Netflix: September 8, 2017, Rafay/Burns case: The Confession Tapes, True East

Adding to the astonishingly popular “Making A Murderer”, and to “Fight For Justice: David & Me”, Ray Klonsky and Marc Lamy’s documentary about David McCallum (which Netflix bought from Markham Street Films), Netflix has commissioned a series on wrongful convictions beginning with a segment on the Rafay/Burns case to appear next month. The segment is coming at a good time and should augment the investigative work now being done on the case. Kelly Loudenberg, the director, has done extensive interviews, especially with people not seen before in relation to Rafay/Burns. I think it will turn more than a few heads and make skeptics reconsider their views.

It comes out Sept. 8 and is called “The Confession Tapes” and the individual episode is called “True East”. It’s the only episode that is two parts and it is the first episode on this Netflix series.


Dan Satterberg, Prosecuting Attorney
516 Third Ave W400
Seattle, WA

Please urge him to take a second look at the case for whatever reasons you think.

Freeing David McCallum: The Last Miracle of Rubin “Hurricane” Carter

Freeing David Cover photo

Freeing David McCallum Press Release-4

This coming October, a new book with the above title will be released by Chicago Review Press (Lawrence Hill Division). This book is a behind-the-scenes look at overturning a wrongful conviction, specifically the 1985 convictions of David McCallum and the late Willie Stuckey of Brooklyn, New York. I am proud to be the author of this book but, like everything else in this remarkable case, the book is the result of the efforts of many people, not the least of whom is David himself. His letters and words provide much of the background and commentary.

The book also details the gathering together of the forces that made McCallum’s miraculous release possible. The notion of a legal miracle was conceived by the late Rubin “Hurricane” Carter who, borrowing from G.G. Gurdjieff, believed that the definition of a miracle is when “higher forces operate on a lower level”. There is no question in my mind that the successful conclusion of this case was miraculous in that sense; I think the book makes a good case in proving that thesis.

The initial launch of the book will take place on October 12th at Greenlight Bookstore in the Greenpoint section of Brooklyn, the same place where Carter launched “Eye of the Hurricane”. Other New York launches are planned for law schools in Manhattan, Long Island and New Jersey, and a library in Scarsdale. Professor Steve Drizin of the renowned Bluhm Legal Clinic is hosting a launch at Northwestern University and a bookstore in Chicago (57th Street Books). In Toronto, the launch will be held at A Different Booklist in its new digs on Bathurst Street. The Vancouver launch will be held at Post 750, next door to the CBC building. David will be accompanying me on this tour, no doubt the focus of attention, deservedly so.

Prison Wedding

Like the lotus blossom arising from the darkness of the swamp, Atif Rafay and Loretta Fisher tied the bonds of matrimony on January 14th, 2017 at Washington State Reformatory in Monroe, Washington. This wedding came against all odds, not the least of which is the flourishing of love inside an environment that destroys this most precious of all human experiences.

The ceremony was officiated by Amy Darling, a Buddhist minister, who managed to create, in one small section of the visiting room, a sacred space wherein the couple’s love transcended the bonds of prison. Their commitment to each other, their obvious love, transcended the bonds of incarceration. The irony is that the relationship between Atif Rafay and Loretta Fisher has greater intimacy and less distraction than most couples on the outside.

“Moonlight” and “Manchester By the Sea”, two films about American men

This is not a movie review but a societal look at two important films that premiered near the end of 2016. They are both Academy Award type films and they share the same subject. Barry Jenkins groundbreaking “Moonlight” is a portrait of manhood in a totally African American neighborhood of (perhaps ironically) Liberty City, Miami. Kenneth Lonergan’s “Manchester By the Sea is a portrait of manhood in the totally white community of Manchester, Massachusetts.

Perhaps against stereotype, the African Americans in “Moonlight”, male and female, have greater complexity of character and emotional range than the characters in the Lonergan film. This is not a critique of “Manchester By the Sea” but a recognition that, in general, white American males have extremely constricted emotional lives. Although some of the characters in both films exhibit macho behavior, Lonergan’s main character, Lee Chandler (played by the remarkable Casey Affleck) never gets beyond his limitations. He has experienced an awful trauma, carelessly and unwittingly causing the death of his children; he can never express his grief nor can he get beyond random acts of rage and violence, sucker punching innocent people in bars. Manchester is a close community which may explain why Chandler doesn’t wind up in jail for his erratic and dangerous behavior. You feel for the character, less for his tragic error and more for his emotional imprisonment.

Chandler’s brother’s will gives custody of his sixteen year old son to Lee, without Lee knowing in advance that this would be asked of him. Hence both brothers fail to communicate their needs directly. Later in the film, Chandler requests that a friend living in Manchester take custody of the son. Once again, the problem is that Lee Chandler, like his brother, doesn’t bother to ask his nephew if he’d be willing to be adopted by the family friend. Throughout the film, we hear him say “I don’t want to talk about it.” In a powerful moment, when he meets his former wife who is pushing a baby stroller through the street, it is clear that they still love each other but that it is impossible for him to communicate this to her.

Chandler’s choice to leave his nephew and the town of Manchester is understandable. He will always be known there as the man who let his children perish. It is even understandable that he doesn’t want to break up his nephew’s life by dragging him to Quincy where he works as a janitor. The weakness is in failing to confront the emotional damage. None of the male characters in the film have a solid sense of self. Sports, in the bars and at home, blare from the television in every season; it’s often the one thing that American men, especially fathers and sons, have in common. Is this an accurate generalization of American manhood? I would have to say yes.

