Should sanity of man convicted in terror plot matter?
Thorny legal issues arise when a man’s sanity comes into question this late in the process.
Still dressed in his orange, prisonissue jumpsuit, Chiheb Esseghaier attacked the hospital lunch with gusto. He ate each part in turn. He dug into the butter with his fingers. He saved two sugar packs for last. And then, obsessively, neatly, he cleared away the crumbs.
As he ate, Esseghaier spoke, through tangled beard and missing teeth. His body stank. His words weren’t always clear. But he was open, eager to talk, and he said many things.
He was convicted in March in a terror plot that was less foiled than it was stillborn. With an accomplice, Raed Jaser, he conspired to cut a hole in a railway bridge in southern Ontario. The two never came close to pulling it off. Jaser dropped out of the plot long before they were even arrested. But the men were tried nonetheless and found guilty on a host of terrorlinked charges this spring.
In June, as part of his sentencing process, Esseghaier spent four days in a Toronto hospital with a forensic psychiatrist. In their 15 hours together, Dr. Lisa Ramshaw watched him eat and pray. She saw him leave the bathroom — water dripping from his hair — after an elaborate cleansing routine. But mostly, she asked questions and listened.
Esseghaier told her about his childhood, about God and about the plot that led to his arrest and conviction, which he did not deny. He told her of his desire to create a single Islamic state, his refusal to masturbate, and the parallels between himself and the prophets, Jesus and Joseph.
“He had no apparent filter,” Ramshaw observed, “and talked about whatever was on his mind, from his religious beliefs to his wet dreams.”
At the end of the four days, and after consulting a host of trial transcripts and interviews, she came to a stark conclusion: Esseghaier, the man touted on his arrest in 2013 as a ringleader and terrorist recruiter, was suffering from a psychotic disorder, she wrote in a report to the court, and was most likely schizophrenic.
He was delusional and believed that his soul would be taken to God when he was 33, like Jesus, and that the other prisoners weren’t prisoners at all, but filmmakers “colluding with the officers to make a movie about him.”
Wednesday, Esseghaier and Jaser are due back in court for a sentencing hearing. Both face the possibility of life in prison.
But Ramshaw’s report now hangs over the process. It raises questions not only about the sentencing, but about the trial itself, about the decision to allow Esseghaier to defend himself, to try the two men together, and the thorny legal issues that arise when a man’s sanity comes into question this late in the process.
The report raises broader questions, too, more fundamental ones, about terrorism and insanity and justice, and whether any of us should care, given what Esseghaier tried, however ineptly, to do. He is insane, in other words; of that there’s little doubt. But whether that should matter at this stage is a much trickier question.
After his arrest, in 2013, news reports focused on Esseghaier’s religious fervour. He demanded to be tried by Qur’anic law and gave multiple interviews denouncing Canada’s presence in Afghanistan and refusing to deny the charges against him. He played, in other words, the perfect part of the Muslim extremist bent, by fierce ideology, on killing Canadians.
But in her report, Ramshaw suggested an alternative narrative. Esseghaier’s descent into religious extremism, she wrote, likely coincided with the onset of his mental illness. In fact, the two may have been inextricably linked.
That suggestion is significant, because it was in that period — when Esseghaier was becoming increasingly religious and disturbed — he first came to the Federal Bureau of Investigation’s notice.
In 2012, en route to a conference in California, an undercover agent posing as a wealthy Muslim American businessman sat next to him on a plane and gained his trust. The agent, who went by the name Tamer el-Noury, later recorded hours of conversations with Esseghaier and, eventually Jaser, and was the main witness in their trial.
Esseghaier’s mental health, though, never really came up in his pre-trial or trial period. From the start, he demanded the right to be tried under Qur’anic law, and when the judge refused, he effectively decided not to defend himself at all.
Ontario Superior Court Justice Michael Code appointed a lawyer, known as an amicus curiae, to advise Esseghaier and the court.
It wasn’t until after his conviction the issue of his mental health emerged, and even then it only came out in a roundabout way. The amicus, Toronto lawyer Russell Silverstein, asked Code to order a psychiatric evaluation to aid in the sentencing. Code reluctantly agreed and Ramshaw was dispatched. Her report, once delivered, threw the whole case into chaos.
Ramshaw effectively put the legal issue of fitness to stand trial on the table.
It’s a tricky point because, while she was technically only looking at Esseghaier’s fitness now, in the sentencing phase, her report opened the door, morally at least, if not legally, to much more.