Albany Times-Union : Terror suspect wants own trial

Terror suspect wants own trial

Albany pizza shop owner says case against imam hurts his chance with jurors

By BRENDAN LYONS, Staff writer | December 10, 2005

ALBANY -- A pizza shop owner who was ensnared in an FBI counterterrorism sting has requested a separate trial from his co-defendant, Yassin M. Aref, arguing that government allegations linking Aref to Middle Eastern terrorist figures would prejudice a jury.

In a 64-page motion filed late Friday in U.S. District Court, Mohammed M. Hossain, a Bangladesh immigrant who has lived in Albany for more than two decades, also asked a federal judge to dismiss the case against him, claiming he was coerced into taking part in a money laundering scheme by an overzealous informant for the FBI.

Hossain's attorney, Kevin Luibrand, declined comment on the motion. The motion is a two-pronged tactical move that is apparently intended to distance Hossain from Aref, whom federal authorities have admitted was the "ultimate target" of their lengthy sting operation.

"The severance motion is rarely granted and the fact is he's accused of conspiring with the other guy," said Donald T. Kinsella, a former federal prosecutor now in private practice in Albany. "If he's accused of conspiring with him, it's unlikely the court is going to make the government go through two trials with the same proof."

Aref, 35, is an Iraqi-born religious scholar who was hired as imam at the Masjid As Salam mosque on Central Avenue soon after he arrived in the United States six years ago. Aref and Hossain had been free on bond while their case is pending, but Aref's freedom was revoked by a federal judge on Sept. 30 when federal prosecutors filed a superseding indictment that contained allegations of Aref's past ties to terrorist organizations.

Aref's attorney, Terence L. Kindlon, has disputed the government's claims, calling them "artfully woven" and based on journal entries about people Aref met while he was a young, displaced Iraqi refugee living in the Middle East. Kindlon said Aref had met many people in his travels, including men who were connected to terrorism. But meeting them does not mean Aref supported what they were doing, Kindlon has said.

Meanwhile, Luibrand, in seeking to bolster his motion on the entrapment defense, has attacked the government's claim that Hossain was "predisposed" to become involved in a crime supporting terrorism. He said their assertion is based on the fact Hossain didn't report income he made from tips while delivering pizzas, and because he had tried to help his brother, who is mentally retarded, obtain a state identification card with the help of the FBI's informant.

Luibrand argues Hossain is heard on FBI tapes telling the informant he did not believe it was illegal to hide his tip income from the Internal Revenue Service because he did not declare deductions for the wear on his car. He also believed it was not illegal for his brother to obtain a non-driver identification card, according to the motion.

At one point, the informant can be heard telling Hossain that what they are doing to get his brother an ID is "not illegal." The informant's role in obtaining the ID was to serve as an interpreter for Hossain's brother, according to court records.

Still, it's clear in Luibrand's motion he is concerned about the regarding Aref's background, and he contends a jury could be poisoned if government prosecutors begin talking about "jihads" and "religious wars."

"The alleged 'bad acts' of defendant Aref all have alleged 'terrorist' messages in language and action, and will have an unavoidable 'spillover' effect upon defendant Hossain," the motion said.

In the wake of the 9/11 attacks, the FBI has reshaped its mission with a focus on counterterrorism. But many of their sting cases, usually involving enlisting Middle Eastern informants to penetrate mosques and other Muslim circles in search of people who might support terrorism, have been controversial.

The Albany-based sting began in July 2003 when the FBI sent an undercover informant, who is a Pakistani immigrant and Muslim, into Hossain's pizza shop with the intention of luring the men into a plot to make money from the sale of missile launchers to terrorists.

Aref was not approached by the informant. Rather, he was enlisted by Hossain to witness the transactions under Muslim tradition, according to court records.

Aref and Hossain were arrested Aug. 5, 2004, on a 19-count indictment charging them with money laundering in connection with a plot to sell grenade launchers to terrorists. The government has since added more charges, including allegations the men conspired to provide material support to a Pakistani terrorist group, although the support was in the form of taking part in the FBI sting. There was never any real terrorist plot.

No evidence connects Hossain to terrorism other than his alleged participation in the FBI sting, and Hossain remains free on $250,000 bond.

Federal prosecutors have targeted Aref's background in their criminal case, meticulously retracing his Middle East contacts, telephone records and personal journal writings.

The FBI claims entries in Aref's personal journals, seized 16 months ago during raids at his mosque and home, link him to Mullah Krekar, founder of Ansar al-Islam, a violent terrorist group that U.S. authorities contend has ties to al-Qaida and has been responsible for much of the attacks on coalition forces.

The journals also show Aref allegedly met in Syria with a top official with Hamas, another group designated a terrorist organization by the Department of State, according to the government.

If convicted on all counts, both face sentences of more than 400 years.

The New Yorker : Up in the Air

UP IN THE AIR
Issue of 2005-12-05
Posted 2005-11-28

Where is the Iraq war headed next?

Seymour M. Hersh | The New Yorker | November 28, 2005

In recent weeks, there has been widespread speculation that President George W. Bush, confronted by diminishing approval ratings and dissent within his own party, will begin pulling American troops out of Iraq next year. The Administration’s best-case scenario is that the parliamentary election scheduled for December 15th will produce a coalition government that will join the Administration in calling for withdrawal to begin in the spring. By then, the White House hopes, the new government will be capable of handling the insurgency. In a speech on November 19th, Bush repeated the latest Administration catchphrase: “As Iraqis stand up, we will stand down.” He added, “When our commanders on the ground tell me that Iraqi forces can defend their freedom, our troops will come home with the honor they have earned.” One sign of the political pressure on the Administration to prepare for withdrawal came last week, when Secretary of State Condoleezza Rice told Fox News that the current level of American troops would not have to be maintained “for very much longer,” because the Iraqis were getting better at fighting the insurgency.

