Innocence vs guilt in terrorism cases

Shakespeare must have had a lot against lawyers.  It was the great English playwright after all who had a character in Henry IV Part 2 say “the first thing we do, let’s kill all the lawyers’.  There has been a lot of debate over what this quote means – in any event it has stood the test of time.

I do not wish ill on anyone, including lawyers – well perhaps terrorists would be an exception to my sense of mercy – but I do find it odd that some lawyers say some very strange things about their clients who happen to be contesting terrorism charges.  Before I continue, however, let me state that I get it.  I get what defence lawyers are trying to do.  They use all their skills and tactics to cast doubt on the case made by the state/Crown/prosecution and its witnesses in order to convince the judge/jury that the evidence does not meet the threshold to render a guilty verdict.  After  all, in our system of justice everyone is presumed innocent and it is the role of those who lay charges to show, beyond reasonable doubt, that the person on trial did indeed do whatever it is s/he is charged with.  If the prosecution fails to do this it is incumbent on those rendering judgment to go back to first principles: innocent unless proven guilty.  And I think that this is a very good system.

But sometimes I think the average person believes that a verdict of ‘not guilty’ is the exact same as ‘innocent’.  Is it?  Al Capone was never found guilty of racketeering or ordering someone’s murder, but rather of tax evasion, but does that mean he was ‘innocent’ of the previous charges?  Of course not.  The inability of the US to gain a successful guilty finding on the more serious charges was probably linked more to Mr. Capone’s ability to buy off or intimidate witnesses than his ‘innocence’.

All this came to the fore today when I learned that a Universite d’Ottawa professor, Hassan Diab, arrested by the RCMP in 2008 and extradited to France in 2014, may soon be a free man after authorities in France dropped terrorism charges against him for his role in an attack on a Paris synagogue in 1980.  His clearly happy Canadian lawyer has stated that this decision by the French ‘proved his client’s innocence.’

It does nothing of the sort.  Recall that innocence is presumed: it is guilt that must be proven.  I have no idea if Mr. Diab was involved in a terrorist attack almost 40 years ago.  Only he really knows that and he is maintaining he had nothing to do with the incident as he was in Lebanon at the time.

More generally, there are calls for Canada to review its extradition practices given this finding after that same lawyer stated on CBC Radio that the case was always weak and the evidence shoddy.

Here is what I think happened.  French authorities had good reason (reasonable grounds) to go after Mr.Diab in the first place, meaning that in the course of their investigation they discovered information (evidence) linking him to the crime.  The police in France, or any other democracy for that matter, do not have the luxury of targeting random people in their investigations of serious crimes like terrorism.  If Mr. Diab came on the radar it must have been, at least at the time, for legitimate reasons.

Given the very long time lag between the attack and the trial several things may have transpired.  Some of those who provided the original evidence may be dead.  Or they may have forgotten key details.  Or they may have lied all along.  Whatever the reasons, French officials have elected, upon further review of what they had, to drop the matter as they felt there was little chance of success.  This has nothing to do with innocence, only the relative merits of their case.

There are parallels in Canada.  After the recent decision to grant three Canadian Arab Muslim men $10 million each for the torture they suffered at the hands of the Syrians and Egyptians, it was frequently claimed that CSIS/the RCMP targeted the men because of their race/religion.  Such a claim is laughable.  They were ‘targeted’ based on reasonable grounds to suspect/believe (CSIS uses the former standard, the RCMP the latter) they posed a threat, not because they were Muslim.  The fact that they were never charged is irrelevant.  Investigations are carried out to determine WHETHER charges are warranted not as a guarantee that they will be.

I understand the satisfaction and relief of Mr. Diab’s legal team.  They must be thrilled that his judicial ordeal appears to be coming to an end.  Their happiness is no excuse, however, for making statements that would not, frankly, hold up in court.  At the end of it all, someone is still at large for an attack that killed four people and wounded dozens.  That bomb did not plant itself.

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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