The American legal system and now its political system function in much the same way. A strong vindictive urge, based on anger for imagined slights or frustration with the failures of the American Dream results in scapegoating. We see much of this reactionary behavior in Trump’s unfortunate election which was, in some ways, a racist rejection of the first black president. The displaced anger is also revealed in the draconian sentencing, especially as applied to African American defendants, in the courts. It is also seen on line, where cowardly trolls hide behind anonymity to smear and attack public figures. The free floating anger is selfish and dangerous; it shows the degree to which people resist dealing with their actual problems through avoidance strategies.

And why are police not convicted of capital crimes against African American people? Because the police represent the vindictiveness of the angry people who would do the same thing if they had the chance.

The male characters in “Moonlight”, (three of them, Chiron, the same character at different ages) do display a range of emotions. One of the most daring aspects of the film is the exploration of a gay relationship between the main character and a close friend. These relationships expose young black men to attacks of all kind. In fact, every character in the film is an African American, a daring choice in and of itself. What a way for Barry Jenkins to show the segregated reality of American life, the schools, the neighborhoods! The culprit is the racism that permeates life in the USA from Maine to Florida to Nebraska, to California, to New York to Louisiana and so on.

“Moonlight” does not sugar coat the lives of these men and boys yet it humanizes them. A drug dealer with a very big heart (Juan) and his partner (Teresa) invite Chiron into their lives and try to soften his landing when he needs to escape periodically from his drug addicted and abusive mother. The horror of it is that Chiron’s mother is a customer of Juan’s. Yet you don’t feel the necessity to condemn the pusher because his “trade” is part of the landscape, like the Fuller Brush Man of the 1950’s. Indeed, when Chrion becomes a young adult, he is sporting the gold teeth (the ‘fronts’) of the drug dealer and following in the footsteps of Juan, the man he most admires. The tragedy, I think, is contained within the restrictive nature of poor black lives in America–separate and unequal. Drug dealing is a respectable profession that leads to cars and comforts that these men can not otherwise achieve. Not usually, anyway, outside of athletics or entertainment.

All to explain some of the reasons why the prisons are filled with African Americans. This was not always the case in the northern part of the USA. As Rubin Carter used to say, the prisons were ‘equal opportunity’ places, and people were imprisoned in numbers roughly proportional to their numbers out in the free world. “They served pasta fazool on Mondays, Irish stew on Tuesdays, and so on.” It wasn’t until the drug trade became an endemic part of black life that the prisons filled up with African Americans. Blacks are not born criminals, of course, but their lives, segregated schools and neighborhoods, make the world appear as a prison. They are walled off from the rest of society. Neither conservatives nor liberals have ever been prepared or able to alter this reality. Not even Obama did much to change the fabric of the unjust society. And the election of Donald Trump will bring all of this oppression back to the front pages; we are in for an era (let’s pray it’s brief) of unmasked and officially condoned racism.


Why we believe in the innocence of Atif Rafay and Sebastian Burns: six reasons

Why we believe in the innocence of Atif Rafay and Sebastian Burns


REASON ONE: No hard or scientifically gathered evidence ties them to the crime.

A bludgeoning is an extremely bloody way to kill. It goes, almost without saying, that for one to bludgeon three different people to death and leave no trace of blood in the scalp or anywhere else on his face is unlikely. Showering would not be sufficient. They agreed to undergo forensic testing for five days without legal representation, because they thought their innocence would protect them. No one, neither prosecutors nor police, say they found hard evidence linking Burns and Rafay to the crime.

Lacking a solid case, they referred (and still do) to “a mountain of circumstantial evidence”, evidence that turns out to be negligible evidence, a molehill of evidence. Lacking a solid case, they turned to the RCMP:

REASON TWO: Their confessions to the RCMP mobsters took many months of heavy handed interviews to obtain. No juror was shown video evidence of Sebastian’s constant denials that he had anything to do with the crime, while the RCMP has disposed of almost the entire taped interrogation. What remains are the sessions that implicate Burns and Rafay.

The so-called confessions were manufactured from Sebastian Burns’s knowledge of the case gained in newspaper accounts available at the time.

REASON THREE: James Miyoshi, the chief witness against them, was threatened with being charged as an accessory, a crime punishable by life in prison, making his testimony less than reliable. What he said was always vague and sometimes even fanciful. Reliance upon such testimony is a sign of a faulty case, but they thought they needed it to seal the deal. In truth, Miyoshi tried to protect himself from prison while not betraying his friends. This proved to be an impossibility.

REASON FOUR: The RCMP never looked to any other suspects, despite being told by sources that a hit was being planned against a Pakistani family newly moved to Bellevue, WA. Nor were leads followed after the killings that may have implicated an extremist religious group, despite the Bellevue police having a factually reliable tip from a confirmed FBI informant. In that Sebastian and Atif were the only suspects investigated, the Burns/Rafay case may well be a classic example of ‘tunnel vision’.