A high-level Pentagon war planner told me, however, that he has seen scant indication that the President would authorize a significant pullout of American troops if he believed that it would impede the war against the insurgency.

There are several proposals currently under review by the White House and the Pentagon; the most ambitious calls for American combat forces to be reduced from a hundred and fifty-five thousand troops to fewer than eighty thousand by next fall, with all American forces officially designated “combat” to be pulled out of the area by the summer of 2008. In terms of implementation, the planner said, “the drawdown plans that I’m familiar with are condition-based, event-driven, and not in a specific time frame”—that is, they depend on the ability of a new Iraqi government to defeat the insurgency. (A Pentagon spokesman said that the Administration had not made any decisions and had “no plan to leave, only a plan to complete the mission.”)

A key element of the drawdown plans, not mentioned in the President’s public statements, is that the departing American troops will be replaced by American airpower. Quick, deadly strikes by U.S. warplanes are seen as a way to improve dramatically the combat capability of even the weakest Iraqi combat units. The danger, military experts have told me, is that, while the number of American casualties would decrease as ground troops are withdrawn, the over-all level of violence and the number of Iraqi fatalities would increase unless there are stringent controls over who bombs what.

“We’re not planning to diminish the war,” Patrick Clawson, the deputy director of the Washington Institute for Near East Policy, told me. Clawson’s views often mirror the thinking of the men and women around Vice-President Dick Cheney and Defense Secretary Donald Rumsfeld. “We just want to change the mix of the forces doing the fighting—Iraqi infantry with American support and greater use of airpower. The rule now is to commit Iraqi forces into combat only in places where they are sure to win. The pace of commitment, and withdrawal, depends on their success in the battlefield.”

He continued, “We want to draw down our forces, but the President is prepared to tough this one out. There is a very deep feeling on his part that the issue of Iraq was settled by the American people at the polling places in 2004.” The war against the insurgency “may end up being a nasty and murderous civil war in Iraq, but we and our allies would still win,” he said. “As long as the Kurds and the Shiites stay on our side, we’re set to go. There’s no sense that the world is caving in. We’re in the middle of a seven-year slog in Iraq, and eighty per cent of the Iraqis are receptive to our message.”

One Pentagon adviser told me, “There are always contingency plans, but why withdraw and take a chance? I don’t think the President will go for it”—until the insurgency is broken. “He’s not going to back off. This is bigger than domestic politics.”

Current and former military and intelligence officials have told me that the President remains convinced that it is his personal mission to bring democracy to Iraq, and that he is impervious to political pressure, even from fellow Republicans. They also say that he disparages any information that conflicts with his view of how the war is proceeding.

Bush’s closest advisers have long been aware of the religious nature of his policy commitments. In recent interviews, one former senior official, who served in Bush’s first term, spoke extensively about the connection between the President’s religious faith and his view of the war in Iraq. After the September 11, 2001, terrorist attacks, the former official said, he was told that Bush felt that “God put me here” to deal with the war on terror. The President’s belief was fortified by the Republican sweep in the 2002 congressional elections; Bush saw the victory as a purposeful message from God that “he’s the man,” the former official said. Publicly, Bush depicted his reëlection as a referendum on the war; privately, he spoke of it as another manifestation of divine purpose.

The former senior official said that after the election he made a lengthy inspection visit to Iraq and reported his findings to Bush in the White House: “I said to the President, ‘We’re not winning the war.’ And he asked, ‘Are we losing?’ I said, ‘Not yet.’ ” The President, he said, “appeared displeased” with that answer.
“I tried to tell him,” the former senior official said. “And he couldn’t hear it.”

There are grave concerns within the military about the capability of the U.S. Army to sustain two or three more years of combat in Iraq. Michael O’Hanlon, a specialist on military issues at the Brookings Institution, told me, “The people in the institutional Army feel they don’t have the luxury of deciding troop levels, or even participating in the debate. They’re planning on staying the course until 2009. I can’t believe the Army thinks that it will happen, because there’s no sustained drive to increase the size of the regular Army.” O’Hanlon noted that “if the President decides to stay the present course in Iraq some troops would be compelled to serve fourth and fifth tours of combat by 2007 and 2008, which could have serious consequences for morale and competency levels.”

Many of the military’s most senior generals are deeply frustrated, but they say nothing in public, because they don’t want to jeopardize their careers. The Administration has “so terrified the generals that they know they won’t go public,” a former defense official said. A retired senior C.I.A. officer with knowledge of Iraq told me that one of his colleagues recently participated in a congressional tour there. The legislators were repeatedly told, in meetings with enlisted men, junior officers, and generals that “things were fucked up.” But in a subsequent teleconference with Rumsfeld, he said, the generals kept those criticisms to themselves.

One person with whom the Pentagon’s top commanders have shared their private views for decades is Representative John Murtha, of Pennsylvania, the senior Democrat on the House Defense Appropriations Subcommittee. The President and his key aides were enraged when, on November 17th, Murtha gave a speech in the House calling for a withdrawal of troops within six months. The speech was filled with devastating information. For example, Murtha reported that the number of attacks in Iraq has increased from a hundred and fifty a week to more than seven hundred a week in the past year. He said that an estimated fifty thousand American soldiers will suffer “from what I call battle fatigue” in the war, and he said that the Americans were seen as “the common enemy” in Iraq. He also took issue with one of the White House’s claims—that foreign fighters were playing the major role in the insurgency. Murtha said that American soldiers “haven’t captured any in this latest activity”—the continuing battle in western Anbar province, near the border with Syria. “So this idea that they’re coming in from outside, we still think there’s only seven per cent.”

