"In a unanimous decision, the six judges on the top court ruled that adopting the prosecution's broad definition would allow other prosecutors to "invoke the specter of terrorism' every time a Blood assaults a Crip or an organized crime family orchestrates the murder of a rival syndicate's soldier."
But the judges ruled that the concept of terrorism "has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act."
So what definition of "terrorism'is this court using? Well, it never does say. It simply says, "we have looked at the crime and it is not terrorism."
Which tracks the never-to-be-forgotten words of Supreme Court Justice Potter Stewart in 1978. When asked in an obscenity case, "What is porn?' Justice Potter simply said, "I know it when I see it."
Gabor Rona, the International Legal Director of advocacy group
Human Rights First, provides another nail in the coffin of due process.
He says, "One pernicious aspect of prosecutions these days is that terrorism charges are increasingly being used for things that are not terrorism, in order to inflame juries. What makes this easy is the flexible definition of terrorism used in the criminal justice system.
"It takes a garden variety crime, say assault or murder, and turns it into something even more frightening by reference to the motive of the accused, rather than the act, itself. Even more attenuated from a balanced view of reality and justice is the leverage prosecutors have to charge conspiracy to commit terrorism, which, like all conspiracy charges, does not require any underlying crime to have been committed at all.
"This phenomenon is not limited to Muslim and Arab targets. Indeed, the ever-expansive use of terrorism in the prosecutor's toolbox, be it in the form of terrorism itself, conspiracy to commit terrorism, or "material support" to terrorism, puts virtually any political activism in the crosshairs of law enforcement.
"Fear of Muslims and Arabs may have given rise to this phenomenon, but authorities have successfully capitalized on it to take down tree huggers and to justify intrusive investigations of Occupy Movement activists.
"But another, equally disturbing manifestation of the creeping security state does involve mostly Muslims and Arabs. It's the disintegration of constitutional protections against entrapment.
"In theory, the law has not changed and the successful entrapment defense has always been rare. The government can supply virtually everything -- encouragement, incentives, materials, training, facilities -- to facilitate the crime, and still get a conviction. But it does have to prove that the accused was "pre-disposed' to commit the crime. Even more than "motive', predisposition is an amorphous concept, easily manipulated to prey on the fears and prejudices of juries who most certainly are not the "peers' of the accused.
His conclusion is that "prejudice does play an important role in the disintegration of due process, but once prosecutors hit upon a shiny new tool, they will naturally seek to expand its use wherever and whenever they can. To dial back this trend is virtually impossible at any time, let alone one where few judges or legislators can expect to survive the accusation: "soft on terrorism'."
Kathy Manley is an Albany (NY) Criminal defense attorney and the VP of the Capital Region Chapter of the NYCLU.
"By saying, as the NY court did, that "we know terrorism when we see it', and then giving as examples cases involving Muslims, the decision shows this very clearly," she says.
"I think the court reached the right result here, but unintentionally made the double standard in the Muslim cases extremely clear," she added.