorney Michael Deutsch asked during oral argument, “How can you charge someone with terrorism without an act of force, violence or a violation of federal or state law?” He suggested the statute was being applied in an overly broad manner and could be used to prosecute vandalism or property destruction, which an Illinois state representative had been concerned about when the state terrorism law was passed.

But Cook County Judge Thaddeus Wilson did not find the law was vague or overreaching as the defense argued. It had been passed after the September 11th attacks “due to the grave nature and global reach of terrorism.” He would not dismiss the charges against the “NATO 3.” He also indicated  the allegations made by the state went “well beyond garden-variety misdemeanor and felony charges commonly associated with protests.”

According to “informal court notes” posted by the “Free the NATO 3″ blog, there was a police surveillance operation that likely involved the FBI, Homeland Security, Secret Service and Chicago police, including the undercover cops, who are known as “Mo” and “Gloves.” Alleged text messages were sent between defendants and undercover cops, however, they were not preserved and little to nothing was done to get copies of these messages from service providers.

The defense told the court that police personally deleted text messages that were related to the case and had even gone as far as to destroy phones that had been used. In what could be considered quite an understatement, the judge said this “might be problematic” and prosecutors were instructed to investigate and retrieve any text messages, phone numbers or time logs of text exchanges that were still available.

At each pretrial hearing, the state has sought to make it appear that this is not a case that the federal government would have pursued if they thought they could win. However, the FBI and Secret Service worked “hand-in-glove” with Chicago police for months, according to Chicago police chief Garry McCarthy.

…Because of the charges they brought, the state now has to prove terrorism, whereas the defense has argued over and over that they cannot imagine how they are going to prove these charges. How could four bottles with gas and a bandanna be used as a weapon of mass destruction, [Durkin, one of the defense lawyers, asked]. He also said that the state has been arguing that the defendants came into town with a bomb in their car and the police found it, so the defense could not wait to go to trial on these charges. He also pointed to another part of the press conference video [plays video where McCarthy says they had been working “hand-in-glove” with the FBI and Secret Service for months, communicating and passing along information]. Durkin said that it was mind boggling that they could say the Secret Service was not involved after this press conference. This state is about justifying the money spent on NATO, Durkin said. This was not a selective prosecution argument but it goes to the credibility of the witnesses, mostly the cops. He also pointed to some emails in the discovery, notably #7470, which is an email from the Secret Service Chicago Field Office that says that there was no danger of any plot happening on May 19, 2012, three days after the defendants were arrested. This email says the defendants discussed damage to the headquarters but did not surveil the headquarters…

The Secret Service, according to defense attorneys, looked into a threat made against President Barack Obama’s campaign headquarters. It turned out they could not substantiate the threat.

Over the course of pretrial hearings, a third undercover cop was revealed: Patrick Lee Palmer posed as a street medic.

Judge Wilson doubted a claim by the state that the police infiltrators had met defendants at a party after a May Day march in 2012 without the assistance of prior surveillance. He said he would give the defense wide latitude to figure out whether it really was true.

There was a post-arrest statement from Church that the state had planned to use against him. They now will not be using it, as the defense has argued it was unconstitutionally obtained after he had been chained up for 17 hours while being denied access to legal counsel.

Moreover, the defense is wary of how a jury will respond to the state if it emphasizes the three are “anarchists” or believe in “anarchism.” They are afraid that the state will use the phrase “black bloc,” which can easily be associated with protests that involve property destruction, to convince a jury that these young men would have engaged in acts of domestic terrorism if they had not been stopped.

One of the state prosecutors even said they believe the three are “part of the black bloc intrigue,” and their anarchism would help show their motives, which raises the question: How much of this case is predicated on the political beliefs prosecutors believe these three men happen to have?

Unfortunately for the defense, the judge denied a motion to prohibit the state from using these charged words, which could be used to instill fear in jurors.

The state prosecutors sought to prohibit the defense from arguing at trial that the “NATO 3″ were victims of vindictive prosecution. They also sought to preclude the defense from arguing an entrapment defense. The judge granted the motion to prohibit arguments that the three were being vindictively or even selectively prosecuted while allowing an entrapment defense.

Last week, it became clear that the court would be limiting public access to the trial. “Spectators” or members of the public were informed that they would have to go to the courthouse on Friday if they expected to attend the first day of the trial on Tuesday. They would have to give a state-issued ID to the Cook County Sheriff’s Office so they could be put through a background check. If they were cleared, they would be able to attend the trial. This would have to be done each day of the proceedings.

As David Shapiro, an assistant law professor at Northwestern University, and Alan Mills, the legal director of the Uptown People’s Law Center, wrote in the Chicago Sun-Times:

There is reason to fear that the restrictions in the NATO 3 case will cause interested members of the public not to show up. Those who do attend will be chilled in their discussion of what they observed in the courtroom. The net effect will be to deprive the public of full knowledge of how the prosecution unfolds against the three men who were arrested on terrorism charges before world leaders gathered in Chicago to attend the 2012 NATO summit. Their attorneys contend the three men were charged based on “idle chatter, laced with bravado and abetted, encouraged and egged on by the undercover police agents.”

“What transpires in the courtroom,” the Supreme Court has said, “is public property.” Secret trials create an opening for the unsupervised abuse of power and erode public faith in the judicial process. It is for this reason that the Founders of our Republic abhorred secret proceedings — Star Chambers, as they were called in 16th Century England — and held public trials sacred. When Aaron Burr stood trial for treason, Chief Justice John Marshall moved the trial to the Virginia House of Delegates because the courtroom was too small for all who wished to attend…

Jerry Boyle, a Chicago lawyer, considers forcing “spectators” to submit to background checks an aspect of the “security theater” that will be on display during the trial. (Already, defense lawyers have complained about the number of sheriffs in the courtroom with bulletproof vests.)

There’s also a ‘decorum’ order that activists consider to be “so sweeping that one could conceivably be ejected from the courtroom and cited for criminal contempt for raising an eyebrow or shaking one’s head at testimony — or even smiling at a defendant.”

A press release from organizers of the May 2012 NATO summit protest adds, “The order also bans political buttons, t-shirts, armbands and perhaps even particular colors should they be deemed by court officials to represent a partisan political statement. Members of the public who exit the courtroom at any time, including to use the bathroom, will not be readmitted unless the court recesses.”

The judge actually considered banning “spectators” from having pen and paper to take notes during the trial.

What are the state’s motives in prosecuting this case? Will they have more to present at trial than sensational hyped allegations based on what police infiltrators allegedly got the NATO 3 to say to them prior to arrest?

Many will recall that I spent more than one and a half years covering the court martial of Chelsea Manning. It is my sense going into this trial that the Cook County Sheriff’s Office will be putting on a trial that undermines the public’s right to access much more than the US military did during Manning’s court martial. I expect officers in the courtroom to be much less understanding than military officers who were in charge of maintaining decorum.

I already can inform those who follow my work that it is much more difficult to obtain press credentials. In addition to the normal press pass, I have to prove to the Sheriff’s Office that Firedoglake is a business or corporation by showing some kind of license. I have to show a letter from my editor too. All the public affairs office of the military required to give me credentials were basic details like the name of the media organization I represent, my name, my phone number and my editor’s email.

Nonetheless, I will be there covering the NATO 3 trial and reports on proceedings will be posted here throughout the week, regardless of whether the Sheriff’s Office agrees to give me press credentials or not.

Photo by yupperann used under Creative Commons license