  1. Atif and Sebastian loved the work of philosopher, Friedrich Nietzsche. The prosecutors equated Nietzsche’s work with Adolph Hitler, and utilized the very loose connection to indicate that Sebastian and Atif believed that they were superior beings, entitled to eliminate anyone who got in their way. That fact that Nietzsche was perhaps the most influential philosopher of the 19th and 20th centuries was lost on the jury. Hitler did admire the German philosopher but the philosopher never expressed a belief in genocide, nor did the defendants. (This is known as “guilt by association”)
  1. The actual motive given for the crime was greed. Atif would inherit money from his father’s estate that could be used to make a film. Does that sound like motivation to bludgeon a family to death, or did Atif and Sebastian create this motive to satisfy the RCMP gangsters who made them fear for their lives? Why would they choose to kill the Rafays? The Burns’s had more money by far and there was no death penalty in Canada.
  1. Burns appeared in a school play, “The Rope” where the eponymous murder weapon was changed into a baseball bat. This is a stark coincidence but hardly proof of murder since it presupposes that a killer would advertise his method beforehand.
  1. The crime scene was made to appear like a burglary had occurred. Somehow this was attributed to the two teens, as if other killers could not have thought of the same idea. Were the murders done by others seeking revenge against Tariq Rafay, they might also want to make the scene appear like a burglary.
  1. Sebastian Burns’s hair was found in the shower, mixed with the Rafay’s blood. This is the most quoted piece of evidence. Burns was living in that house for several days and using that shower. Do adolescents consistently clean up after themselves?
  1. Blood was found on the bottom of Atif’s pants. Atif and Sebastian entered the bloody crime scene and walked from room to room. Why wouldn’t the cuffs have blood on them? Why would blood be nowhere else?
  1. News reports then and since have referred to Atif and Sebastian fleeing to Canada to evade investigation. This is the most scurrilous of all the accusations against them. Sebastian lived in West Vancouver; Atif’s family had been annihilated. Where would they go but Canada since Atif was a citizen? The truth is that they were allowed to leave because there was no credible evidence against them. The RCMP sting (Mr. Big) was used against them to elicit confessions, but the use of the sting, according to current rulings by the Supreme Court of Canada, should not have been used in the absence of hard evidence. No such safeguards existed at that time.

So called evidence from the sting should not have been allowed into a US courtroom but the judge was prejudiced against the defendants. Mr. Big violates the Fifth Amendment right against self-incrimination and the Fourteenth Amendment against illegal search and seizure.

MIRANDA rights, i.e. the right to remain silent and to know that what you say may be used against you in a court of law; the right to have a lawyer present during questioning; the right to select questions you want to answer; were not accorded them. Why not? Because the evidence was gathered in Canada. To permit this evidence at trial was the result of a mistaken interpretation of the law and of Miranda protections

REASON SIX: The most significant evidence in the case pointed to their innocence and was explained away.

Fact: Atif and Sebastian were seen at a showing of The Lion King at the time of the murder—minutes before 10 p.m. Neighbours on both sides heard the thumps from the bludgeoning at 9:50 that night (twilight).

How can they have been in two places at once? How do you attack an airtight alibi? Somehow, it was averred, they left the theater by the side door and raced back to commit the murders. Even if this unlikely story was hatched under duress by Sebastian himself, it doesn’t make sense in the time context. So the prosecutor obfuscated the time by calling the neighbours’ recollections into question.

The case sounds familiar to others while, of course, the details differ. Behavior at the funeral, the insurance claim, blood spatter and so forth. The police and prosecutors are involved in constructing stories, and so are defense attorneys. The “winner” is she or he who invents the best story for the jury to believe. Truth has some role in this but not a major role.

What I mean here is that anything that fits the story (or the theory) is accepted. Any facts that go against the theory are explained away. 2 examples in Burns and Rafay. (“If the facts don’t fit the theory, change the facts.”)

1. A pubic hair was found in Tariq Rafay’s bed. The police were ecstatic because they were certain it belonged to Sebastian Burns. But it didn’t. Nor did it belong to any of the Rafays. So what did they do? The pubic hair became a “stray”. You know, people in Washington are shedding public hairs all over the state.

2. Atif and Sebastian were examined for blood spatter in their hair follicles. The underwear in the washing machine was analyzed for blood residue. Blood does not wash out easily. Just ask Lady Macbeth! So no blood was found anywhere on them. That means they were so exceptionally clever that they covered it all up. But not clever enough to keep their mouths shut to the gangster cops.

All of which is to say that crime is a template onto which all kinds of theories are hung. Many of these theories depend on self-deception. No one wants to be proved wrong, especially when the stakes are so high. Whenever we think “the Crown is on the ropes” someone comes up behind us and bops us over the head.

In light of what appears to us a manufactured case against Atif Rafay and Sebastian Burns, it is legitimate to doubt the result of the trial and the verdict of the appeal court.


Ken Thompson R.I.P. plus NY Times Editorial and NY Post

Never have I been so devastated by the loss of a political figure as in the untimely passing of Ken Thompson, Kings County District Attorney for only three years. It is through Thompson’s Conviction Review Unit (CRU) that David McCallum was released from prison on October 15th 2014. As all of us who were involved in David’s case from 2004-14 know, David would still be in prison were it not for Ken Thompson.

The story of David’s release began with Rubin Carter and ended with Ken Thompson. Both are now dead but their lives were certainly not lived in vain.

The suddenness of Thompson’s death reminds me of the brief period (the same three years) in office that ended when John F. Kennedy was assassinated. While the symbolic importance of a president far outshines the image of a district attorney, it may be fair to say that Thompson accomplished more on a local level than Kennedy was able to accomplish as president. In fact, Kennedy’s legend was enhanced by his death; his presidency short on accomplishments, like defusing the Cuban missile crisis, and perhaps more notable for misadventures like Vietnam and the Bay of Pigs invasion. Thompson’s CRU took off and functioned as it was meant to from day one. Many innocent people (twenty-one and counting) were released from prison. He established a principle we can only hope will be maintained in Brooklyn and copied throughout the USA: the truth is more important than the functioning of legal machinery. Thompson has a legacy but, still, he will be greatly missed and greatly mourned.

Among NY City and State officials, along with US legal VIP’s, David McCallum was the only exoneree invited to speak at the funeral. See the NY Post article below.

