Further Reflections on the 'Toronto 18' Case: 'Terror Law' and the 'Crimen Exceptum'

First published in Global Outlook 13 (Annual 2009): 60-62.


The conclusions I arrived at in my article “The Toronto 18 Frame-Up: Fraud and Fear-Mongering in the 'War on Terror',” written in May 2008, have if anything been reinforced by subsequent events. I described a prosecution case that rests upon the entrapment activities of two moles instructed and lavishly paid by the the RCMP: one of them, by his own account a serious drug addict, received some $377,000, while the other, a spendthrift with what a close associate described as a habit of embellishing the truth, was paid $4.1 million. Their job, in return, was to create the appearance of a gang of terrorists with some paramilitary training, and the further appearance that this gang was trying to lay its hands on quantities of fertilizer to make ammonium nitrate-fuel oil (ANFO) bombs.

In July 2008 the first mole, Mubin Shaikh, decided he had sold himself short and requested a further $2.4 million from the RCMP—in return for promises of “no more media interviews, no more drug use, and no book or movie deals.”1 In the mean time, in June 2008, it emerged that the RCMP used a third mole as well—one Qari Kifayatullah, who claimed expertise with ANFO explosives. Thomas Walkom writes that the RCMP has shown no interest in interviewing or arresting this man—for the very good reason, one might suppose, that he was acting under RCMP supervision. It is not yet known how much his services may have cost, or what his relationship was to another man, “identified in court only as Talib,” who also contributed to the frame-up. As Walkom notes, Talib “explained, in a conversation recorded by police, how his team of cocaine addicts used stolen identities to defraud banks in small cities like Kitchener.” He seems, like Kifayatullah, to have enjoyed immunity from arrest: “There is no record [...] of the RCMP moving to shut down Talib's ongoing and apparently lucrative bank fraud schemes.”2

I also described in my article what I called the narrative framing of the case. The motif of ANFO bombs—a project that police agents furthered and almost certainly originated as well3—identified the accused as 'home-grown terrorists' in the manner of Timothy McVeigh; while the motif of beheading—set into motion by a police synopsis of accusations, and given added currency by the police mole Mubin Shaikh—linked the accused with the barbaric 'terrorist international' of arch-beheader Abu Musab al-Zarqawi. This narrative framing gave shape to a nightmare sense of mortal danger—posed by men and boys who are at once 'home-grown' and at the same time terrifyingly 'other', since their deepest loyalty is supposedly to a barbaric radicalism that seeks to transplant the violence of faraway countries into our own civic space.

A different kind of narrative framing is now at work in the timing of the prosecutions: these cases are moving into court in conjunction with the trial in Ottawa of Momin Khawaja, arrested four years ago on charged of having supplied bomb detonator know-how to a UK terrorist cell. Five people have been convicted in Britain as members of the cell Khawaja is accused of having assisted, and our government may be hoping for synergy between Khawaja's case and the Toronto 18 trials: a conviction in the former might be expected to make the Crown's arguments in the latter more persuasive.

However, another 'War on Terror' case involving a Canadian citizen has also simultaneously been moving toward trial. The alleged child-soldier Omar Khadr, who has been illegally detained in the US prison at Guantánamo since 2002, when he was fifteen, and repeatedly tortured, will be on trial for his life this autumn before an illegally constituted Military Commission. This case has become a major scandal both in Canada and internationally: our Supreme Court has ruled that CSIS agents and Foreign Affairs officials who participated in interrogating Khadr at Guantánamo in 2003 were acting in a manner “contrary to Canada's binding international obligations,”4 and the Harper government's refusal to intervene on Khadr's behalf and repatriate him is a much more serious violation of Canadian law and of Canadian treaty obligations under the UN Convention Against Torture (Article 12) and the Geneva Conventions (III, Article 130, and IV, Article 146).5

