Brief Notes from the NATO 3 Constitutionality Challenge on 3.19.13

On Tuesday, March 19, the judge in the NATO 3 case heard the oral arguments on the defense motion to dismiss the terrorism charges as unconstitutional. Below are some brief notes on the arguments presented in this hearing. The judge is expected to rule on the constitutionality challenge on Wednesday, March 27 at 2pm in Room 303 of the Cook County Criminal Courthouse at 26th and California. You can find out more about these cases at and donate to the support fund at

After some preliminary matters, Michael Deutsche of the defense team set the framework for the two parts of the motion, the facial challenge and the as-applied challenge. The facial challenge asserts the statutes are unconstitutional on their face. The as-applied challenge asserts the statutes are unconstitutional as applied to the defendants in this particular case.

Deutsche asserted that the constitutionality challenge is proper because the statutes effect First Amendment protected activity. He also briefly mentioned another ground by which to challenge the statutes, as established by the Illinois Supreme court, which is that the statutes have no core or substance. Further, he asserted that the statutes allow for the criminalization of innocent people, that they do not require a violation of state or federal law, and the definition of terrorism or terrorist acts do not include force or violence. He also argued that the alleged actions are not rationally related to the crime of terrorism, that “coercion” and “intimidation” are vague terms and that “significant portion of the civilian population” is simultaneously vague. Additionally, he argued there is no culpable mental state [intent] clearly specified in the law. On its face, this statute is vague and criminalizes innocent conduct and conduct that is not related to terrorism.

For the as-applied challenge, Deutsche noted that the prosecution had filed a more specific Bill of Particulars detailing the alleged conduct that led to the charges, as their first one had been extremely vague. The new Bill of Particulars the state had filed was still extremely vague and does not allow the defense to adequately prepare their defense. The judge noted that this issue would be addressed. Deutsche then remarked that he is addressing the as-applied aspect to the motion when he asserts again that no actions were taken in this case, and no one was intimidated or coerced in this case, but that this is an alleged “attempt case” in which the evidence the state is expected to produce will consist of statements made by the defendants. Given that this will be the evidence, it is going to be particularly hard in this case to determine if a “significant portion of the population” was coerced or intimidated. Additionally, the statutes do not put defendants on notice that what they are doing is terrorism. He also argued that the statutes allowed the prosecutor to arbitrarily prosecute for politically motivated reasons, make examples of those they target, disappear them for 3 days, and then issue a press release and hold a sensationalized press conference on the eve of the NATO Summit protests claiming “we’ve arrested the terrorists” and setting bond at a fantastical $5 million for the 3 defendants.

Not surprisingly, the state attorney started by saying that the defense’s assertion that these charges are politically motivated is completely inappropriate and improper for a constitutional hearing. She also argued that the case does not implicate the First Amendment because the defendants’ conduct is in no way protected by the First Amendment. The state also said that the statute clearly defines a mental state and provides 9 categories of things that are “terrorist acts,” including doing something that risks great bodily harm or death. Regarding the as-applied challenge, she asserted that the defendants’ alleged conduct falls under the parameters of terrorism. She alleged that they made 4 Molotov cocktails, purchased gasoline to make them, and commented to an “undercover” that “the city of Chicago will never be the same.” She further alleged that the defendants commented about seeing a police officer on fire in downtown Chicago. She stated that this clearly shows intent to intimidate or coerce. Additionally, the state said that the defendants should have known that they could not do what they are alleged to have done, and that just because a statute allows for prosecutorial discretion does not mean that it is vague.

After the defense’s rebuttal, the oral arguments had concluded and the judge moved on to handle other business. This business included discussing the state’s amended Bill of Particulars, which is still impermissibly vague. Defense attorney Durkin also noted that the state had changed the alleged conspiracy dates from October 1, 2011–May 2012 to April 2012–May 2012 and that this change was notable since Occupy encampments were spreading around the country in early October 2012 and the allegation initially included this time period. The judge gave the state until next week to re-write the Bill of Particulars so it is sufficiently detailed.

The judge also affirmed that he would allow the sheriff’s office to determine how many deputies in bullet-proof vests to have in the courtroom surrounding the defendants during pre-trial proceedings but would limit this at trial when this presence could influence the jury. The other matter discussed in the hearing (at the beginning) was that the state had filed a sur-reply to the constitutionality challenge that the judge had not approved and therefore did not read. He accepted the sur-reply but gave the defense until Friday, March 22 to file its own sur-reply so the defendants would have the last word on their constitutionality challenge.

Our complete notes can be found on our Court Notes page: Keep up to date on the NATO 5 as these cases continue to develop! Find us on Facebook at Free the NATO5!, follow us on Twitter at @FreeNATO5, and sign up for our announcement listserv by sending a blank email to!