NY Times Editorial:

Police killings in Tulsa and Charlotte


The recent murders, extra-judicial killings, (or were they lynchings?) of two more African American men, Terence Crutcher of Tulsa, Oklahoma and Keith Scott of Charlotte, NC, points to a disturbing trend in law enforcement. Why are so many police ready to draw weapons and shoot to kill? It’s as if the American public (and there are many non-African Americans who are also killed) are citizens of an occupied country, suspected of malice toward the occupiers simply by the nature of the jobs they do. What is being missed here?

First, the omnipresence of guns means that any citizen in various states (North Carolina and Oklahoma being just two of them), is first suspected of carrying a firearm because he or she has a right to do so. Anything seen in the hand of a suspect is first assumed to be a gun. The police, many of whom are against the proliferation of firearms, don’t want to be the victims. When police are murdered the word goes around to precincts that a police officer must shoot before he himself is shot.

The second, and related, problem is our diminishing ability to use words. Guns speak louder. Police are blunt instruments, as was seen in the video recordings of both the Crutcher and Scott killings. They scream at suspects to get them to drop their weapons. What if they don’t have a weapon? What are they supposed to drop? The shootings themselves are not meant to disable but to kill, to kill without evidence, which is the same as lynching. When suspects represent no immediate threat to the police, the use of reason is preferable, but, more and more, reason, science, logic and empirical evidence is disregarded, replaced with fear, anger, pseudo-science, and bluster.

What has happened to the American public? Has reason failed? Have words failed? Has education failed? “Hands up, don’t shoot.” If people really thought about what Donald Trump represents, the country, like the police, is ever more becoming a blunt instrument. Racist language thrives in this fascistic environment. Kill or be killed. Deny humanity.

On CNN, a police spokesperson commented on the Crutcher killing. Anyone who looked at it saw the murder of a weaponless man posing no threat to the police. But don’t believe your eyes! The police spokesperson insisted that we needed to know the full context. That is how language can obscure. The female police officer involved was charged with first degree manslaughter but the ongoing conversation defies reason. Let me ask: if a police officer is murdered under any circumstances, how many people want or need to know the context? And we haven’t been a witness to that killing.

Final comment on the Scott killing: that gun and holster were legal to carry, even if they belonged to the victim. That gun and holster would have his prints on them. From what I could see, there is a possibility that one of the police placed the gun at his feet after the cellphone video cut off. What I will always remember is the police officer putting handcuffs on a dead man. What an image of a wrongful conviction!

RCMP Terrorist Plot

RCMP terrorist plot 

Matthew Behrens writes about the Nuttall and Korody case wherein the RCMP enticed two drifters into committing terrorist acts in order to burnish their own image. The same mechanisms used here are present in all Mr. Big sting operations: enticement and intimidation. Rather than a legal device, Mr. Big is nothing but a charade and so, I’m afraid, is the RCMP itself. A dangerous charade.

B.C. Court finds RCMP organized terrorist plot

| August 31, 2016

At the end of July, the Supreme Court of British Columbia found that agents of the Royal Canadian Mounted Police engaged in the planning of, preparation and funding for, and facilitation of a terrorist offence. By cruelly exploiting two impoverished, recovering heroin addicts with clearly obvious mental health challenges, the Mounties did what any state security agency does: when there are no terrorist plots to justify their existence, they simply create them. It’s great PR, because the Mounties — an organization built on human rights abuses within and without the outfit, from systemic misogyny to complicity in torture — always need some positive publicity, and when they can orchestrate an easy-peasy takedown of the hapless plotters they have set up, it’s a no-risk affair.

But thankfully, Judge Catherine Bruce is having none of it. In a decision that should be required reading for everyone in this country, she stayed the proceedings against John Nuttall and Amanda Korody, the alleged Canada Day pressure cooker plotters of 2013, when she concluded:

“[T]he world has enough terrorists. We do not need the police to create more out of marginalized people who have neither the capacity nor sufficient motivation to do it themselves…. The [police] were clearly overzealous and acted on the assumption that there were no limits to what was acceptable when investigating terrorism.”

While Bruce’s decision runs into the hundreds of pages, it is nonetheless an incredibly valuable primer on how the RCMP has always operated — without regard for the very laws it is supposed to enforce — and without a care for the human rights of those it targets. The decision reveals an organization that, despite numerous judicial inquiries recommending significant changes when it comes to state security investigations, remains wedded to the same old ways in which anything goes. Clearly, Canada’s iconic horsemen expect that they will be protected by a culture of impunity.

Indeed, none of the Mounties who coerced, browbeat and threatened Nuttall and Korody have been charged with an offence, even though they led the two hapless individuals to believe that they would be killed if they did not go along with the RCMP-led plot to plant pressure cookers on the lawn of the B.C. legislature.

Baseless foundation for investigation

From the very beginning, the Mounties’ “Operation Souvenir” operated on the same utterly baseless foundation that the Mounties have relied upon in other so-called national security cases (see for example, the cases of Abdullah Almalki, Ahmad El Maati, Muayyed Nureddin, Maher Arar, Abousfian Abdelrazik, Benamar Benatta, Omar Khadr, among numerous others). Things began with a “tip” from the notoriously incompetent Canadian Security Intelligence Service (CSIS) that Nuttall was a threat to public safety based on “unverified general concerns.” When a CSIS representative met with B.C. RCMP Superintendent Bond, he said Nuttall “might” be a recent Muslim convert wanting to recruit others to violence, but did not provide any sources for the contention. Without any evidence that Nuttall was involved in criminal activity, and proceeding on the assumption that Nuttall “posed no imminent threat,” the RCMP nevertheless commenced an investigation that rapidly evolved at National Headquarters into a major case, with the direction to Superintendent Bond that he “work hard on this file and treat it as a priority investigation.” Judge Bruce says it was apparent that Ottawa considered the investigation “urgent and a national priority.”

