In an Unusual Twist, the Prosecution of a Gaza Protester Puts Israel on Trial
An activist argued that genocide in Gaza necessitated disrupting business as usual. The City of Chicago argued in defense of Israel—and against civil disobedience.
Nitaawe Banks does not dispute that they sat down on the pavement the morning of April 15, 2024, to block the main highway to O’Hare International Airport, the words “Free Palestine” written on the PVC pipes they used to link arms with other protesters. But Banks argues that this action was born from a deeply held sense of duty to stop a harm far greater than clogged traffic: US support for Israel’s genocide in Gaza.
“You have to have hope that you can stop the mass extermination of people,” Banks, 21, said on November 4 from a pale, wooden witness stand in a small Chicago courtroom. Banks was wearing a red-and-gray keffiyeh draped over a floral scarf designed by an Anishinaabe artist, a reference to their own Indigenous ancestry. They spoke calmly as they addressed the jury of 12, plus one alternate. “If there is any minuscule possibility of an action that I take making it so that harm is not incurred on another human being, it is incumbent upon me to take that action.”
Banks believes their actions were “warranted and necessary,” they said, “towards the purpose of ending the genocide of Palestinians.”
This concept of necessity is a legal defense. The idea is that sometimes it is necessary to break the law to prevent a more serious injury. The necessity defense has been repeatedly invoked in cases involving people who engage in acts of civil disobedience to protest the existential threat of climate change; more than 100 climate protesters in over 30 criminal cases have attempted to use it since 2009, with some successes. But a smattering of cases are starting to test the tool in the context of US support for Israel’s military actions in Gaza. And the point, according to Banks, is to air a critique of US-Israel atrocities wherever one can, from the streets to the witness stand, part of a movement tradition of political trials in the United States.
For Banks, the necessity defense was not just about winning the case, which was over a municipal traffic violation, with a maximum penalty of 10 days in jail and/or a fine. It was about the principle of refusing to plead guilty when, according to Banks, you know you took an important and correct action. “I’m not partial to the outcome,” they told me while sitting on a bench outside the courtroom. Banks’s grandfather, Dennis Banks, is a founder of the American Indian Movement, and they come from a family where it is common to put your body on the line to take a principled position.
The unusual result was that US and Israeli atrocities were put on trial in a small, drab court room, in front of the jury and a small gathering of supporters, some of whom were among the 39 people who took plea deals for participating in the same protest. Under Illinois law, defendants can plead the necessity defense if the situation was not of their making and they reasonably believed the action was necessary to prevent a far worse harm. The defense team made the case that a US-supported genocide is being perpetrated, and in engaging in civil disobedience, Banks believed their actions could contribute to saving Palestinian lives.
On the other side was the City of Chicago, which found itself reinforcing the argument that Israel was acting in legitimate self defense and that the civil disobedience was unreasonable and ineffective.
In making this case, the City’s own prosecutors may have alienated Mayor Brandon Johnson. When I asked Johnson’s office about the prosecution’s arguments, a spokesperson said, “Mayor Johnson does not have direct oversight over individual cases and was not involved with the preparation of arguments made on behalf of the City. The referenced arguments are contradictory to Mayor Johnson’s positions on both the issue of the genocide in Gaza and the critical role that civil disobedience has played in shaping American democracy.”
“The Mayor’s Office will be conducting a full review to better understand how these arguments were developed and to ensure that cases that proceed to prosecution are in line with the Mayor’s vision for public safety and accountability,” the spokesperson continued.
That the charges were brought forward at all was unusual. They were initially dropped by Kim Foxx, the state’s attorney for Cook County, but then the City filed its own charges. “In the 20 years that I’ve been paying attention to protest cases in the city of Chicago, I’m not aware of any other set of cases where the state’s attorney completely drops the charges and dismisses them, and then the City comes in and brings their own charge,” Banks’s defense attorney Brad Thomson told me.
By refusing to plead guilty, Banks forced an ideological debate in a courtroom normally used to arbitrate municipal misdemeanors.
“What does it take to stop a genocide?” Thomson posed in his opening remarks. “Asking politely? Voting? Signing petitions? No. It takes serious action to stop such a devastating, horrific, and deadly tragedy.”