Murtha’s call for a speedy American pullout only seemed to strengthen the White House’s resolve. Administration officials “are beyond angry at him, because he is a serious threat to their policy—both on substance and politically,” the former defense official said. Speaking at the Osan Air Force base, in South Korea, two days after Murtha’s speech, Bush said, “The terrorists regard Iraq as the central front in their war against humanity. . . . If they’re not stopped, the terrorists will be able to advance their agenda to develop weapons of mass destruction, to destroy Israel, to intimidate Europe, and to break our will and blackmail our government into isolation. I’m going to make you this commitment: this is not going to happen on my watch.”

“The President is more determined than ever to stay the course,” the former defense official said. “He doesn’t feel any pain. Bush is a believer in the adage ‘People may suffer and die, but the Church advances.’ ” He said that the President had become more detached, leaving more issues to Karl Rove and Vice-President Cheney. “They keep him in the gray world of religious idealism, where he wants to be anyway,” the former defense official said. Bush’s public appearances, for example, are generally scheduled in front of friendly audiences, most often at military bases. Four decades ago, President Lyndon Johnson, who was also confronted with an increasingly unpopular war, was limited to similar public forums. “Johnson knew he was a prisoner in the White House,” the former official said, “but Bush has no idea.”

Within the military, the prospect of using airpower as a substitute for American troops on the ground has caused great unease. For one thing, Air Force commanders, in particular, have deep-seated objections to the possibility that Iraqis eventually will be responsible for target selection. “Will the Iraqis call in air strikes in order to snuff rivals, or other warlords, or to snuff members of your own sect and blame someone else?" another senior military planner now on assignment in the Pentagon asked. “Will some Iraqis be targeting on behalf of Al Qaeda, or the insurgency, or the Iranians?

“It’s a serious business,” retired Air Force General Charles Horner, who was in charge of allied bombing during the 1991 Gulf War, said. “The Air Force has always had concerns about people ordering air strikes who are not Air Force forward air controllers. We need people on active duty to think it out, and they will. There has to be training to be sure that somebody is not trying to get even with somebody else.” (Asked for a comment, the Pentagon spokesman said there were plans in place for such training. He also noted that Iraq had no offensive airpower of its own, and thus would have to rely on the United States for some time.)

The American air war inside Iraq today is perhaps the most significant—and underreported—aspect of the fight against the insurgency. The military authorities in Baghdad and Washington do not provide the press with a daily accounting of missions that Air Force, Navy, and Marine units fly or of the tonnage they drop, as was routinely done during the Vietnam War. One insight into the scope of the bombing in Iraq was supplied by the Marine Corps during the height of the siege of Falluja in the fall of 2004. “With a massive Marine air and ground offensive under way,” a Marine press release said, “Marine close air support continues to put high-tech steel on target. . . . Flying missions day and night for weeks, the fixed wing aircraft of the 3rd Marine Aircraft Wing are ensuring battlefield success on the front line.” Since the beginning of the war, the press release said, the 3rd Marine Aircraft Wing alone had dropped more than five hundred thousand tons of ordnance. “This number is likely to be much higher by the end of operations,” Major Mike Sexton said. In the battle for the city, more than seven hundred Americans were killed or wounded; U.S. officials did not release estimates of civilian dead, but press reports at the time told of women and children killed in the bombardments.

In recent months, the tempo of American bombing seems to have increased. Most of the targets appear to be in the hostile, predominantly Sunni provinces that surround Baghdad and along the Syrian border. As yet, neither Congress nor the public has engaged in a significant discussion or debate about the air war.

The insurgency operates mainly in crowded urban areas, and Air Force warplanes rely on sophisticated, laser-guided bombs to avoid civilian casualties. These bombs home in on targets that must be “painted,” or illuminated, by laser beams directed by ground units. “The pilot doesn’t identify the target as seen in the pre-brief”—the instructions provided before takeoff—a former high-level intelligence official told me. “The guy with the laser is the targeteer. Not the pilot. Often you get a ‘hot-read’ ”—from a military unit on the ground—“and you drop your bombs with no communication with the guys on the ground. You don’t want to break radio silence. The people on the ground are calling in targets that the pilots can’t verify.” He added, “And we’re going to turn this process over to the Iraqis?”

The second senior military planner told me that there are essentially two types of targeting now being used in Iraq: a deliberate site-selection process that works out of air-operations centers in the region, and “adaptive targeting”—supportive bombing by prepositioned or loitering warplanes that are suddenly alerted to firefights or targets of opportunity by military units on the ground. “The bulk of what we do today is adaptive,” the officer said, “and it’s divorced from any operational air planning. Airpower can be used as a tool of internal political coercion, and my attitude is that I can’t imagine that we will give that power to the Iraqis.”

This military planner added that even today, with Americans doing the targeting, “there is no sense of an air campaign, or a strategic vision. We are just whacking targets—it’s a reversion to the Stone Age. There’s no operational art. That’s what happens when you give targeting to the Army—they hit what the local commander wants to hit.”

One senior Pentagon consultant I spoke to said he was optimistic that “American air will immediately make the Iraqi Army that much better.” But he acknowledged that he, too, had concerns about Iraqi targeting. “We have the most expensive eyes in the sky right now,” the consultant said. “But a lot of Iraqis want to settle old scores. Who is going to have authority to call in air strikes? There’s got to be a behavior-based rule.”

General John Jumper, who retired last month after serving four years as the Air Force chief of staff, was “in favor of certification of those Iraqis who will be allowed to call in strikes,” the Pentagon consultant told me. “I don’t know if it will be approved. The regular Army generals were resisting it to the last breath, despite the fact that they would benefit the most from it.”