Souvenir was largely driven by a Sgt. Kalkat, whose manner the Judge found to be “both dictatorial and designed to eliminate dissenting views,” especially any opinions raising concerns about entrapment and illegal activities conducted by the Mounties. Kalkat was also someone who, like other Mountie-led state security disasters, equated Islam with national security threats. As Judge Bruce writes:

“When questioned why he believed there was a risk in light of the lack of recent evidence that Mr. Nuttall was expressing extremist beliefs, the sergeant testified that … Mr. Nuttall’s cellular telephone usage and blog were associated with the registered name of ‘Muhammad Muhammad.’ He also referred to Ms. Korody’s wearing of the hijab and her conversion to the Muslim faith. Apparently Sgt. Kalkat associated terrorism with adherence to the Islamic faith in general.”

Kalkat was called on the carpet by Judge Bruce for an incredible lack of credibility. “I found it astounding that he kept so few notes of meetings and conversations with his team about the project and yet purported to have a detailed recollection of the events favourable to the Crown’s position,” she found, echoing the findings of even the weak-kneed review committees of the RCMP and CSIS who have regularly documented similarly sloppy, lazy work. Significantly, neither the original operational plan for Souvenir nor an application for an extension “sought authorization to include undercover officers passing themselves off as part of a terrorist group.” Perhaps it was simply assumed that the Mounties could do as they pleased, because they never seem to be held to account when they do break the law.

Targets were isolated, vulnerable drug addicts

Nuttall and Korody were both were isolated, vulnerable individuals who relied on daily deliveries of methadone to help them with their heroin addiction. They rarely went out save for coffee and cigarettes or the odd round of paintball, preferring to stay home and play video games. Korody was often ill, constantly throwing up. While Nuttall was apparently known by some for spouting off what are labelled “extremist” views, especially with complete strangers, even Sgt. Kalkat agreed in court that “this is not the usual behaviour of a serious terrorist.”

But Kalkat and a group of undercover RCMP officers were determined that Nuttall’s “extremist” views meant he posed a threat to national security, and they committed enormous resources into encouraging Nuttall to compose a “feasible” terrorist plot for which they could then arrest him. Indeed, while the ultimate budget has not been released, the Mounties paid almost $1 million in overtime to some 200 officers on this pork-barrel project.

An objective observer would have concluded that Nuttall’s grandiose talk, while perhaps disturbing, was just that: talk. Nuttall believed that in addition to his capacity to spark a U.S. civil war, he could hold the world hostage by hijacking a nuclear submarine at Nanoose Bay simply by swimming up to it. He also bragged that he could hack into the Israeli government’s server while he discussed storming the Esquimalt military base with AK-47s, and building Qassam rockets to shoot towards the Parliament buildings in Victoria. But the Mounties wanted badly to take his word for it. Nuttall was the kind of perfect “low-hanging fruit” that the FBI regularly sets up and entraps to claim U.S. victories in the war against terror.

By February of 2013, the “Special O” group of the Mounties discontinued Project Souvenir surveillance. Judge Bruce found that “it is apparent that had there been any indication that Mr. Nuttall was an imminent threat, Special ‘O’ would not have been re-assigned elsewhere.” The project nevertheless remained a national priority for the RCMP’s E-INSET Division in Ottawa, based on, among other things, a CSIS “advisory letter” which alleged Nuttall had been attempting to purchase potassium nitrate from pharmacies, but again, no source was revealed for the tip, and no investigation was undertaken to determine whether Nuttall knew that potassium nitrate could possibly used in the production of explosives.

The RCMP never bothered to ascertain whether he was in fact purchasing the product on his meagre welfare cheque or doing anything beyond what the Mounties’ surveillance did report: that Nuttall was picking up prescriptions for his grandmother. No Mounties reviewed video surveillance of the Nuttall residence until very late in the game to confirm what was alleged by CSIS either, and at no time did the RCMP interview neighbours or associates, nor did they monitor the couple’s Internet use to determine if they were communicating with people alleged to be involved in terrorism (a post-arrest computer search confirmed no such communication had ever occurred). The Mounties also installed surveillance pole cameras outside the residence, but did not even keep them on 24 hours a day.

Cooking up a plot

The well-paid Souvenir team cooked up 28 different scenarios designed to entice Nuttall into coming up with a terrorist plot. But their introduction of an undercover officer (Officer A) who played the role of a well-connected, high-functioning terrorist and alleged Islamic spiritual adviser with major international connections did little to push Nuttall beyond his grandiose imaginings. All it did was make Nuttall and Korody feel like they finally had a true friend, and they relied on him for many things in their daily life. But endless efforts by Officer A to get Nuttall to write out a terrorist plan on a laptop proved fruitless; indeed, the only time Nuttall talked about extremist activities was in the presence of Officer A, who encouraged him to think about how to put his ideas into action.

Korody was never one to talk about such plans, but the Mounties insisted on bringing her into the mix as well, figuring that you need two people to fall under the definition of a terrorist group. Hence, Officer A insisted that Nuttall order Korody to attend meetings and RCMP-arranged reconnaissance missions even when Korody was way too ill to leave the house. As Judge Bruce found, “[t]he command team discussed ways of involving Ms. Korody in the scenarios, expressing the belief that ‘the only way to get charges [against her] is from her mouth,'” given that this recovering heroin addict would often say things that mirrored what Nuttall was talking about.