On August 8, 2008, Khadr's lawyers launched a lawsuit in the Federal Court of Canada against Prime Minister Stephen Harper, Foreign Affairs Minister David Emerson, CSIS Director Jim Judd and RCMP Commissioner William Elliott, asking a judge to order the government to live up to its legal and treaty obligations and repatriate Khadr. Harper's response was breathtaking in its moral obtuseness:

“This predictable,” said Kory Teneycke, the Prime Minister's director of communications. “It's an attempt by Mr. Khadr's lawyers to avoid a trial on the charges of murder in violation of the laws of the war, attempted murder in violation of the laws of the war, conspiracy providing material support for terrorism and spying.”6

Setting aside the ignorance of Teneycke's repeated reference to “the laws of the war” rather than “the laws of war” (it could possibly be a sub-editor at the National Post rather than the PM's flack who thinks that each war has its own laws, and doesn't know that there's just one set of international conventions that applies to all wars), this banal repetition of the Gitmo charge sheet is an affront to civilized values. Canada's Prime Minister is telling us, quite directly, that he regards a Military Commission kangaroo-court as legitimate, that he holds Canada's binding obligations under international law in contempt, and that, above and beyond the laws governing appropriate treatment of children accused of crimes, he fails to see how sheerly idiotic it is to accuse a fifteen-year-old of “providing material support for terrorism and spying.”

The contextual framing of the trials of those among the Toronto 18 whose charges have not been stayed may therefore, if anything, help the Canadian public to recognize the fragility of the government's evidence—and the fact that sleep-deprivation torture is no less disgraceful in Toronto than in Guantánamo. A wider contextualizing still may help us to understand more fully what is at stake, in terms of the principles of democratic jurisprudence, in these and similar 'terror trials'. 

* * * *

We can learn something about the current threat to democratic jurisprudence by reflecting on a uniquely western European and early American experience—the witch-craze that between the end of the fifteenth century and the late seventeenth century intermittently convulsed whole regions of Germany and France, with lesser outbreaks in Scotland, England, and England's American colonies. Its relevance resides in the fact that the 'War on Terror' reproduces with uncanny exactitude not just the key structures of the western European witch-hunts, but also their political function.

The witch-hunts were animated by a conviction that society was under attack by a demonic conspiracy: Satan was said to have assembled a vast network of people who had sworn allegiance to him at secret assemblies, and who were wreaking havoc under his direction, causing crop failures and other 'natural' disasters, outbreaks of disease, and the deaths of children and cattle. Alarmingly, the alleged participants in this conspiracy were often normal, even upstanding members of the community: a large majority of those who were arrested, tortured, and judicially murdered during the witch-hunts were powerless and vulnerable women, but the victims also included municipal councillors, merchants, and landowners.

Although the discourses of the witch-hunts incorporated elements of popular culture, there is overwhelming evidence that the witch-stereotype was constructed by lawyers and theologians. And whether by accident or design, the witch-hunts helped to stifle dissent among the labouring classes, which had increasingly taken the form of quasi-messianic insurrections (among them the German Peasants' Revolt of 1525). The anthropologist Marvin Harris, who noted this connection more than thirty years ago, wrote that the “witch mania [...] shifted responsibility for the crisis of late Medieval society from both Church and state to imaginary demons in human form [...]. The clergy and nobility emerged as the great protectors of mankind against an enemy who was omnipresent but difficult to detect.”7

Harris observed that in contrast to movements of protest, which gave the poor, if only briefly, a sense of solidarity, dignity, and common purpose, the witch mania “dispersed and fragmented all the latent energies of protest. It demobilized the poor and the dispossessed, [...] made everyone fearful, heightened everyone's insecurity, made everyone feel helpless and dependent on the governing classes[...].”8 It amounted to a sixteenth-century form of 'false-flag' deception.