By the time Banks sat down on I-190, Israel had killed more than 33,000 Palestinians in Gaza, just since October 7, 2023. (That number is now more than 67,000, with more than a third of the dead children, though the real numbers are likely far higher.) Israel had bombed hospitals, schools, residential buildings, and refugee camps in full view of the world. Images of bereaved parents and maimed children were flooding social media daily. The International Court of Justice had just determined that January that it was “plausible” that Israel was committing genocide against Palestinians in Gaza. Major human rights and international groups like Amnesty International and Human Rights Watch, the United Nations, and 86 percent of the members of the International Association of Genocide Scholars, would go on to call it a genocide, often citing Israeli leaders’ own words. “We are fighting human animals, and we act accordingly,” Yoav Gallant, Israel’s minister of defense, said on October 9, 2023.
Banks was one of thousands of protesters who took simultaneous action across the United States on April 15, 2024, timed for tax day, in order to highlight the US financing of Israel’s onslaught. (Since October 2023, Washington has spent more than $31 billion on aid to Israel and military actions in the region, according to researchers from Brown University’s Costs of War project.) Protesters blocked bridges, highways, and airports in other cities, too. Israel’s onslaught in Gaza has been met with a torrent of protests in the United States; people of conscience have staged sit-ins at lawmakers’ offices, protested weapons companies, and occupied Grand Central Station and the Statue of Liberty.
“Based on my observations for many decades, given the very large amount of military aid that the United States gives to Israel, it would really take a very massive or very effective protest movement to really start to change those policies,” said expert witness Ali Abunimah, a journalist who has covered Palestine for 25 years, and is the director and a cofounder of the media publication Electronic Intifada.
To make the argument that Banks’s acts didn’t rise to the level of necessity, the prosecutors tried to undermine the argument that Israel and the US were committing clear wrongdoing in Gaza. This is in contrast to Johnson, who has called Israel’s campaign in Gaza “genocidal,” and in January, cast the tie-breaking vote that made Chicago what was then the largest US city to pass a resolution calling for a ceasefire in Gaza. Johnson has faced considerable blowback for these positions; a $10 million dark-money PAC opposing the mayor has cited his position on Israel as one reason why.
“You would agree that it’s fair to say that you can look at historical events from different perspectives, correct?” Marianna Kiselev, a prosecutor for the City of Chicago’s Department of Law, posed to Abunimah during cross-examination. “And of course, as you stated yourself, many in the international community believe that Israel was acting in self defense in response to October 7, 2023, correct?” (Abunimah clarified, “I wouldn’t say many, but I would say some influential countries.”) The purpose was to muddy the waters for the jury.
But the City went beyond casting doubt about Israel’s wrongdoing. The crux of its case was questioning the idea that civil disobedience was appropriate, instead framing the protesters as gleefully embracing illegality with no hope of having an impact on the political situation. The City claimed that the protesters’ obstruction of the highway hampered first responders’ ability to get to a bomb threat at O’Hare International Airport that morning. (Though plenty of first responders were on scene, and are regularly positioned at the airport itself.) Defendants threaten public safety, then try to justify their hazardous acts with political slogans, the City argued.
“Actions have consequences,” Kiselev said. “We are here today because the defendant chose to convey [their] message by violating the law. The defendant deliberately and willfully planned and created a blockade to the only entrance to the busiest airport in this country.”
“Now, the defendant comes here and says, ‘I did this. I had to do this because there’s terrible events happening thousands of miles away,’” Kiselev added. “However, the defendant and [their] own expert witnesses could not definitively tell you that that affected the trajectory of that crisis in any way.”
This is remarkably ahistoric criteria for direct action, and not a standard any major protest movement could satisfy. Upon hearing the prosecutor’s reasoning, one is compelled to ask what specific lunch counter sit-in directly gave us the civil rights act of 1965? What specific Freedom Rider action resulted in Loving v. Virginia and the ending of anti-miscegenation laws? What specific labor action created the 40-hour workweek or the minimum wage?
This line of argument led to moments when the City questioned the validity of civil disobedience itself, squaring off with historian and scholar Michael Staudenmaier, who has researched movements against racism and for Puerto Rican independence.
“I think we can both agree that while protesting is a vital part of democracy, it doesn’t give someone the right to endanger others or shut down critical infrastructure, does it?” asked City prosecutor Christine Hake.
“Can I say no and yes?” Staudenmaier replied.
“You can say yes or no,” Hake said.