Concerns raised internally by some within the Mounties were generally dismissed, including the undercover team’s assertion that “Officer A had overly excited Mr. Nuttall about doing jihadist acts and was giving him the capacity to carry out terrorist acts for which he lacked the resources and contacts.” As early as March, 2013, Souvenir team members were expressing concerns about entrapment as well. But this did not stop Kalkat and team members from pressing Officer A to get Nuttall to stop talking his grand schemes and to focus instead on a simple plot like the placement of three pressure cooker bombs at the provincial legislature building for Canada Day. Indeed, the RCMP was committed to making it happen by that deadline, despite every effort by Nuttall to step away from the plans, despite his incessant callout for spiritual advice, and his persistent doubts that this was the right thing to do. Officer A prevented him from getting advice from an imam, preferring to refer him to the very “extremist” conclusions that are rife on the Internet.

The RCMP often expressed frustration at the slow pace of Souvenir. Simple things like downloading a map of Victoria proved impossible for Nuttall; he never thought to purchase a paper map. Judge Bruce concluded:

“[I]t was only the RCMP that was interested in a cheap, quick and easy means of carrying out violent jihad. Mr. Nuttall continued to express a desire to carry out several grandiose schemes that, even if possible, would take years to organize and far more resources and know-how than he or Ms. Korody possessed or could reasonably acquire.”

In May, Kalkat updated his superiors by reminding them Nuttall posed “no public safety concerns” and that Officer A had complete control of Nuttall, who would do nothing without the say-so of his “friend.” Officer A continued to provide Nuttall with incorrect interpretations of Islam (telling him, among other things, that the duty of every Muslim is to die a martyr).

As Officer A kept working on Nuttall to come up with a simple terrorist act, Nuttall continued to dream big, with plans to shut down Guantanamo Bay by, among other things, hijacking a VIA passenger train that no longer existed. As Judge Bruce notes in her decision, much of Nuttall’s understanding of the terrorist world came from watching Hollywood movies like Rambo III.

As the Mounties’ self-imposed Canada Day deadline loomed large, the undercover operatives:

“[d]iscussed creating a challenge scenario where Officer A would essentially take away Mr. Nuttall’s dream of being part of this jihadist organization if he did not focus on a real plan and show some dedication and initiative….[Superintendent Bond] agreed that the next scenarios were designed to focus Mr. Nuttall on a feasible plan even though he recognized the entrapment issues would be challenging to avoid if this occurred.”

One member of the team, Corporal Matheson, raised doubts, writing:

“The last thing we want to tell the target is that he needs to go away and come back with a real plan. There may come a time for that when we want to decisively challenge the target’s intentions. At this stage, however, the target may come back with another plan simply because we told him to. This would be coercion at best, and at worst it would be us making a terrorist out of someone who might not otherwise be.”

Planning a press barrage

As May headed into June, the Mounties were already preparing press conferences for the July 1 scenario, even though, as Judge Bruce points out, “Curiously, these discussions occurred prior to any concrete plan emerging from the undercover operation.” There was still no indication that Nuttall was prepared for, or about to engage in, a terrorist act beyond all of his big talk, with no potential for action absent the prodding and participation of the undercover team.

The RCMP, meantime, was seeking legal advice on how best to set Nuttall up to meet the requirements of terrorism charges. Kalkat asked for legal advice on whether the Mounties could simply establish a checklist to determine whether they would be able to meet all the elements of the offences. The answer from one legal adviser in Ottawa, as summarized by Judge Bruce, was “a checklist could not be provided and the undercover shop’s request for one demonstrated their lack of understanding regarding the complexity of the terrorism offences.” With respect to Nuttall’s partner, Korody, the legal adviser posited that the Mounties’ attempts to bring her into the mix, thereby creating a “terrorist group,” was “not a particularly compelling situation given the nature of their relationship. You require evidence to satisfy the statutory definition of terrorist group: one or more persons whose objective is to commit or facilitate a serious violent act, to intimidate the public, for a religious, political or ideological purpose.” At that point, the only group that satisfied the elements of the offence was composed entirely of RCMP officers.

While Nuttall continued to express serious doubts, especially with respect to the potential for killing innocent people, and requested spiritual advice, Officer A reassured him that he should just follow his heart. Their troubling relationship and the role of the RCMP is summed up by Judge Bruce:

“Officer A told Mr. Nuttall that if a good plan was formulated he would finance it and take care of all of the logistics. Effectively Officer A was counselling Mr. Nuttall to come up with a better terrorist plan. This promise of help did not seem to placate Mr. Nuttall who broke down in tears. Officer A consoled him and said that all would be fine and they would do it together ‘by baby steps one at a time.’ Mr. Nuttall responded that he needed direction from Officer A and he asked what he should be doing between now and the next time they met. Significantly, Mr. Nuttall said that he was not going to carry out any jihad until he had the spiritual guidance he was looking for in regard to whether killing was prohibited or permitted by the faith. In response, Officer A refocused Mr. Nuttall on working towards a jihadist plan and Mr. Nuttall became newly infused with enthusiasm about coming up with a good plan this time and wanted his hard drive back to begin working on it.”

Cult-like RCMP practices

While some within the RCMP felt this was going nowhere fast and should be shut down, others continued to press for a plan that Nuttall could embrace. Officer A engaged in cult-like practices, isolating Nuttall by preventing him from being with family and acquaintances and advising against attending the mosque. As Nuttall worried about killing people, he was equally concerned that Officer A, portraying the big terrorist whose organization has invested time, blood and money into this operation, would be displeased. And so he tried to meet Officer A in the middle with plots that sounded significant but would not shed blood. When he came up with scenarios like “symbolic” Qassam rockets without warheads that would cause minor property damage but little else, Officer A was not pleased. Instead of embracing a less lethal plan like this, Officer A of the RCMP:

“[r]eminded Nuttall about his earlier statement that killing all taxpayers was part of the plan…Mr. Nuttall agreed that soldiers were fair game but insisted the recon would help to ensure no innocents were harmed by the rockets; and he commented that everyone was a potential Muslim convert and this caused him to doubt his plans for jihad. In the end, he maintained a need for spiritual guidance from someone who was qualified to interpret the Quran on these issues.”

