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

[Index: Canadian politics, war on terror, terrorism, Toronto 18]


[Date: July 2008]

Further Reflections on the 'Toronto 18' Case:


'Terror Law' and the 'Crimen Exceptum'
(July 2008)

Michael Keefer

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 RCMPin 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 wellone Qari Kifayatullah,
who claimed expertise with ANFO explosives. Thomas Walkom writes that the RCMP
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.

has shown no interest in interviewing or arresting this manfor 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 bombsa project that police agents furthered and almost certainly
originated as well3identified the accused as 'home-grown terrorists' in the manner of
Timothy McVeigh; while the motif of beheadingset into motion by a police synopsis of
accusations, and given added currency by the police mole Mubin Shaikhlinked the
accused with the barbaric 'terrorist international' of arch-beheader Abu Musab alZarqawi. 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 Guantnamo since 2002, when he was fifteen,
and repeatedly tortured, will be on trial for his life this autumn before an illegally
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.

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 Guantnamo 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 kangaroocourt 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 fifteen4 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 Guantnamo 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.

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 evidenceand the fact that sleep-deprivation torture is
no less disgraceful in Toronto than in Guantnamo. 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 experiencethe witchcraze 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 dissentin this case, the international
mobilization against neoliberal globalization that produced mass demonstrations in
Seattle, Qubec, Genoa and elsewhere between the late 1990s and 2001has been
stifled.10 And once again, the sense of agency and solidarity that fed organized opposition
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 Guantnamo Bay (Montral and Kingston: Queen'sMcGill 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:

to an exploitative elite has been deflected and dispersed by a demonizing fantasya


myth of universal terrorism11about 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 selfincriminationby means including what US police, borrowing a term from the witchhunt 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

11
12
13
14

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).
The term is from Emmanuel Todd, Aprs l'empire: Essai sur la dcomposition du systme amricain
(2002; 2nd ed. Paris: Gallimard, 2004), ch. 1: Le mythe du terrorisme universel.
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.
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.
Ian MacLeod, Judge allows hearsay evidence in Khawaja trial, National Post (24 July 2008).

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 selfexemption 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 lawwhile
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 jurisprudenceof 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.

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).