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Mohammed Junaid Babar, a 33-year-old, Brooklyn-raised convicted terrorist, made a surprise appearance as the first-day witness in the trial against Canadian terrorism suspect Mohammed Momin Khawaja. It's expected Mr. Babar will testify that he met Mr. Khawaja in Pakistan and facilitated his entry to a training camp.
Mr. Khawaja, 29, is the first man charged under Canada's Anti-Terrorism Act. His trial began Monday in Ottawa under heightened security.
Mr. Babar's testimony in Canada follows similar evidence he gave two years ago in the UK as part of a plea bargain agreement to reduce his eventual U.S. Jail sentence.
Momin Khawaja is the first person to be tried under Canada’s Anti-terrorism Act. (Tom Hanson/The Canadian Press)
Recounting his strange radicalization Mr. Babar, a university dropout and former security guard, described how he was increasingly drawn to joining an armed jihad by the time 9/11 occurred.
"My mother worked at the World Trade Centre," he said, explaining she had made it out that morning before the towers crumbled. Despite the fact that terrorists had almost killed his mother, "about six or seven days (after 9/11) that's when I decided it was time to go to Afghanistan and fight," he said.
Mr. Babar testified he wanted to fight on the side of Taliban and al-Qaeda. He said he was driven by the belief that all the other Islamic countries in the Middle East were ruled by corrupt governments that deserved to be overthrown by force so as to install Islamic rule.
Mr. Babar testified he fell in with an extremist outfit known as al-Muhajaroon, which had only a handful of members in New York and Pakistan, but hundreds in the United Kingdom. The organization helped him install himself in Pakistan in 2001-2002, he has testified. It was in Pakistan where he began meeting members of the British cell that Mr. Khawaja allegedly joined later.
Crown prosecutor David McKercher spent nearly 90 minutes laying out the bomb-building, terrorist-training and terrorist-financing charges against Mr. Khawaja earlier Monday.
In broad strokes, the Crown alleges Mr. Khawaja was involved in a trans-Atlantic terrorism conspiracy, meeting a group of fellow extremists in London in 2002 before learning how to fire AK47s and rocket-propelled grenades at a Pakistan training camp in 2003.
He also allegedly constructed a detonation device he called the “high-fi Digimonster” which was seized from his Ottawa home in 2004.
“The result would be massive destruction and loss of life,” Mr. McKercher told the court, explaining the Digimonster was intended to spark simultaneous explosions around London, including possible attacks on a shopping centre, a night club and a power grid.
Not only did the RCMP seize the Digimonster, Mr. McKercher said, but tests revealed precisely how it was outfitted with signal jammers and encryption codes to prevent a premature explosion. Mr. McKercher added the device was supposed to work on the 916.84 megahertz frequency, indicative of the prosecutor's keen eye for detail.
Rifles, money and government credentials
The Crown's opening statement suggests agents watched or listened to just about every significant conversation or meeting Mr. Khawaja had in the six month run-up to his March 2004 arrest. According to the Crown, the Digimonster was seized from Mr. Khawaja's brother's room in the family home. Three rifles –including one with a bayonet – were seized from the suspect's own bedroom along with $10,300 under a mattress, the Crown said.
Mr. Khwaja worked as a computer contractor at Canada's department of Foreign Affairs at the time of his arrest and Mr. McKercher suggested the suspect used his DFAIT credentials for terrorist activities. The prosecutor told the court Mr. Khawaja sent e-mails about his detonator project to London co-conspirators through a DFAIT computer, that he showed UK customs agents his DFAIT pass when he entered the UK, and that he suggested to his conspirators he could use DFAITs internal shipping services to send goods to the mujahedeen in Pakistan.
Mr. Khawaja, beardless and with long wet hair parted in the middle, simply pleaded “not guilty” in a soft-spoken voice to each of the seven terrorism charges he faces. The defence has not signalled how it will attempt to rebut these allegations.
Four years of official silence ends
The prosecution's opening statement ended more than four years of official silence from federal government authorities on the case, marking the first time evidence in the case has ever been openly discussed.