A Pentagon consultant with close ties to the officials in the Vice-President’s office and the Pentagon who advocated the war said that the Iraqi penchant for targeting tribal and personal enemies with artillery and mortar fire had created “impatience and resentment” inside the military. He believed that the Air Force’s problems with Iraqi targeting might be addressed by the formation of U.S.-Iraqi transition teams, whose American members would be drawn largely from Special Forces troops. This consultant said that there were plans to integrate between two hundred and three hundred Special Forces members into Iraqi units, which was seen as a compromise aimed at meeting the Air Force’s demand to vet Iraqis who were involved in targeting. But in practice, the consultant added, it meant that “the Special Ops people will soon allow Iraqis to begin calling in the targets.”

Robert Pape, a political-science professor at the University of Chicago, who has written widely on American airpower, and who taught for three years at the Air Force’s School of Advanced Airpower Studies, in Alabama, predicted that the air war “will get very ugly” if targeting is turned over to the Iraqis. This would be especially true, he said, if the Iraqis continued to operate as the U.S. Army and Marines have done—plowing through Sunni strongholds on search-and-destroy missions. “If we encourage the Iraqis to clear and hold their own areas, and use airpower to stop the insurgents from penetrating the cleared areas, it could be useful,” Pape said. “The risk is that we will encourage the Iraqis to do search-and-destroy, and they would be less judicious about using airpower—and the violence would go up. More civilians will be killed, which means more insurgents will be created.”

Even American bombing on behalf of an improved, well-trained Iraqi Army would not necessarily be any more successful against the insurgency. “It’s not going to work,” said Andrew Brookes, the former director of airpower studies at the Royal Air Force’s advanced staff college, who is now at the International Institute for Strategic Studies, in London. “Can you put a lid on the insurgency with bombing?” Brookes said. “No. You can concentrate in one area, but the guys will spring up in another town.” The inevitable reliance on Iraqi ground troops’ targeting would also create conflicts. “I don’t see your guys dancing to the tune of someone else,” Brookes said. He added that he and many other experts “don’t believe that airpower is a solution to the problems inside Iraq at all. Replacing boots on the ground with airpower didn’t work in Vietnam, did it?”

The Air Force’s worries have been subordinated, so far, to the political needs of the White House. The Administration’s immediate political goal after the December elections is to show that the day-to-day conduct of the war can be turned over to the newly trained and equipped Iraqi military. It has already planned heavily scripted change-of-command ceremonies, complete with the lowering of American flags at bases and the raising of Iraqi ones.

Some officials in the State Department, the C.I.A., and British Prime Minister Tony Blair’s government have settled on their candidate of choice for the December elections—Iyad Allawi, the secular Shiite who served until this spring as Iraq’s interim Prime Minister. They believe that Allawi can gather enough votes in the election to emerge, after a round of political bargaining, as Prime Minister. A former senior British adviser told me that Blair was convinced that Allawi “is the best hope.” The fear is that a government dominated by religious Shiites, many of whom are close to Iran, would give Iran greater political and military influence inside Iraq. Allawi could counter Iran’s influence; also, he would be far more supportive and coöperative if the Bush Administration began a drawdown of American combat forces in the coming year.

Blair has assigned a small team of operatives to provide political help to Allawi, the former adviser told me. He also said that there was talk late this fall, with American concurrence, of urging Ahmad Chalabi, a secular Shiite, to join forces in a coalition with Allawi during the post-election negotiations to form a government. Chalabi, who is notorious for his role in promoting flawed intelligence on weapons of mass destruction before the war, is now a deputy Prime Minister. He and Allawi were bitter rivals while in exile.

A senior United Nations diplomat told me that he was puzzled by the high American and British hopes for Allawi. “I know a lot of people want Allawi, but I think he’s been a terrific disappointment,” the diplomat said. “He doesn’t seem to be building a strong alliance, and at the moment it doesn’t look like he will do very well in the election.”
The second Pentagon consultant told me, “If Allawi becomes Prime Minister, we can say, ‘There’s a moderate, urban, educated leader now in power who does not want to deprive women of their rights.’ He would ask us to leave, but he would allow us to keep Special Forces operations inside Iraq—to keep an American presence the right way. Mission accomplished. A coup for Bush.”

A former high-level intelligence official cautioned that it was probably “too late” for any American withdrawal plan to work without further bloodshed. The constitution approved by Iraqi voters in October “will be interpreted by the Kurds and the Shiites to proceed with their plans for autonomy,” he said. “The Sunnis will continue to believe that if they can get rid of the Americans they can still win. And there still is no credible way to establish security for American troops.”

The fear is that a precipitous U.S. withdrawal would inevitably trigger a Sunni-Shiite civil war. In many areas, that war has, in a sense, already begun, and the United States military is being drawn into the sectarian violence. An American Army officer who took part in the assault on Tal Afar, in the north of Iraq, earlier this fall, said that an American infantry brigade was placed in the position of providing a cordon of security around the besieged city for Iraqi forces, most of them Shiites, who were “rounding up any Sunnis on the basis of whatever a Shiite said to them.” The officer went on, “They were killing Sunnis on behalf of the Shiites,” with the active participation of a militia unit led by a retired American Special Forces soldier. “People like me have gotten so downhearted,” the officer added.

Meanwhile, as the debate over troop reductions continues, the covert war in Iraq has expanded in recent months to Syria. A composite American Special Forces team, known as an S.M.U., for “special-mission unit,” has been ordered, under stringent cover, to target suspected supporters of the Iraqi insurgency across the border. (The Pentagon had no comment.) “It’s a powder keg,” the Pentagon consultant said of the tactic. “But, if we hit an insurgent network in Iraq without hitting the guys in Syria who are part of it, the guys in Syria would get away. When you’re fighting an insurgency, you have to strike everywhere—and at once.”

Aljazeera : Ahmadinejad: Wipe Israel off map

Ahmadinejad: Wipe Israel off map

Wednesday 26 October 2005

Iranian President Mahmoud Ahmadinejad has openly called for Israel to be wiped off the map.

