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Terrorism and the Law: a Question of “Free Will”?

Photo by Kurt Raschke | CC BY 2.0

The War is not only being fought on the battlefields of Raqqa, Kabul and Chattisigargh; nor only in the classrooms, forests, and financial markets; it is also being fought in the courts. There has been a new development in one such trial, that of Chiheb Esseghaier, the “VIA Rail Bomber”, who was found guilty in March 2015 of a terror-related conspiracy. His plan was to place a bomb under the VIA Rail bridge, near Niagara Falls, connecting the U.S. and Canada.

This past week Esseghaier asked for an appeal of his life-sentence because, with the aid of medication and therapy, he now recognizes that his actions were symptomatic of mental illness.  At trial, Esseghaier had chosen to conduct his own defence and rejected psychiatric evidence that he suffered from schizophrenia.

“You are lying,” he told a psychiatrist on the stand. “If you say it’s a delusion, then the Qur’an is a delusion.”

Moreover, Justice Michael Code had expressed dissatisfaction with the psychiatric report of Dr. Ramshaw which found that Esseghaier was suffering from schizophrenia and therefore unfit for sentencing.  The judge said there was not “a scintilla of evidence” from the pretrial and trial record to suggest Esseghaier was unfit and ordered a second mental health assessment.

This was provided by Dr. Philip Klassen, a senior colleague of Dr. Ramshaw’s at the University of Toronto, who also serves as Vice-President of Medical Services at Ontario Shores Center for Mental Health Services. The following is an excerpt from an interview of Klassen, aired on CBC radio on August 1st, in which he is asked to explain the legal technicality on the basis of which it was determined that Esseghaier was fit for sentencing (the “limited cognitive test”, which requires mere awareness of the basic mechanics of what is going on at trial):

“Philip Klassen, you were brought in to testify after the judge said he found flaws. What happened?”

“ …The key issue I think really is that the bar is relatively low, and at times it’s somewhat concerning when people are, as Mr. Esseghaier was, in fact mentally ill and conducting their own defense”.

“Do you think the standard works or should the rules change?”

“ … if somebody has a major mental illness that drove the criminal behavior but, because of that illness lack insight into the fact that they have an illness and choose not to avail themselves of the remedies available, I think that’s a challenge … they go down a road that’s not really out of their own quote-unquote “free will””.

In criticizing the “low-bar” for fitness to stand trial, Klassen highlights the problematic assumption of “free will” behind it, so pervasive in the capitalist culture of high expectations, and which in this case doomed a schizophrenic to a life-sentence in jail.  It is noteworthy that in their web-page write-up of this news story, the CBC omitted the “quote-unquote” caveat attached by the psychiatrist to his use of the phrase “free will”.  This “slip” conveniently serves to reassure readers about their delusion that this “terrorist” chose to commit his crime, and therefore deserves his punishment.

And yet those who live with mental illness whether as patient, doctor or relative, and who have been exposed to the full power of the unconscious, are rightfully dubious about the extent of anyone’s “free will”.

This is obvious in the case of schizophrenic symptoms like those of Esseghaeir who was phobic about the number three because of its association with the Christian Trinity, and therefore could not sleep in jail because they offered him two sheets and one blanket (as a form of psychological torture?).

But even those who have been spared undue anxiety cannot deny that daily experiences, like the effectiveness of subliminal advertising and pervasive sadism in the media, are signs of relentless pressure from the “darker side” of the unconscious.

Yet, the myth of “free-will” is central to the functioning of our so-called “free market”, “free press”, and “democracy”; and, it is in the name of these highly imperfect institutions that Canada participates in bombing and torturing many others like Esseghaier.  His case is only one battle in this larger war.

This raises further questions about the extent of his “free will”. Consider the fact that during Esseghaier’s trial, the jury heard that he had been the victim of a “failed entrapment.”  An undercover FBI agent had gained the man’s trust by offering him free meals, and surreptitiously recorded their conversations, which made up the bulk of the evidence in the case.  But Judge Code blocked any media coverage — including barring the recording or broadcast of the agent’s voice or image — to protect the FBI agent, and in effect help to secure a guilty verdict.

Thus, not only is Esseghaier’s “free will” called into question by the influence of powerful and destructive inner forces, and by legal loopholes apparently designed to subvert attempts to mitigate the damage done by this inhumane principle; but the fact that he was a victim of shadowy plots organized by spies (aka FBI agents), who seem to operate outside of any international legal framework, also suggests that he was more “patsy” than demon.

Given the depth of his concerns, the question may also be raised as to whether Dr. Klassen, who holds a prominent corporate position in the world of psychiatry, may have been under unwanted pressure to help produce a politically palatable result in this case.

There is no doubt that Judge Code was under such pressures in light of his interventions to protect the FBI and to call for a second psychiatric opinion to ensure that this “terrorist” got the maximum sentence.

So much for medical or legal “objectivity”!

The final irony in this case is, however, that when it comes right down to it in this society, which boasts about its commitment to mental health, there is no sympathy or understanding at all.

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