Prosecutors have deferred to a court-ordered publication ban for years, and although the trial is only beginning now, the Khawaja case has already served to highlight a number of cumbersome Canadian criminal-justice procedures.
To protect Mr. Khawaja's right to a fair trial, his lawyers requested the gag order immediately after his March, 2004, arrest. Challenges of the constitutionality of the Anti-Terrorism Act and later attempts to see secret documents consumed all the court time since 2004.
Some experts looking at the Khawaja case and others like it say that regardless of the rights of the accused, society should have the right to know the blow-by-blow of the allegations much sooner.
“The gag orders imposed on the media and authorities by the judiciary in [Commonwealth] countries prevent the authorities from informing the Muslim community about the scope of the terrorist threat because the evidence against the suspects cannot be disclosed until the trials are over,” writes Marc Sageman, a psychiatrist and former CIA case officer in an influential new book, Leaderless Jihad.
Mr. Sageman says the London plot that Mr. Khawaja is alleged to have been involved in stands as a clear example of an emerging “homegrown” threat, and authorities should reconsider a host of practises – including court-imposed pretrial gag orders – to better challenge an extremist narrative that seduces Westerners into joining armed jihad.
“The gag orders have contributed to broad public and especially Muslim skepticism and suspicion about” terrorism cases, Mr. Sageman writes. “The idea that the public can suspend judgment about such dramatic events as arrests and wait for three or four years to discover the evidence runs against human nature.
“The public will fill in the gaps in its knowledge and this can potentially turn against the authorities.”
Even among Commonwealth countries, Canada is particularly prone to protracted pretrial debates that lengthen gag orders on the evidence. For example, haggling over document disclosure can serve to delay a trial for years – as happened in the case of Mr. Khawaja.
Comparatively, U.S. cases are more efficient. “In the US, criminal defendants have a slightly narrower constitutional right to disclosure,” Wake University law professor Robert M. Chesney, a specialist in terrorism law, wrote in an e-mail to The Globe and Mail.
“Prosecutors must disclose that which reasonably could be used as exculpatory, not just relevant” as is the case in Canada.
State secrecy
In Canada, state secrecy matters are also decided by Federal Court judges who aren't involved in the actual trial, thus creating a bottleneck in the process. U.S. trial judges are one-stop shops, as they are given the scope to determine which documents are secret and which are not.
“Let's say you have a qualifying document that should be disclosed but that the government wants to keep secret. [The U.S. Classified Information Procedures Act] allows the government to apply to the trial judge with that argument,” Mr. Chesney wrote.
“The judge will determine first whether the document really is disclosable, and if so, whether there is any way to craft a compromise or substitute that would disclose the key substance without undue harm to classified info.
“That usually resolves the matter.”
The disclosure issues that delayed the Khawaja trial threaten to delay the trial of a group of Toronto-area suspects arrested in 2006. One peripheral suspect – legally considered a youth – is currently on trial having had relatively few pretrial legal issues. But 10 adult accused remain mired in the early stages of preliminary wrangling. One suspect has recently penned an open letter from prison complaining he is not getting adequate disclosure.
Still, the Khawaja matter remains the first test case of the 2001 Anti-Terrorism Act. Although the Canadian gag order has always remained in place, a parallel British trial that led to the convictions of five U.K. conspirators has revealed pretty much the entire case against Mr. Khawaja.
None of the British court evidence has been subject to a publication ban in Canada and much of it was repeated in court Monday.
Because Mr. Khawaja has opted for a judge-alone trial, there is no jury prejudice that can result from publishing the information.
The defence's challenge will be threefold: Rebut the evidence of items the RCMP says it seized in Ottawa; rebut the conversations and e-mails British agents secretly recorded, and rebut the evidence of a U.S. witness, a one-time co-conspirator with whom the FBI convinced to work for them.
The seizures
It's alleged that Mr. Khawaja built a remote control device for the British cell that wanted to detonate a bomb in central London. An RCMP officer flew to England two years ago to testify that he found circuitry in Mr. Khawaja's residence – actually his bedroom in his parents' house in Orleans, Ont. – that indicated the initiator worked at a range of up to 300 metres in an open environment.