But Officer A continued to divert Nuttall away from any opportunity to receive the kind of advice that would have once and for all addressed his real concerns and, perhaps, stopped him from spouting the rhetoric that the Mounties found so problematic to begin with. Officer A continued to provide inaccurate religious justifications for violence, a particularly vile tactic that exploited vulnerable people who had given him complete trust. As the B.C. court decision found:

“The defendants were recent converts to the Muslim faith and constantly struggled with issues of what was permitted and what was prohibited by Allah and the Quran. On several occasions Mr. Nuttall had demonstrated indecision about whether it was prohibited to kill anyone even apart from innocents. He often said that the rockets could be symbolic only and not contain any warhead. Yet he was now being counselled towards violent extremism by the police.”

As this farce went on, the RCMP should have confirmed what Judge Bruce identified as:

“Mr. Nuttall’s ineptitude even for the simplest tasks and Ms. Korody’s detachment from what was going on. It should have been readily apparent to the RCMP that Mr. Nuttall was incapable of crafting a plan of action to support a terrorist plot…. it should have been apparent to the police that Mr. Nuttall had the gullible nature of a young child.”

But the Mounties wanted a big takedown and the gratitude of millions of Canadians for saving the day on a national holiday. They continued to set up further scenarios, including badly botched “reconnaissance” missions and shopping trips that were frustratingly bizarre. In addition, one Mountie’s report to the National HQ “mentioned the possibility of obtaining an authorization for the commission of offences such as participation in and facilitation of a terrorist activity,” something that the Mounties got free reign with in the subsequently passed, Trudeau-supported C-51.

Pressure for pressure cookers

The Mounties continued to pressure Nuttall into accepting a pressure cooker scenario, which he seemed to reject literally right up until the last minute, when he and Korody appear to have gone through with the placement of the devices (rendered inert by the undercover team that helped put them together!) because they feared they would be killed if they pulled out of the plot. Judge Bruce confirms that their fear, in the context of the relationship with Officer A and other members of the team portraying themselves as dangerous terrorists, was credible and real.

But the Mounties still had to gather some kind of evidence. They insisted Nuttall draw up a plan on his computer, which he never had the focus to do. They removed them from the “distractions” of their home to a hotel to focus on the plot. Every time Nuttall came up with obstacles to the plot, he was assured that all details would be handled by Officer A. They also continued to deflect from Nuttall’s doubts, with Judge Bruce writing that “Mr. Nuttall expressed concern about targeting women and children and both Officer C and Officer A assured him that they would take care of that problem.”

Meantime, memos from within continued to express doubts. Corporal Matheson wrote:

“Within the preceding few hours we learned that the targets had access to money and had chosen not to use it for bomb parts. Providing more money to get the targets past their reluctance to purchase bomb parts would not provide good evidence. Secondly, if we were to give the targets money for a fictitious purpose with the belief that the money would actually be used for bomb parts, we ourselves might be breaking the law in so far as we might be financing terrorism.”

While internal memos indicate Sgt. Kalkat knew the pair could now be arrested prior to July 1 based on suspicion they posed an imminent risk, they were not picked up. That would have taken away from the drama of planting the harmless devices under the RCMP’s watch, and certainly watered down the news angle that resulted in the banner headlines that recalled the Boston marathon bombing of earlier that spring.

Desperate to get the plot going

Desperate to get the plot going, the Mounties then proceeded to be part of what Judge Bruce describes as:

“[t]he most chaotic and disorganized shopping trip conceivable in spite of several specific directions passed on to the defendants about where to buy items on their list. Even though Mr. Nuttall’s shopping list consisted of a relatively small number of ordinary objects and supplies (batteries, pressure cookers, nails, an electric drill and a driver set), it is quite apparent that absent Officer A’s constant prodding and refocusing Mr. Nuttall could never have completed the job. Over and over he would forget what he needed and what he already had. Officer A was required to make pointed suggestions and give specific directions in regard to the shopping list to ensure that Mr. Nuttall moved forward with the required purchases. Mr. Nuttall was easily distracted and needed to be continually reminded about what had to be done. Ms. Korody was of very little assistance; for the most part she slept in the rear seat of the vehicle. At one point she left the vehicle to vomit….It also became apparent during the shopping trip, as well as during the private time the defendants spent alone at the Sundance Motel, that there were serious impediments to their carrying out this terrorist plan that were only resolved because of what the RCMP did for them.”

In another sign of the cruelty of targetting the extremely vulnerable and gullible Nuttall and Korody, Bruce notes Sgt. Kalkat:

“[g]ave no thought as to how the defendants’ dependence on methadone would impact their ability to think clearly about their actions. In my view, both Ms. Korody and Mr. Nuttall often appeared to be in a dazed state during the videotaped scenarios. Ms. Korody commonly slept through most of the meetings with Officer A. Their state of consciousness should have been a real and substantial concern during the undercover operation but it was ignored by the police.”

In essence, the Mounties devised a plan for which they choose the date, the means, the location and the logistics. There had been no pre-existing plot that needed to be infiltrated and stopped. But the state cannot be allowed to conduct such sting operations, and as the Supreme Court of Canada notes (in the landmark “Mr. Big sting operation” Hart decision that the Mounties clearly refuse to accept):

“The state must conduct its law enforcement operations in a manner that is consonant with the community’s underlying sense of fair play and decency. It cannot manipulate suspects’ lives without limit, turning their day-to-day existence into a piece of theatre in which they are unwitting participants. Such an approach does violence to the dignity of suspects and is incompatible with the proper administration of justice.”