Early modern legal systems influenced by Roman law incorporated torture as a standard means of acquiring evidence in criminal cases. But the witch-craze led to a greatly expanded reliance upon torture, together with a general relaxation of standards of evidence. Membership in the secret society of witches was defined by jurists as a crimen exceptum, a crime so far removed from normal wickedness as to require a corresponding extremism in the investigative and judicial responses to the threat.9 Because Satan, the central co-conspirator, was unavailable for questioning, and because the evidence of guilt by association with him was, by definition, spectral in nature, torture became the principal source of evidence. The result was a cascading proliferation of accusations. And since rules of evidence were relaxed, few of the accused escaped conviction.

The analogies with the post-9/11 'War on Terror' are obvious enough. Once again, by accident or design, a powerful movement of dissent—in this case, the international mobilization against neoliberal globalization that produced mass demonstrations in Seattle, Québec, Genoa and elsewhere between the late 1990s and 2001—has been stifled.10 And once again, the sense of agency and solidarity that fed organized opposition to an exploitative elite has been deflected and dispersed by a demonizing fantasy—a “myth of universal terrorism”11—about a terrifying otherness whose instruments hate us for what is good in us and seek to destroy our central institutions.

That fantasy has legitimized rampant Islamophobia, as well as a powerful deployment of the state's agencies of repression. It has also led to a fearful acceptance of claims that these forces of repression are our only defence against 'terror'. The demonizing fantasy has legitimized, in the United States, an effective abandonment of the rights of citizens once protected by the Constitution and Bill of Rights,12 and in Canada and elsewhere it has resulted in the passing of 'Terror Laws' that relax normal rules of evidence and permit claims of 'national security' to trump the long-established rights of defendants to know the evidence against them and cross-examine accusers in open court.

Do we need to be reminded that one central motive of post-Enlightenment democratic jurisprudence has been to prevent arbitrary infringements of what we now recognize as essential human rights? The Fifth Amendment to the US Constitution, for example, is a barrier against torture: it protects citizens from being coerced into self-incrimination—by means including what US police, borrowing a term from the witch-hunt torturers, call the “third degree.”13 In the Khawaja case, the judge's decision to admit hearsay evidence14 has thrown open the door to evidence that could be derived from torture in other countries, or otherwise tainted.

* * * *

At one key point, the analogies I have been pursuing break down. There never was any such thing in early modern Europe as a conspiracy of witches; Satan, its organizer, exists only in human imaginings; and the 'crimes' for which many thousands of people died never happened. In contrast, the terrorist atrocities of 9/11, and of the bombings in Bali, Madrid, and London, were very real indeed.

But although the crimes of 9/11 are horrifyingly real, and although Islamist extremists with an appetite for unconstrained violence do exist, we know the official narratives about 9/11 to be systematically false. The evidence we have is unequivocal: the attacks can only have been organized by groups within the state apparatus. Given the consequences for the democratic rule of law, it is all the more important to establish, through further patient and scrupulous research, a public understanding of the actual sequence of events that will be as wide and deep as possible.

Under the regency of George W. Bush, the American state appears to have adopted a theory of governance, most definitively propounded by the Nazi jurist Carl Schmitt, according to which the defining characteristic of sovereign power is ts self-exemption from the laws it applies to its subjects.15 Schmitt's doctrine of a “sovereign exemption” stands in direct opposition to democracy; it also symmetrically complements the witch-hunt doctrine of the crimen exceptum. The state declares certain crimes so appalling that anyone accused of them is denied the normal protections of the law—while on the other hand, the people who punish such crimes are exempted from obedience to the laws they administer and enforce.

Canadians need to ensure that in this country no-one is denied the full protection—under democratic jurisprudence—of our Charter of Rights and Freedoms. That means repealing the 'Terror Laws' passed by a panicked Parliament in the wake of the 9/11 attacks.16 At the same time we should ensure that the RCMP and CSIS do not quietly grant themselves a “sovereign exemption” from any inquiry into the means by which they fabricated the demonizing fantasies of the Toronto 18 case.




1  Michael Friscolanti, “'Toronto 18' informant Mubin Shaikh ups his price,” Maclean's Magazine (23 July 2008), http://www.macleans.ca/canada/national/article.jsp?content=20080723_115512_115512&page=1.

