The case of the big talker convicted of terrorism

Tuesday, June 24, 2014

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Of all the questions that swirl around the trial of Mohamed Hassan Hersi, the first Canadian to be convicted under new terrorism laws, one fact is indisputable: Hersi is a talker.

The Somalia-born 28-year-old could opine about why Kenyans were such good long-distance runners, the Babylonians, the difference between planting annuals and perennials, Manchester United’s Wayne Rooney, poppies, Ultimate Fighting, pirates and the EEZ (exclusive economic zone).

And that is only what was discussed during the first few meetings with an undercover Toronto police officer who ingratiated himself to Hersi. “I was a little bit impressed with his ability to rhyme off things,” the officer admitted during his testimony.

“Really, he’s a walking encyclopedia,” says his younger brother, Yassin. Hersi told a jury here last month from the witness stand that sometimes, “I’m talking out of my ass.”

Hersi was convicted of two terrorism offences on May 30 – attempting to participate in terrorist activity, and counselling another to do the same.

The crimes he was charged with were introduced after the attacks of Sept. 11, 2001, but the Toronto man’s case was the first test for the court of these provisions.

Canada’s security agencies, struggling with a recent surge in Canadians travelling to fight in Syria, have closely watched the prosecution. The RCMP issued a statement celebrating the verdict as a “significant milestone.”

But Paul Slansky, Hersi’s lawyer, asked the judge in a Brampton court to stay the conviction, claiming police entrapped his client because they did not have reasonable grounds to launch an investigation. Essentially, he argued, Hersi was set up and convicted for comments that were taken out of context. His client is a big talker, not a terrorist.

“They were fishing,” Slansky said outside of court last week. “Police can’t for instance just put a wallet down in the middle of the park and see if someone comes and picks it up and keeps the money … There have to be limits on how and when the police investigate.”

Slansky told the court that this case would “criminalize expression,” in effect becoming a conviction for “thought crime.”

Crown Attorney Iona Jaffe dismissed the idea. “This was an example of good policing,” she said in an interview. “The judge would have to find that police created the opportunity for Mr. Hersi to join a terrorist group and nothing could be further from the truth.”

Superior Court Justice Deena Baltman agreed with the prosecution, dismissing Slansky’s motions Friday afternoon.

The ruling clears the way for Hersi’s sentencing Wednesday. He faces up to 10 years in prison in the case that began almost four years ago, with a Toronto drycleaner and The Anarchist Cookbook.

IN ADDITION TO Hersi’s verbose musings, there were some other undisputed details in the trial.

An “Agreed Statement of Fact” stated that on Sept. 14, 2010, a drycleaner found a USB drive in a bag of clothes. Downloaded on the drive was TheAnarchist Cookbook, a manual first published more than 40 years ago that describes how to make explosives; a Canadian Forces Department of National Defence Operational Manual, publicly available; and reports from Intercom Security, where Hersi worked.

Two days later, the cleaner called police. Hersi, it was concluded, had access to the USB stick, although there was some debate as to who loaded its content.

For nearly four months, Toronto police investigated him, joining forces with the RCMP’s counterterrorism unit in January 2011. On March 29, Hersi was arrested at Toronto’s Pearson airport, preparing to board a flight for Cairo, via London. He had with him more than $7,000 and an envelope with this University of Toronto degree and photos, an iPod, with a cracked screen, a “spy pen” and four books on learning Arabic.

The question for the jury was whether Hersi was going to Cairo to study Arabic — as he and his friends and family maintain — or, as the prosecution argued, was destined for Somalia to join the East African Al Qaeda group, Al Shabab.

Other Canadians have been convicted under the anti-terrorism laws, including Momin Khawaja, who is serving a life sentence for building a detonator as part of a plot to bomb British targets and members of the group dubbed the Toronto 18, who planned to hit downtown and a military base north of the city.

The Hersi case marked the first convictions under the provisions dealing with attempting to participate in a terrorist activity (Section 83.18 of the Criminal Code) and for providing counsel to a person to participate in a terrorist activity (Section 464).

Several Canadians have gone abroad to fight with the Shabab. More recently, Canadians of Somali heritage have left for other conflict zones, such as Syria, to join Al Qaeda-inspired groups.

Mahad Dhore, a York University student, left his Markham home in 2009 to visit his ailing grandmother in Kenya and slipped into Somalia, rising among the Shabab’s ranks to become a “logistics chief.” He led a suicide bombing mission inside Somalia’s main courthouse complex in 2012, killing more than 30 and injuring dozens, a Star investigation in Mogadishu found.

In the spring of 2011, when it is alleged Hersi left to join the group, the Shabab still controlled parts of Mogadishu and Somalia’s south. Today, they have lost much of their territory, but remain as deadly, and are increasingly striking outside of Somalia, such as September’s attack on Nairobi’s Westgate Mall which killed more than 60 people.

But there are also examples in U.S. cases, post-Sept. 11, when an undercover officer or an informant has acted as an “agent provocateur,” unlawfully trapping a suspect. Various accused have been acquitted and the police forces condemned for “overzealous” agents or arrests made on circumstantial evidence.

At its core, this case pitted the credibility of Hersi against the undercover officer. (Both declined to be interviewed for this article.)