The evidence was also that police teams discovered guns, knives, circuit boards, computer chips and literature with titles like ‘Terrorism and Self Sufficiency,” ‘Defence of The Muslim Lands,' ‘The Religion And Doctrine of Jihad,' and ‘CIA Special Operations and Equipment' U.K. Crown Prosecutor Mark Heywood gave more details of items seized from Mr. Khawaja's house: “A long rifle gun, 7.62 calibre weapon was found in a gun box in the bedroom, under the bed. There was also a second 7.62 calibre rifle in the same place. Both were not loaded but the box contained ammunition. A third long gun was also found under the bed as well as a gun cleaning kit and a box of 7.62 cartridges.
“On a shelf was found five books including ‘CIA Special Operations and Equipment' and a military manual. On another shelf was a combat knife. On a computer desk was a box which contained computer parts. Electrical wires and components were found in a plastic tray type box.”
Mr. Heywood continued continued: “A white box also contained computer parts on the main desk top. Also on the desk top were books entitled ‘The Art of War', ‘On Guerilla Warfare' and ‘Defence of the Muslim Lands.”
The intercepts
The British evidence was that authorities intercepted Mr. Khawaja's e-mails to the British group, wherein he updated them almost monthly on the progress of his remote control device, prior to visiting London to show them pictures.
For example in December 2003, Mr. Khawaja is alleged to have e-mailed the U.K. ringleader. He reportedly wrote, “We finished designing the baby, now we just gotta put things together and test out next week or two. If all goes well I'll come down and show you the baby.”
Then in January Mr. Khawaja allegedly wrote another e-mail, according to the British evidence: “Praise the most high, we got the devices working. I am gonna try and get a booking asap to come over and see you.”
In February, Mr. Khawaja allegedly asked if he should “parcel it over,” according to the British Crown: “I just want to do a demo of it and show you how it works and stuff, its range. So we gotta find a way to get it into the UK. Maybe I can courier it over...”
But the U.K. evidence suggested those plans were dispensed with. In another e-mail from Canada, Mr. Khawaja allegeldy wrote: “I think it will be too dangerous to mail or send anything ... You know these kuffs [short for kuffar, or unbelievers] are tight these days.”
British authorities testified their eyes and ears were trained on Mr. Khawaja for the entirety of his three-day trip to London later that month.
Both Mr. Khawaja and the British group were rounded up in sweeps at the end of March.
The witness
But all eyes Monday were on the well-guarded prosecution witness Mr. Babar, who arrived in Canada courtesy of the FBI. Mr. Babar was arrested in his native Brooklyn a few days after the London and Ottawa sweeps.
While the dubious interrogation practices of other U.S. intelligence agencies are very much under scrutiny these days – the CIA is under investigation for its use of waterboarding while the Pentagon is under fire for setting up Guantanamo Bay – what has been overshadowed is the FBI's effective use of more conventional U.S. laws and interrogation practices.
When the soft spoken Mr. Babar testified in London, he told the British court that black suited agents surrounded him on a street in his neighbourhood and brought him to a hotel. He stayed in the suite for several days as he was given the option of co-operating, in order to reduce his jail sentence.
He testified that he agonized over the decision until he recalled a haddith, or Islamic proverb, about one of the first martyrs of the religion. Mr. Babar testified that it reminded him that God forgives those who are made to say things after being captured by the enemy.
So he told about the backdrop to the bomb plot, how he allegedly met Mr. Khawaja and the British suspects in Pakistan about a year before the arrests.
Mr. Babar testified he was already in Lahore when he was told to smooth a Canadian's entrance to a Pakistani training camp.
“What up bro, listen my name is Kashif... send me your flight information because I will be picking you up from the airport,” his e-mail said.
The response, allegedly from Mr. Khawaja, was “Alright bro, arriving on Thursday July 15 at 3pm at Islamabad airport.”
Later that month, Mr. Khawaja allegedly attended a training camp in Pakistan. According to Mr. Babar's testimony the Canadian told him how he fired a rocket launcher for the first time – and smiled, saying how he very much wanted to do it again.
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