"The establishment of the Zionist regime was a move by the world oppressor against the Islamic world," the president told a conference in Tehran on Wednesday, entitled The World without Zionism.

"The skirmishes in the occupied land are part of a war of destiny. The outcome of hundreds of years of war will be defined in Palestinian land," he said.

"As the Imam said, Israel must be wiped off the map," said Ahmadinejad, referring to Iran's revolutionary leader Ayat Allah Khomeini.

His comments were the first time in years that such a high-ranking Iranian official has called for Israel's eradication, even though such slogans are still regularly used at government rallies.

Call for unity

Addressing about 4000 students gathered in an Interior Ministry conference hall, Ahmadinejad also called for Palestinian unity, resistance and a point "where the annihilation of the Zionist regime will come".

"The Islamic umma (community) will not allow its historic enemy to live in its heartland," he said in the fiery speech that centred on a "historic war between the oppressor and the world of Islam".

The term "oppressor" is used by the clerical government to refer to the United States.

"We should not settle for a piece of land," he said of Israel's pullout from the Gaza Strip.

"Anyone who signs a treaty which recognises the entity of Israel means he has signed the surrender of the Muslim world," Ahmadinejad said.

"Any leaders in the Islamic umma who recognise Israel face the wrath of their own people."

Major change

Ahmadinejad, a veteran of Iran's hardline Revolutionary Guards, took office in August after scoring a landslide win in a June presidential election.

His tone represents a major change from that of former president Mohammad Khatami, whose favoured topic was "dialogue among civilisations" and who led an effort to improve Iran's relations with the West.

But Ahmadinejad instead spoke of a "historic war".

"It dates backs hundreds of years. Sometimes Islam has advanced. Sometimes nobody was winning. Unfortunately over the past 300 years, the world of Islam has been in retreat," he lamented.

"The skirmishes in the occupied land are part of a war of destiny. The outcome of hundreds of years of war will be defined in Palestinian land"

"One hundred years ago the last trench of Islam fell, when the oppressors went towards the creation the Zionist regime. It is using it as a fort to spread its aims in the heart of the Islamic world."

In September, Bahrain announced it was ending a decades-old law banning trade ties with Israel. Earlier this month, Qatar said it was donating US$6 million to help build a soccer stadium for a mixed Arab-Jewish team, the first such financial assistance by an Arab state for any town inside Israel.

Unprecedented steps

The modest but unprecedented steps were seen as a response to Israel's withdrawal from the Gaza Strip in September. Nevertheless, Ahmadinejad said, "There is no doubt that the new wave (of attacks) in Palestine will soon wipe off this disgraceful blot (Israel) from the face of the Islamic world."

"Ahmadinejad has clearly declared the doctrine of his government. He is returning Iran to the revolutionary goals it was pursuing in the 1980s," said Mohammad Sadeq Hosseini, an expert on Middle Eastern affairs.

"By these comments, Ahmadinejad is committing himself to those goals. He is also sending the message that his government won't back down."

Israeli response

Israeli Foreign Ministry spokesman Mark Regev issued a vague response. "Today, Israelis heard two extremists speak openly about destroying the Jewish state. One was the new president of Iran, and the other was the leader of Hamas, Mahmoud Zahar.

"And it appears the problem with these extremists is that they followed through on their violent declarations with violent actions."

The United States said Ahmadinejad's remarks proved the accuracy of Washington's fears about Iran's contentious nuclear programme.

"I think it reconfirms what we have been saying about the regime in Iran. It underscores the concerns we have about Iran's nuclear intentions," White House press secretary Scott McClellan said.

Ebrahim Yazdi, a former Iranian foreign minister, said Ahmadinejad's remarks harmed Iran.

"Such comments provoke the international community against us. It's not to Iran's interests at all. It's harmful to Iran to make such a statement," he said.

He said the comments gave Israel justification for urging the world to take a tougher stand against Iran and refer its nuclear programme to the UN Security Council for possible sanctions.

Times Online : In full: Lord Carlile report on Terrorism Bill

In full: Lord Carlile report on Terrorism Bill

October 12, 2005

PROPOSALS BY HER MAJESTY’S GOVERNMENT FOR CHANGES TO THE LAWS AGAINST TERRORISM

REPORT BY THE INDEPENDENT REVIEWER LORD CARLILE OF BERRIEW Q.C.

BACKGROUND TO THIS REPORT

1. Pursuant to the Prevention of Terrorism Act 2005 section 14 I am required to prepare periodic reports on the operation of the Act. By section 14(5) my report "must contain" my opinion on

"(a) the implications for the operation of this Act of any proposal made by the Secretary of State for the amendment of the law relating to terrorism;"

2. In the normal course of events, in early 2006 I should have prepared a single report as independent reviewer. This would have been published in the same way as my other reports, on the Terrorism Act 2000 as amended. They are printed and available through the Houses of Parliament, and also on the internet via www.homeoffice.gov.uk.

3. The terrorist bombings in London of the 7th July 2005 brought a new if not unexpected element to the terrorist threat from those perceived to be connected with Al Qaeda. This was the use of suicide bombers to kill members of the public in places of mass aggregation. The London underground train system was the kind of target one feared, though chillingly there were and are no grounds for believing that any other equally accessible place might not be targeted in the same way.

4. The events of the 21st July 2005 provided further evidence of the preparedness of some young males to act as suicide bombers. Nobody now can doubt the reality of the threat.

5. The death of a member of the public shot by the police after apparently being mistaken for a terrorist is the subject of inquiry at the present time. It would not be right for me to make any comment on the merits of what was a tragedy for all concerned. I observe merely that it demonstrates the unintended consequences of terrorist crime and of the changed perceptions and alerts that may ensue. The point of mentioning this is that it provides evidence of the paramount need for effective counter-terrorism legislation that can increase the potential for preventing terrorist plots being brought to fruition well before they would otherwise occur.

