Why joining a terrorist group should be enough to convict

I am pretty sure I have mentioned this before but here it is again. When I worked for CSIS and my colleagues and I had occasion to talk to Canadians who had traveled to Afghanistan to join Al Qaeda we would often hear some lame excuse from the returnees as to what they did while in theatre. Lines such as “I just drove the bus” or “I just served tea” were common. We would roll our eyes and move on.

Well, how about “I just made shoes”?  That seems to be the excuse a German Islamic State (IS) fighter is using in his attempt to come home. He says he traveled to make prosthetics and orthopedic shoes and maybe he did but there is another completely different possibility. Maybe he did other stuff that he won’t admit. In any event, sticking with the shoe theme,what kinds of shoes do IS terrorists prefer? Doc Martens? Pradas? A nice chiffon slipper for evening wear perhaps as you proceed to rape little girls?

In the end, does it matter what our cobbler did in Iraq? Is it not enough that he left Germany to join IS? Is that not an offence in itself, one worthy of the most severe penalty? Many think so. On a call-in show at CFRA yesterday with Evan Solomon that is what one Ottawan said.

The truth be told, leaving Canada or many other countries to join a listed terrorist entity is a crime. Full stop. Whether you killed, raped, maimed, drove the bus, served tea or just worked at a last, you are a terrorist. You do not deserve sympathy and the oft-heard “I made a mistake” is becoming tiresome to me and a lot of Canadians.

The problem remains: how to gain a conviction. Ah, that’s the hard part. I am not a legal expert but I imagine that a confession (“yes I went to Iraq to join IS) may not be enough. Even a lousy defence lawyer would shred this case in a heartbeat. We need a lot more to succeed in putting these losers away for a long time.

One idea I have heard bandied about of late is that of ‘reverse onus’. This is a different way of looking at the law where normally the state has to prove beyond a reasonable doubt that you did what the state says you did. In reverse onus that burden shifts onto the individual specified to disprove an element of the information.  In other words, if a Canadian traveled to Iraq between 2013 and 2017 it is incumbent upon that person to demonstrate that the trip was NOT in order to join IS. There being few real, valid reasons to undertake that voyage during that time period, perhaps we would gain more convictions.

This does entail, however, that for a select few you are considered guilty unless you can prove yourself innocent. Hence, it goes against a fundamental value of Western justice. There are many people much better versed in the law that should weigh in on this. As an amateur it does have some appeal. As a former CSIS guy who knows how hard it is to collect evidence in terrorist cases, especially those that involve activities abroad, it appeals to me a lot.

The debate over what to do with those who became terrorists and want a ‘do-over’ will continue. We will struggle with this question, not because we are keen to forgive these terrorists, but because the challenge of prosecuting is a big one. I don’t think anyone in the Trudeau government wants to be seen as soft on terrorism.

But back to our shoemaker. Lewis Carroll wrote: “The time has come, the walrus said, to talk of many things. Of ships and shoes and sealing wax, of cabbages and kings”. Who’da ever thunk we would have learned of a shoemaker for IS? As I always say, truth is stranger than fiction.

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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