2  Thomas Walkom, “Two more odd characters join cast of terror trial,” Toronto Star (21 June 2008), http://www.thestar.com/printArticle/447094.

3  See Walkom, “Two more odd characters”: “According to informer Mubin Shaikh, Kifayatullah was the man who advised an alleged terrorist ringleader about the virtue of truck bombs. Indeed, Shaikh said that it was from Kifayatullah that he first heard mention of ammonium nitrate, or fertilizer.”

4  Supreme Court of Canada, Canada (Justice) v. Khadr (28 May 2008); quoted by Lawyers Against the War, “Release and repatriation of Omar Khadr, Canadian citizen imprisoned in Guantánamo Bay” (Letter to Prime Minister Stephen Harper, Attorney General Robert Nicholson, Minister of Foreign Affairs David Emerson, Minister of National Defence Peter MacKay, 30 July 2008), available at www.lawyersagainstthewar.org.

5  For details, see Lawyers Against the War, “Release and repatriation of Omar Khadr.”

6  David Akin, Khadr sues Harper over repatriation,” National Post (9 August 2008): A5.

7  Marvin Harris, Cows, Pigs, Wars and Witches: The Riddles of Culture (New York: Random House, 1974), pp. 237-38. Ken Couesbouc briefly noted the relevance of this book to the 'War on Terror' in “The New Witchcraft: Marvin Harris on the Roots of the War on Terror,” CounterPunch (11 October 2006), http://www.counterpunch.org/kouesbouc10112006.html. For another approach to these issues, see Robert Rapley, Witch Hunts: From Salem to Guantánamo Bay (Montréal and Kingston: Queen's-McGill University Press, 2007).

8  Harris, p. 239.

9  See Wolfgang Behringer, Witchcraft Persecutions in Bavaria: Popular Magic, Religious Zealotry and Reasons of State in Early Modern Europe, trans. J. C. Grayson and David Lederer (Cambridge: Cambridge University Press, 1997), pp. 215, 230-32, 312.

10  In late September 2001 the editor of The New Republic declared that if a planned protest against the IMF and World Bank took place in Washington DC, the anti-globalization movement would, “in the eyes of the nation, have joined the terrorists in a united front”; and US trade representative Robert Zoellick identified 'intellectual connections' between al Qaeda and anti-globalization demonstrators (Peter Beinart, “Sidelines,” The New Republic [24 September 2001]; quoted from Corey Robin, Fear: The History of a Political Idea [Oxford and New York: Oxford University Press, 2004], pp. 188-89.) Corey Robin adds that “Antiglobalization activists and intellectuals quickly felt the power of such rhetoric: many, including the AFL-CIO, stayed away from the [Washington] protest, and the movement has since fallen into abeyance” (Fear, p. 188).

11  The term is from Emmanuel Todd, Après l'empire: Essai sur la décomposition du système américain (2002; 2nd ed. Paris: Gallimard, 2004), ch. 1: “Le mythe du terrorisme universel.”

12  See Naomi Wolf, The End of America: Letter of Warning to a Young Patriot (White River Junction, Vermont: Chelsea Green Publishing, 2007); and Sherwood Ross, “Is America Fascist?” Scoop Independent News (10 August 2008), http://www.scoop.co.nz/stories/HL0808/S00119.htm.

13  See Margreta de Grazia, “Sanctioning Voice: Quotation Marks, the Abolition of Torture, and the Fifth Amendment,” in Martha Woodmansee and Peter Jaszi, eds., The Construction of Authorship (Durham: Duke University Press, 1994), pp. 281-302.

14  Ian MacLeod, “Judge allows hearsay evidence in Khawaja trial,” National Post (24 July 2008).

15  For an account of Schmitt's theory, see Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998), pp. 15-29.

16  See Kent Roach, September 11: Consequences for Canada (Toronto: University of Toronto Press, 2003).