6. The London occurrences of July 2005 rightly and inevitably catalysed an earlier examination of potential additional legislation than had been envisaged at the time of the enactment of the Prevention of Terrorism Act 2005. The government indicated its intention to legislate very early in the resumed Parliamentary session commencing on the 10th October 2005. Consultation followed between the Home Secretary and the shadow spokespersons of the main Opposition

parties.

7. There has been a full public debate in the media on the possible changes that might be made to the law. Much of this was of the megaphone variety between politicians in the highest offices, not always as calm as one would wish ideally for so important a subject. However, public debate is a good thing especially in relation to laws potentially affecting on the one hand the liberties of the subject, and on the other seeking to protect the lives of the majority from the horrific prospect of being blown apart whilst going about their everyday lawful business. There can be no doubt that the public as well as politicians are now better informed about the issues and possibilities surrounding tougher counter-terrorism legislation.

8. I have been consulted by senior officials in the Home Office concerning my own thoughts and suggestions for amendment of the law. Such contributions as I have made to the process have been taken into account as part of the wide process of consultation.

9. Given that new legislation has now been drafted and is intended to be in force before the routine publication of my first report under section 14, it would have been absurd for me to wait until early next year to prepare my report on government proposals. Therefore, having received the draft Terrorism Bill 2005, I have decided to prepare this short additional report to be published prior to the Parliamentary debates on that Bill. I hope that it will assist in informing the debate. I may have strayed somewhat beyond the tightest interpretation of my role under section 14(5), but if so that is inevitable in preparing a report of this kind.

THE TERRORIST CONTEXT

10. There are several significant pieces of legislation in existence with the potential to counter terrorism. The ordinary law has a wide selection of offences that can be used in convicting terrorist criminals – ranging from Murder to quite small but persistent credit card fraud used to fund terrorist organisations. I have heard the view expressed by some with profound knowledge of the criminal justice system that there is no need for terrorism specific legislation. That view has been far less in evidence since the 7th July 2005, and I disagree with it.

11. In my role as independent reviewer I have been able to see closed material, including some product of criminal intelligence obtained from technical and human sources of various kinds. In my view the Joint Terrorism Analysis Centre (JTAC) has continued to play a significant role in the assessment of the available material. That the 7th July events clearly involved British nationals, born and/or resident in the UK, as the suicide bombers was a feared and worrying development. Its effect is to render the finding of terrorist cells far more difficult, since they are less likely than foreign nationals with a discernible intelligence profile to leave and enter the country in circumstances likely to attract attention. There is a huge amount of work being done by the police and the security services, at home and abroad, to try to identify links and allegiances likely to lead to the easier identification of potential British terrorists.

12. However, it is a well-known pattern of experienced terrorist organisations to use "clean skins", i.e. terrorists who have not committed serious crime before and are therefore less likely to attract the attention of the authorities. Nobody should be in any doubt of the difficulty this causes in detecting likely terrorists.

13. It would be utterly illogical to imagine that the events of July mean that it is now less likely that terrorist outrages will continue. I give the warning that they will continue, albeit perhaps with an interval of time greater than might otherwise have been the case had the events of the 21st July been deadly.

14. It is clear beyond doubt that elements connected with Al Qaeda and its loose co-fraternity of sympathisers contain persons in the UK with the skills to make small explosive devices capable of causing devastation. It is equally clear that there are still young men prepared to rationalise their own criminal acts in terms of death and glory. In an article in the Financial Times of the 29th July 2005 David Gardner referred to this phenomenon as "The politics of wounded identity", and referred to

" .. the ways in which Islamist extremists are able to manipulate the question of identity and make it synonymous with religion, or rather, a religion they portray as everywhere under infidel assault."

15. It is that very manipulation that calls for a response by the introduction of laws that justly balance the important and even fundamental civil liberties of the suspected terrorist, and the innocent public. Laws which have the effect of wounding identity further are unlikely to do more than exacerbate the situation. Laws with the effect of bringing together in a fair way the proper and constitutional will of the majority of the public have some prospect of persuading the disaffected that terrorism is an unacceptable option, and of preventing it when it would otherwise occur.

16. There are reports from abroad of possible continuing and specific terrorism in the UK. For example, on the 12th September 2005 a press report by Udo Ulfkotte entitled "Security circles: Indications of a third London terror cell" was issued by the German news agency ddp. It reported that European intelligence services had "vague indications that [a] terror cell controlled from Bosnia is preparing a new attack on London". Whilst vague indications are hardly a justification for any hard conclusions, such reports help to emphasise the need for vigilance and effective preventative laws.

17. There are non legislative measures too that can be taken to improve work against terrorism. The Metropolitan Police Commissioner announced recently a reorganisation of such work, with significant effects on the deployment of current special branch officers. The Home Secretary’s declared intention to reform the organisation of police forces in England and Wales could be important in this context. My own observation after looking closely at the policing of terrorism over the past 3 years is that the existence of so large a number of police forces as at present does not lead uniformly to the best use of available expertise, and does not always provide a sufficient career structure for the retention of such expertise in counter-terrorism policing.

18. In the weeks since the 7th July I have received numerous representations about the future shape of legislation from members of the public, lawyers, police officers and others. I have scrutinised the observations of non-governmental organisations with a material interest. I have too followed the media coverage at home and to an extent abroad.

THE PROPOSALS

19. I regard the proposal on which I report here as coming from the following 4 sources –

(i) The draft Terrorism Bill 2005. I have seen two versions. The first was provided on the 15th September 2005, and a significantly altered draft on the 5th October. Properly, that draft was produced following various representations, and represents the government’s reconsidered view of what is required.

(ii) The Home Secretary’s published letters of the 15th September 2005 and 6th October 2005 to the Rt. Hon David Davis M.P. and to Mark Oaten M.P.

