Crossposted from Firedoglake
I’ve been asked by several people to reflect on the verdict in the NATO 3 trial as best as my circumstances permit. Because my circumstances are not unique to people who have dissented or journalists (citizen-journals or professional journalists) who have covered dissent in the US, I will attempt to highlight what I see as the broader implications within my limited knowledge of Illinois and Chicago laws and politics.
Chilling of Journalism and Dissent
When I was released on May 18, 2012, from a detention center on the West Side of Chicago, I was released “pending further investigation”. That little bit of law enforcement manipulation means that the Chicago Police Department, a willing prosecutor, and an agreeable grand jury can decide arbitrarily at any time to charge me on whatever charges they can create a narrative for–unless I behave myself in some way known only to them. For me the nightmare and the flashbacks are not yet over; nor can I properly say that my constitutional freedoms have been in practice restored. Additionally, after 17 months, my property seized as “evidence” has not be properly returned to me. And while this is not unexpected, it shows another way that law enforcement can exert power and exact punishment in extra-judicial ways over people exercising their legitimate constitional rights. It is just another form of procedural punishment before or without trial in the same way that the procedures regarding the provision of medication to detainees is. In my case that was de facto imposing a fine of $400 or so through medical bills by the manner in which the Chicago Police Department decided to deliver my heart medications to me. The same is true for the exorbitant jail phone service racket, a sweetheart deal for the phone provider and extra-judicical fine on anyone arrrested. These don’t apply only to dissenters and journalist detained, but arbitrary detention of dissenters and journalists to expose them to this system intends to intimidate them into shutting up. And it is law enforcement’s way of punishing those who are found not guilty; law enforcement never makes a mistake; there can be no innocence.
The health care personnel at the hospital to which I was taken must now have a strange idea of who might be a terrorist based on the fact that the cop who took me there was waving around my charges sheet. That can only heighten the fear in some middle class communities in the Chicago area. “I saw one of them…”
The use of undercover cops in the way that the CPD infiltrated organizations involved in protesting, strikingly including the street medics, makes one understand that any organization doing anything can be construed as a threat, infiltrated with someone who knows how to get uncontexted conversations to be come critical evidence, create a narrative to make the worst case of the evidence, and take it to court as a high-profile case in which the media operate totally out of the prosecution framing. Needless to say, this is McCartyism pure and simple. Or worse, the processes that we rightly condemn in police states.
Does it make me more circumspect in what I say? Of course it does. I’m more aware that there is some invisible line that I am walking with regard to reporting what I saw and what I see and advocating what I think as a citizen needs to be done.
Prosecutorial Shenanigans, Judicial Elections, and Political Culture
How bad were the prosecutorial shenanigans in the NATO 3 trial? Some news reporters were hoping for jury nullification as a punishment for prosecutorial overreach. And how lax was the judge at these shenanigans. From a charitable perspective, he allowed both prosecution enough latitude hoping it would come out as some semblance of justice in the verdict. The points at which, in my opinion, he should have acted and did not was in allowing the admission of a recipe for making pipe bombs without provenance or relevance and his failure to rule in favor of the directed verdict motion by the defense before it went to the jury. IMO that distracted the jury from ample consideration of the evidence in incendiary device charges. I understand that directed verdicts are difficult to get, but the evidence presented seemed so disconnected from the accused and so much that of actions of the undercover officers.
Particularly interesting in the evidence was Officer Mehmet Uygen’s testimony that he brought the beer bottles partially filled with gas and stoppered with scraps of his own bandana into the apartment in a waste can and covered them so they would not smell. I keep imagining one of us other than the three smelling gas, saying “WTF”, and destroying the carefully planted evidence. That assumes that Officer Uygen is telling the truth about when he placed the evidence in the apartment. The shenanigans in the introduction of the pipe bomb instructions call into question the integrity of the testimony about other evidence. There is no independent evidence that gas was ever in the apartment as far as I know. And a news report of an interview with the residents of the front apartment indicates that the police were very interested in wanting them to assert that they smelled gas shows that the CPD was intent on constructing a narrative even before the evidence technicians arrived.
Frankly, there is nothing in the evidence than a three guys humored a couple of undercover cops in the undercover cops’ own fetishization of molotov cocktails and fantasy (or was the cops’ own deepest anxieties) of cops burning from a tossed molotov cocktail. And that an all too brief DHS-sponsored training course in counter-terrorism and crowd control inspired these anxieties and the narrative that went with it. That is to say that the evidence is so scant that many narratives can be forced on it.
And so we come to the elected states attorney and the elected state judge in the case. Cynically or gullibly both of them bought into the terrorism narrative in a way that shaped the outcome of the trial and to the states attorney’s satisfaction produced a guilty verdict that the judge has the possibility of exacting a sentence of 30 years for each of the NATO 3. We will see on February 28 how far down that road the judge is willing to go.
Elected. And in the City of Chicago, that means elected with the aid of the longtime Chicago city machine that was put together by Richard J. Daley and maintained even with more independent mayors by organizations at the ward level and through capture of a sufficient number of aldermen, who in turn have a core of get-out-the-vote workers and strategies to deliver enough votes in their local geography. On items that have high interest with those who pull the strings of the machine–and the G8/NATO Summits were apparently of high interest to creating a global image for Chicago–the rest of the machine moves with the machine. Even Rahm moves with the machine; he’s no Richard J. Daley. In this case, the states attorney and the judge are not free and independent agents of justice.