The Toronto police officer, who is of East African heritage and whose identity is protected under a publication ban, had never worked undercover previously. But once the USB was linked to Hersi, he was sent to pose as a consultant interviewing security guards and quickly became good friends with the outgoing Hersi. At first they just talked during visits at Hersi’s workplace, at Bay and Front Sts.

Later, they would meet for shawarma and shopping trips; they prayed together and watched basketball.

“U.C.”, as the undercover officer was known in court, described one November evening when they wandered the city passing the time before going to the Raptors game with tickets he had offered Hersi. They played video games on Yonge St. and were given free cookies, Oreo Cakesters, he told the court, reading from his notes; they got more freebies at The Bay, where they picked up samples of cologne.

During this time, Hersi reportedly talked about a friend named “Ibrahim,” who left for Somalia to fight for the Shabab, according to a transcript of U.C.’s testimony. “He was explaining how you shouldn’t tell your parents because they’ll feel as though they’re trying to help you and they may tell police, and when they do that you’ll end up getting caught.”

Hersi went to high school with some of the six Canadians of Somali heritage who left to join the Shabab in 2009 and 2010, including Mohamed Elmi Ibrahim. A YouTube video later claimed Ibrahim had been killed in “battle.”

As usual, the pair talked and talked and talked that night, and since police did not yet have a warrant for a wiretap, U.C. would write out his notes after their meetings ended. After this evening, he told the court, he wrote from 11 p.m. until 4 a.m.

He would later testify that Hersi said he would be travelling to Somalia to join the Shabab.

Hersi countered that it was the officer who said he would be going and he tried to persuade him otherwise, only later providing advice on how not to get caught because he didn’t want a friend to go to jail.

U.C.’s testimony was based on his notes and text messages, which police said were deleted and not archived, but U.C. testified he had copied down verbatim. Slansky argued some of the texts would have proven Hersi’s refusal to join Al Shabab once U.C. suggested.

The court also heard wiretap recordings from 2011 of Hersi giving U.C. detailed advice on avoiding detection, telling him to book his flight at least a month in advance with a credit card. He tells him pistols are easy to get in Kenya, and complains about Islamophobia and commercialism in Canada, saying Somalia offers a better, simpler life.

The jurors deliberated for two days. They were not convinced of Hersi’s claims of innocence.

“IF I THOUGHT he was going to Somalia to join the Shabab I would have been the first to call police,” says Mohamed Tabit, Hersi’s 64-year-old uncle, who secured Hersi’s bail after he was arrested. “I put my house, put $200,000 forward to get him out on bail and act as a surety. I would never support him if I thought he was guilty.”

Hersi’s parents and three siblings fled Somalia for refuge in Canada in 1998, but his father had a heart attack during their travels and died, and Tabit became a father figure for the children in Toronto. Hersi lived with him and his wife for the last three years following his arrest and before his bail was revoked with the conviction last month.

Tabit is well-established in the Somali diaspora, coming here in 1986 and helping establish a community centre that offered counselling. “I’ve run several workshops for the youth, telling them to stay away from trouble, to go to school and stay in school. We don’t want our kids to go to jail, or go to Somalia and die.”

He continues to defend his nephew and said he looks forward to an appeal. “I believe in the Canadian justice system, and I believe justice will prevail in this case and others,” said Tabit. “But I don’t like the way police have handled this case. There are too many contradictions and conspiracies.”

Hersi’s mother, Marian Mohamed, asks why her son worked sometimes 80 hours a week and repaid thousands for his university loan if he intended to join a terrorist group, and die a shaheed, or martyr, as he told U.C. was every Muslim’s dream.

“We hate Al Shabab. We all hate them,” she said, proudly noting her four children were raised in a tough Scarborough neighbourhood but managed to rise above the poverty and gangs to attend university or college. “If he was going then he should be in jail. But this is all fabrication.”

ONLY HERSI KNOWS whathis plans were once he reached Cairo.

Duelling experts on Al Shabab presented differing opinions on whether Hersi was a likely candidate.

“The prosecutor was arguing that it was possible for someone to wake up one day, get on a plane, land in Somalia and join the Shabab just like that without prior connections,” said Abdi Aynte, the director of the Mogadishu-based Heritage Institute, in an interview. “You need to have an established contact inside the Shabab before they even let you in.

“I admittedly do not have all the details of the case itself, I was brought in as an expert on the context, but I didn’t think the jury could establish beyond reasonable doubt that he was going to join.”

Matt Bryden, director at Sahan Research and the former head of the UN monitoring group on Somalia, testified for the Crown that there had been instances of “spontaneous recruits” and a connection isn’t necessary.

“There have been cases where the contact has been sort of by chance by arriving in Kenya, and going to a place where people have then looked for contact,” Bryden told the court, according to a transcript of his testimony.

Slansky asked Bryden: “But you don’t go to a border and see a big sign, a neon (sign) saying ‘Meet Shabab, a thousand served here.’ There is no clear way to go. You are just saying it’s possible.”

Replied Bryden: “I’m saying you cross the border into Al Shabab-controlled territory (and) they will take you into custody and want to know who you are, and you would then declare that you wish to join the movement.”

Twelve jurors concluded that Hersi was on his way to Somalia to join them.

Justice Baltman will determine this week the time he will serve in Canada for that crime.

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