(iii) Some parts of the Home office’s written evidence of September 2005 to the House of Commons Select Committee on Home Affairs.

(iv) The Consultation Paper issued on the 6th October 2005 "Preventing Extremism Together: Places of Worship".

THE draft TERRORISM BILL 2005.

20. Clause 1: Encouragement of terrorism. This proposal provides an offence arising from the publishing of statements likely to be understood as an encouragement or inducement to terrorism. The maximum sentence would be 7 years’ imprisonment.

21. The original draft I was shown has been changed substantially. The previously separate proposed offence of glorifying terrorism has been subsumed into the heading of encouragement. The original version was in my view capable of drawing some odd results; the present version now concentrates in sub clause (2) (a) on statements designed to encourage emulation. What this means is that effectively the controversial idea of a separate offence simply of glorifying terrorism rightly has been dropped. A more specific state of mind is required of the putative offender. This is a sensible decision, consistent with the concerns I would have expressed about the original draft Bill shown to me. It was not workable in its original form.

22. A statutory defence with a reverse onus provision excuses innocent publication on the internet, which in this context is extremely difficult for internet service providers and chat room sites to control.

23. In my view this proposal in its revised form is a proportionate response to the real and present danger of young radically minded people being persuaded towards terrorism by apparently authoritative tracts wrapped in a religious or quasi-religious context. The balance between the greater public good and the limitation on the freedom to publish is no more offended by this proposal than it would be by, say, an instruction manual for credit card fraud were such to be published. I believe that it is Human Rights Act compatible.

24. Clauses 2 and 3: Dissemination of terrorist publications. These clauses seek to make it an offence to disseminate in printed form or electronically including on the internet any terrorist publication. The maximum sentence proposed is 7 years’ imprisonment. Some have argued that this would impose an unacceptable level of censorship on bookshops and websites, far greater than any restriction on, for example, obscene publications.

25. Analogies could be drawn with the dissemination of publications giving direct or indirect encouragement or other inducement to or information about other serious criminal acts, for example paedophile offences. There is no acceptable ground for objection to it being an offence to disseminate such publications. The defining sub clauses narrow significantly the circumstances in which an offence would be committed. There are two statutory defences set out in clause 2 subclauses (8) and (9), of which the latter appears designed to protect the innocent internet service provider and electronic publisher. The evidential burden of establishing the statutory defences is placed on the accused.

26. Clause 3 provides a detailed system of notification by a constable to the provider of an internet service. In short, the provider is required to remove from the service material offending the earlier clauses. If they are not removed, offences may be committed.

27. A question parliamentarians may wish to address in relation to clause 3 is whether such notices given by a constable should be subject to judicial control or confirmation, for example by a district judge (Magistrates’ Court).

28. In my view Clauses 2 and 3 generally are proportional and a sensible part of the legal armoury. However, I have one residual concern. Much research has been done into terrorism, and it involves a high degree of co-operation between genuine and respected academics in universities and institutes around the world. In addition, my own experience as a former M.P. and my current Parliamentary life leave me in no doubt that Members of Parliament and Peers with a particular interest in the subject might themselves and with their research staff pass publications to each other for the purposes of preparing policies, speeches and correspondence. Similar comments could be applied to some serious journalists. It is important to ensure that genuine and sometimes useful research is not turned into a samizdat activity. The government should consider whether amendments might be needed to ensure that these categories of activity are not criminalised.

29. Clause 4 is an appropriate procedural provision dealing with the giving of notices under clause 3.

30. Clause 5: preparation of terrorist acts. In my earlier reports on the operation of the Terrorism Act 2000 I have supported the idea of an offence of acts preparatory to and connected with terrorism. Effectively this would be an offence of facilitation. It is intended to catch those who, knowing the connection with terrorism and an intention to commit terrorist acts provided the facilities so to do. Examples would include the provision of accommodation for terrorists knowing they were such, and committing credit card fraud to assist in providing a living for terrorists.

31. Ministers should satisfy themselves that the clause is sufficient to cover the types of facilitation described. It occurs to me that the use of the words "committing" and "commit", with their direct reference to "acts of terrorism" might arguably limit the intended scope of the new offence.

32. Subject to checking the solidity of the drafting, Clause 5 is a proportional and proper response to achieve the criminalisation of the conduct described. The offence is potentially very serious, with a maximum of life imprisonment. Whilst many such offences in reality would attract far less severe sentences, the deterrent effect of it being made known that there is that maximum might be considerable.

33. Clause 5 has the advantage of being short, crisp and should emerge readily comprehensible. This will further strengthen its contribution to a fair yet robust canon of counter-terrorism law.

34. Clause 6: training for terrorism. This clause is designed to create an offence punishable with up to 10 years’ imprisonment of deliberately providing or receiving instruction or training in connection with terrorist offences. It covers too invitations to such training or instruction. The clause makes the extensive range of activity covered clear, and provides for the forfeiture of equipment and materials used in the commission of the offence.

35. In this instance too there are clear reasons for the introduction of the offence. It is in my view proportional and could make a significant contribution to the detection of potential terrorists well before operational harm is done by them. However, it is important that there should be the clearest understanding that this clause and clause 8 would not be misused. I question whether it is the role of our law, or even enforceable, to make it a criminal offence triable in our country to fight in a revolution the aims of which we support. The example of the ANC before the release of Nelson Mandela almost automatically springs to mind. Whether this concern is properly in the area of legislative drafting or of appropriate Ministerial statements is a matter for others.

36. Clause 7 provides reasonable powers of forfeiture in relation to offences under clause 6.

37. Clause 8: attendance at a place used for terrorist training. There is something of an overlap between this proposal and Clause 6. However, it is significantly wider. It covers mere attendance at any place, anywhere in the world, where instruction or training of the type described in Clause 6 is going on. The maximum sentence is 10 years’ imprisonment.