Ultimately, Judge Bruce found:

“[t]he defendants had proven themselves to be marginalized, isolated people who espoused extremist jihadist views but were neither motivated to act on their beliefs nor capable of taking steps to accomplish acts of violence in support of their beliefs. Some of the officers involved in Project Souvenir appeared to hold this view of the defendants and advocated a different course of action than the one spearheaded by Sgt. Kalkat.”

Mounties counselled extremist views and violence

Judge Bruce was also appalled at the role the Mountie splayed as “spiritual advisers” to Nuttall, noting:

“The fact that Officer A chose to give religious advice at all is objectionable; however, preaching ideas that promoted the use of violence and allaying the defendants’ doubts about killing people makes his conduct far more sinister. When Mr. Nuttall said that he and Ms. Korody had serious doubts that killing people would please Allah, Officer A gave him the same spiritual advice about pre-determination that violent extremists use to radicalize people…. Knowing that Mr. Nuttall had serious doubts about carrying out a mission that could kill innocent people, Officer A told him that there was no time to obtain spiritual guidance.”

Like good capitalists who wanted the bang for their buck, she notes:

“The RCMP would not have been willing to abort their plan for the July 1 planting of the devices at the last minute after so much preparation had gone into getting the operation to this point and after many thousands of dollars had been invested in the project….There is no evidence that on their own or when they were alone Mr. Nuttall and Ms. Korody crafted plans to carry out jihadist plots. It was only when they were with Officer A and the other undercover officers that they talked about committing acts of violence for a terrorist purpose. For months during the undercover operation Mr. Nuttall did nothing but talk about jihadist plots and the police became very impatient and frustrated with his apparent inability to take any positive steps towards accomplishing anything.”

RCMP: Fraud, deceit, threats, exploitation

From the beginning, the RCMP engaged in deceit, fraud, implied threats in the absence of an ongoing criminal venture, exploited vulnerabilities and friendship, and engaged in clearly illegal conduct. Judge Bruce writes that:

“In my view, Sgt. Kalkat’s decision to push ahead with the operation despite the lack of motivation shown by the defendants, his concerted efforts to eliminate any dissenters from his team, and his desire to bring the project to a speedy conclusion without due regard for the criminal nature of the acts committed by the undercover officers, cannot be regarded as good faith… The RCMP’s preoccupation with motivating the defendants to commit an act of terrorism appears to have distracted them from more important considerations such as the legality of their actions. All of these circumstances render the illegal acts committed by the police more egregious and, in combination with the overall conduct of the police, an abuse of process. One must not forget that there was little risk to the public to justify illegal acts by the police. The RCMP did not act to break up a pre-existing plan to carry out a terrorist plot. There was no evidence that the defendants had taken steps to formulate a terrorist plot; were in communication with known terrorists or terrorist organizations; or possessed any expertise that would have been of value to a terrorist organization. The police were not infiltrating a sophisticated terrorist organization. The illegal acts committed by the police were not directed at the defendants or designed to frighten them into committing the offence. However, it is equally offensive for the police to commit illegal acts that enable an offence in circumstances where they knew the defendants could not have committed the offence absent police assistance.”

When the 2013 arrests occurred, RCMP Assistant Commissioner John Malizia crowed:

“These arrests are another example of the effectiveness of our integrated national security enforcement team, who worked tenaciously to prevent this plan from being carried out. We detected the threat early, and disrupted it.”

While this is a sickening, sad plot, Canadians may expect more of the same under the Trudeau government, which supports the very C-51 that legalizes such abominable behaviour. Indeed, the Trudeau government wasted no time in showing its support for the RCMP creating and organizing terror plots. It immediately appealed Judge Bruce’s decision, re-arresting Nuttall and Korody following their brief release from three years in custody, and placing them under a terrorism peace bond.

Meanwhile, the people who plotted the terrorist act are running Canada’s national police force.

Matthew Behrens is a freelance writer and social justice advocate who co-ordinates the Homes not Bombs non-violent direct action network. He has worked closely with the targets of Canadian and U.S. ‘national security’ profiling for many years.

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Mr. Big invalidated once again

The case of John Nuttall and Amanda Korody, a pair of would-be terrorists who were entrapped and enticed by a Mr. Big sting to plant a fake bomb at the BC legislature, points, once again, to the flawed methodology of Mr. Big itself. Some are calling this case a “one-off” because of the gullible nature of the defendants and the unlikelihood that they would ever have committed this ‘crime’ had they not been given the full means to do so by the RCMP. I must praise BC Supreme Court Justice Catherine Bruce for throwing out their conviction. However, I would question the assessment that this case is a one-off.

What is similar in all Mr. Big stings is the key to why it succeeds in getting confessions and in drawing people into criminal acts. It uses the threat of violence and implied violence: BOTH. In the case against Atif Rafay and Sebastian Burns, the pair were directly threatened by the fake mob boss with loss of life if they were to be arrested and taken into custody. The boss said he was afraid that, if taken into custody, they would give evidence against the gang itself. Hence they had to confess to Mr. Big to make the charges go away because Mr. Big would rather see them killed than to have the gang compromised. The RCMP itself has admitted to such threats in this case.

The two cases, while different in almost every aspect (one being an investigation, the other an inducement), nevertheless possess the same key to success. If a person fears for his or her life, they are liable to do things that will compromise them. Just look to the behavior of people in concentration camps who are/were coerced to kill others because their own lives were threatened. Fear of death is a great motivator.