The needed political change in our time is the transformation of a corporatized political culture to a more democratic political culture. The spontaneous movements that have appeared nationally and in Chicago are democratic responses to corporate abuse. In Chicago, that movement has to transform the wards in order to bring about more emphasis on justice. And that likely will result in changing the occupants of elected state offices in the Chicago area. These folks have a vested interest in seeing movemental democratic groups of people give up or move to the appearance of violence in a way that they can come down on them like a ton of bricks. The intolerance of the City toward the exercise of First Amendment rights–the judge kept warning the defense attorneys that this was not about the First Amendment–makes clear this strategy to protect their jobs. Typically, those attitude are considered by the media and legal system as givens and not bias.
One of the Occupy Chicago activists responded to the news of the verdict and to a report of States Attorney Anita Alvarez’s outburst at an AP reporter. One word. Numb.
I understand that and struggle with that. The delay has be excruciating. The failure to attempt to get to the truth maddening. The rampant careerism of the States Attorney visible to even the most establishment media. The manipulation of every detail of process stunning. The comparison to the Boston Marthon bombing bizarre. But most of all the persistent and pernicious failure of the public to understand that the movement that has been in their streets has been scrupulously non-violent even as the police have been savagely violent. Even as police have allowed the murder rate to climb and have inflamed anger with their over-aggressive tactics in neighborhoods. It is tempting to just shut down.
On the Sunday of the No NATO march, I was cooling off in a temporary first aid station in a church fellowship hall. Street medics brought in a young man who had been busted in the skull by the Chicago Police. (Fulfilling the promise recorded on the NATO 3’s video of March 8; interesting that that is when the undercover cops first brought around beer, come to think of it.) There is probably YouTube of the police attack on this young man, and it is likely terrifying to people who might have come to Chicago except for the memory of 1968. I have not seen that YouTube.
The YouTube I have seen is of the very front line facing the Chicago Police in riot gear at the entrance to McCormick Place. One of the people who walked from Occupy Wall Street at Zuccotti to DC, from DC to Atlanta, and then from Atlanta to Chicago is standing faced off with two to three Chicago cops, his tee shirt drenched through with sweat on that hot day. (That heat must have made the carapaced cops very irritable.) The cops had given an order to disperse, which the front line of protesters were ignoring and slightly pressing forward. The cops facing this guy were thrusting their riot baton ends at his chest. Hard. Over and over again. He stands there taking it for some time before the flanks of the protester line collapse and all retreat and then stand their ground again. There was your violence at NATO. It was all one way. It was all after the polite media had taken their vans and cars and gone away. Until shortly before the NATO protests, making that YouTube was illegal in Illinois.
What the authorities want to conflate is the notion of violence and the notion of direct action that breaks the law. And what they seek by overcharging is the ability to detain indefinitely, plea bargain long sentences, discredit, and take dissenters off the street for decades. The fact that in the NATO 3 trial that they are still close to succeeding in that despite public ridicule and jury nullification tempts one to become numb.
Illinois Mob Action Statute and Freedom of Assembly
The Illinois law under which the NATO 3 were convicted is apparently this one.
I am not a lawyer, but my lay understanding of the plain words of this law is that it provides a very flexible tool for law enforcement to do crowd control (transformed into “mobs” through violation of a lawful order to disperse). It is the circumstance of that order to disperse that can allow law enforcement to cross the line and violate the First Amendment rights to speech and assembly. They can also violate Fourth Amendment rights. I know that judicial precendent makes it very complicated thing for ordinary people to assert their constitutional rights.
(720 ILCS 5/25-1) (from Ch. 38, par. 25-1)
Sec. 25-1. Mob action.
(a) A person commits mob action when he or she engages in any of the following:
(1) the knowing or reckless use of force or violence disturbing the public peace by 2 or more persons acting together and without authority of law;
(2) the knowing assembly of 2 or more persons with the intent to commit or facilitate the commission of a felony or misdemeanor; or
(3) the knowing assembly of 2 or more persons, without authority of law, for the purpose of doing violence to the person or property of anyone supposed to have been guilty of a violation of the law, or for the purpose of exercising correctional powers or regulative powers over any person by violence.
(1) Mob action in violation of paragraph (1) of subsection (a) is a Class 4 felony.
(2) Mob action in violation of paragraphs (2) and (3) of subsection (a) is a Class C misdemeanor.
(3) A participant in a mob action that by violence inflicts injury to the person or property of another commits a Class 4 felony.
(4) A participant in a mob action who does notwithdraw when commanded to do so by a peace officer commits a Class A misdemeanor.
(5) In addition to any other sentence that may be imposed, a court shall order any person convicted of mob action to perform community service for not less than 30 and not more than 120 hours, if community service is available in the jurisdiction and is funded and approved by the county board of the county where the offense was committed. In addition, whenever any person is placed on supervision for an alleged offense under this Section, the supervision shall be conditioned upon the performance of the community service. This paragraph does not apply when the court imposes a sentence of incarceration.
(Source: P.A. 96-710, eff. 1-1-10; 97-1108, eff. 1-1-13.)
No doubt there are similar laws in almost all states. And likely local ordinances that say similar things.
This once again raises the issue of access and use of public space, an issue that gained unexpected saliency during the Occupy Wall Street encampments. It also raises issues related to movements repetitively violating this law with peaceful, nonviolent failure to disperse on command. An order to disperse an otherwise peaceable assembly.
There has been no good reporting on the clause in this law the NATO 3 were deemed by the jury to have violated nor an understanding of the jury’s reasoning in coming to this verdict except that it represented a Solomonic avoiding of redefining terrorism or totally acquitting them for some sort of joint action.
For complete coverage of the NATO 3 trial, see Kevin Gosztola’s diaries in the Dissenter on Firedoglake.
Mark Brown of the Chicago Sun-Times had coverage as well. Here is his column after the verdict.