“I think that endangering others is different from shutting down critical infrastructure,” Staudenmaier said.
Moments later, Hake asked, “But you think it’s OK to shut down critical infrastructure?”
“Again, as I testified earlier, I think that the disruption is part of the point,” Staudenmaier said. “If I can use the Birmingham example, critical infrastructure in terms of access to the city streets in downtown Birmingham was massively disrupted for days and days by those protests.” Staudenmaier was referencing the Birmingham campaign of 1963, a series of protests and acts of civil disobedience, including lunch counter sit-ins, to oppose racial segregation. Dr. Martin Luther King Jr. was among those arrested for peacefully violating an anti-protest injunction.
The exchange was notable, because Johnson has been public and vocal about the importance of protest and the right to do it, and was once himself arrested at a protest against school closures in Chicago. On October 28, at the No Kings rally in downtown Chicago, Johnson became one of the most prominent US politicians to call for a national general strike, a notoriously disruptive form of protest.
The defense, for its part, acknowledges that protesters created a disruption, but says the City exaggerated the impact. “What we really have is the harm that Nitaawe sought to prevent, the killing of the Palestinian people in Gaza, versus the harm that resulted from the traffic jam,” said defense attorney Amanda Yarusso in her closing remarks. (Both of Banks’s lawyers worked pro bono through the National Lawyers Guild national defense program.) “An hour of stopped traffic…and we saw people walking to the airport to catch their flights. That’s the evidence. And when you compare those two things, there’s no question: It’s a mountain of harm compared to an anthill of inconvenience.”
“Why are we here? Let’s get to the heart of it,” Yarusso added. “We’re here to tell the truth regarding the Palestinian people and what their lives were like in April of 2024. That’s what’s important to my client. That’s what they were protesting.”
I am not a neutral observer in this case; I was compelled to cover the trial, because I believe that civil disobedience is an important response to US support for Israel. But I was unprepared for the extent to which the City, at times, seemed to get personal, at one point encouraging the jury to question whether the defendant is a reasonable person.
The jury came back on November 5 with a guilty verdict, and Banks was sentenced to 30 days of supervision and a $100 fine. Banks said that maintaining decorum in the courtroom was challenging given the “disrespectful” tone of the prosecutors. But they are not discouraged by the outcome. “As someone who’s Indigenous, and specifically Indigenous to this area of land in Chicago, before US occupation, I wasn’t going to accept a plea deal in any form, because that felt like validating, in some way, the carceral system that exists as a part of the occupation of my land,” they told me following the verdict.
This orientation had made Banks the defendant in a previous necessity case for a different protest in solidarity with Palestinians. In that case, the City charged them, but a jury found them not guilty in June, on the basis of necessity. (Yarusso and Thomson represented Banks in that case as well.)
While the repercussions of the guilty verdict are not devastating for Banks, protesters in other cities face more severe potential consequences. Seven people face felonies for blocking the south-bound lane of the San Francisco Golden Gate Bridge to protest US support for Israel, also on April 15, 2024. The lawyers for the defendants are trying to get a judge to approve a necessity defense when the case likely goes to trial next year. “Every judge should allow [a necessity defense], and even if they don’t, there is no stopping the communities that are going to continue to demand an end to the genocide and a free Palestine, and they will continue to put their bodies on the line and be arrested, no matter what rulings judges make or what ridiculous charges prosecutors file,” said Jeff Wozniak, one of several lawyers representing defendants in the felony cases.
Defense attorney Thomson places Banks’s trial within “a long history of people who have been arrested for political action raising those politics in court.” While obviously not as high-profile, it’s in the same spirit, Thomson insists, as the Chicago 7 defendants who, in 1969, turned their trial into a public renunciation of the Vietnam War. They were tried for actions related to anti-war protests at the 1968 Democratic National Convention, and all seven were acquitted of conspiracy by the jury, but then the judge handed out a range of prison sentences for contempt of court.
“Part of the value is rewriting the narrative,” Thomson said. “Far too often, the legal system reinforces the state’s theory and version of events. When defendants challenge that version of events and put it in a political context, they can change the narrative. The arguments, testimony, and evidence become part of the historical record.”
Banks considers the trial a moral victory, despite the guilty verdict. “The entire point of taking both of these cases to trial was to be talking about these specific issues in the genocide in Palestine.
“The point is the continued amplification of this message.”