Momin Khwaja Case: Canada's Anti-Terrorism Law Tested

[Shahzad Shameem]

Momin Khwaja was the first person arrested under Canada’s Anti-Terrorism legislation, enacted soon after the September 11 attack on the World Trade Center in New York. Khwaja is a young Muslim Canadian who worked for the Ministry of External Affairs of the Government of Canada. On March 29, 2004,

two RCMP officers walked into his office and arrested him under the new anti-terror Act. The same day, his house in an Ottawa suburb was raided by the police and thoroughly searched; they seized his computer, three assault rifles, 640 rounds of ammunition, $10,000 in cash and literature with titles such as Defence of the Muslim Lands, Decisive Battles of Islam, and The Martyrs of Bosnia.

His arrest was initially received with shock and incredulous-ness. Khwaja was born in Canada and came from a well-respected family. His father was an academic and mother also well-educated. His mother and brother complained that the Mounties were racists and that the family was wrongfully targeted simply because they were Muslims.

Khwaja was charged for being part of the London bombing conspiracy, known as Operation Crevice. His alleged role was to build a remote detonator, which he called “Hi-Fi Digimonster”, to be used in the London bombings. Nine Britons, mostly of Pakistani origin under the leadership of one Omar Khayam, were arrested for a conspiracy to bomb various targets in London. Eighteen months ago, five of these Britons were sentenced to life in prison for plotting bombings.

Khwaja was tried under Canada’s Anti-Terrorism Law. The case turned out to be more than a trial of Momin Khwaja; it also became a trial of the legislation itself. The Defense challenged the Law as being against Canada’s Charter of Fundamental Rights. Any evidence based on one’s religious beliefs was challenged as inadmissible. The evidence itself was never challenged but the Defense challenged the use of information obtained on a confidential basis from intelligence agencies of other countries, to which it was denied access. These challenges caused inordinate delays in the proceedings and the trial lasted five years.

The decision of the court was announced on October 29 and it validated the necessity of the Anti-Terrorism Legislation. The judge rejected the charge of Khwaja’s direct participation in the London conspiracy, for lack of sufficient evidence. “There is no direct evidence that Khawaja knew of the ammonium nitrate fertilizer or the consideration of domestic targets,” Judge Rutherford ruled. He added that “no mention of the fertilizer bomb plot is overheard in Khawaja's presence. Yet there is a lot of talk about it after he returns to Canada.”

While rejecting the charge of direct participation in that particular conspiracy, the judge nevertheless held Khwaja guilty on five charges of financing and facilitating terrorism. The judge ruled, “He seemed willing to help any way he could. Ask him to send money? He did. Ask him to take supplies to … Pakistan? He did. Ask him to build a remote detonator device? He did, or was well into a work in progress.”

The most incriminating evidence against Khwaja was provided by himself, through his numerous emails written to his co-conspirators and his girl-friend. He wrote: “I always wanted to be a soldier, cuz when I was like five yrs old me mum and I would read story about Ali radiAlla Anhu and how he chopped off the head of Marhab the kafir [infidel] and about jihad and stuff,” reads one of Mr. Khawaja's emails cited by Judge Rutherford.

Another read: “When the kuffar amreekans invaded Afghanistan that was .. the most painful time in my whole life … it would tear my hear knowing these filthy kaafir dog Americans were bombing our muslim bros and sisters … Shaykh Usama bin laden is like the most beloved person to me in the whole world, after Allah.”

Both the prosecution and the defense hailed the judgment as victory. Khwaja’s parents too declared it as a clearing of their son and their family’s name. The prosecution claimed partial victory as it was able to establish the terrorist credentials of Momin Khwaja.

In the end, the Anti-Terrorism legislation has turned out to be the real winner in this case. The judge held the legislation to be not in violation of the Canadian Charter of Rights. The case also proved the necessity for such legislation; Khwaja could not have been proved guilty of any criminal charge and he would have gone scot-free without the anti-terror legislation; with this legislation, he is likely to get a sentence of a life imprisonment.

The trial also proved the effectiveness of international cooperation in preventing terrorism and prosecuting terrorists. The arrest and successful prosecution of Khwaja could not have been possible without close cooperation between the British intelligence agencies, the FBI, the Canadian Security Intelligence Service and the RCMP.

Dost Mittar November 2, 2008