38. In my view this proposal is in clear need of modification. Some of Britain’s most respected journalists have from time to time reported in the public interest from terrorist training camps in various parts of the world. On occasion, they are the camps of fighting groups revolting against despotic regimes whose overthrow is greatly desired by the United Kingdom and others. As drafted, the law would render these journalists potential criminals, albeit subject to the ultimate discretion of the Attorney General as to whether they would be prosecuted.

39. In my view the government should look at Clause 8 again, and possibly elide it with Clause 6. The mischief legitimately and proportionately aimed at is principally the attendance for and/or receipt of instruction and training for a terrorist purpose presenting a danger because of affiliation to Al Qaeda and similar organisations, and/or danger to UK citizens and their allies and connected interests.

40. Clause 9: making and possession of devices or materials. This proposal is designed to make it an offence subject to a maximum of life imprisonment to be involved with radioactive devices or materials for the purposes of terrorism.

41. There is evidence and information from around the world of efforts to produce nuclear terrorism devices. The proposal is clearly needed and proportional to the risk to the public. This clause too has the virtue of clarity and simplicity.

42. Clauses 10, 11 and 12: misuse of devices or material and misuse and damage of facilities: terrorist threats relating to devices, materials or facilities: trespassing etc. on nuclear sites. These clauses too deal with the risk of nuclear terrorism, and the associated risks arising from trespass on nuclear sites. In my view these clauses provide a useful and necessary new set of offences to counter the horrific threat of nuclear terrorism ranging from attempts to build devices to hostage threats and dangerous trespass. They will not remove the possibility of legitimate protest very near to albeit outside the boundaries of nuclear sites.

43. Clause 13, 14 and 15 increase the maximum penalties for certain existing offences. They would allow the court a fuller range of penalty to meet the needs

of each case. They are appropriate.

44. Clause 16 brings into effect an existing statutory provision requiring the holding of preparatory hearings in the Crown Court in terrorism cases. Hearings of this type, though sometimes protracted, help considerably in case management and in the isolation of issues capable of consideration and resolution before a jury starts to consider evidence.

45. Clause 17 extends the UK jurisdiction to acts committed abroad in respect of all the proposed offences described above, and a list of others set out in sub-clause (2). The extra-territorial application is to all persons and companies, whether UK citizens/corporations or not.

46. The absence as yet of an effective and operational international criminal court has meant the inevitable increase in extra-territorial jurisdiction. In my view it could hardly be considered wrong to arrest and prosecute a major international terrorist if he happened to transit through the UK and be apprehended here; or a UK national involved in terrorism offences in other parts of the world.

47. Of course, the discretion whether or not to prosecute is important and sensitive in this context.

48. Clause 18 extends to directors, managers and comparable officers criminal liability for terrorism offences committed by a body corporate. Whilst this may cause some nervousness among companies trading in difficult parts of the world, the explicit inclusion in statute of this level of responsibility is proportional and fair, and will ensure the continuing vigilance of companies and other corporate bodies (including charities).

49. Clause 19 is important. Prosecution of any of the proposed offences described earlier in the Bill requires the consent of the territorial Director of Public Prosecutions; and the concurrent consent of the Attorney General (or Advocate General of Northern Ireland) if the offence has been committed for a purpose wholly or partly connected with the affairs of a country other than the United Kingdom. This double consent provision in all foreseeable circumstances should provide a safety valve against hasty or inappropriate decisions.

50. Clause 20 is an interpretation clause. It is broadly acceptable. The power of the Secretary of State to modify Schedule 1 (which sets out offences to be regarded as terrorism offences) by statutory instrument is to be subject to active Parliamentary scrutiny via the affirmative resolution procedure – a welcome and entirely correct revision to the earlier draft of the Bill.

51.

Part 2 of the Bill.

Clause 21: grounds of proscription. This clause extends the existing power to proscribe organisations which promote or encourage terrorism. It proposes the potential inclusion of organisations of which activities or statements glorify, exalt or celebrate terrorism. I expect a significant number of additional proscriptions of organisations around the time of publication of this report. I have seen the list of organisations to be additionally proscribed, and there are no surprises for the informed.

52. Proscription is regarded by some as something of a toothless tiger. However, after careful enquiry including discussions about the merits or otherwise of proscriptions during the worst of the troubles in Northern Ireland, I share the opposing view that it can play a role in reducing the opportunity for disaffected young people to become radicalised towards terrorism. That being so, extending the list to include the organisations envisaged in the clause is a proportional limitation on the freedom of association in relation to the greater public good. However, it is important that restraint is shown in the exercise of the power. In any event, proscription is subject to the system of law established through the Proscribed Organisations Appeals Commission [POAC].

53. Clause 22: name changes by proscribed organisations. This clause is intended to ensure that an organisation cannot slip out of proscription by the simple device of a change of name. This is an entirely practical and sensible proposal.

54. The system of law provided for the clause is procedurally elaborate, and seems well designed to use POAC as a protection against error or arbitrariness.

55. Clauses 23 and 24: extension of the period of detention by judicial authority. This proposal, to allow a maximum detention period of three months before charge, has provoked considerable political controversy. By the time of writing this report in early October 2005 views seem to have polarised into strong support or stark opposition – though in his letter of the 15th September to Mr Davis and Mr Oaten the Home Secretary made it clear that there was room for discussion about this proposal. Unfortunately the level of public information about this proposal has been poor, and the problem being tackled has been explained badly.

56. Currently the police investigate terrorism offences using what one might call traditional detective techniques, amply augmented by the work of the security services and deploying such technical skills as are relevant. Typically these control authorities may obtain tentative evidence of a terrorist cell, and piece by piece build up a case. There may be a huge amount of surveillance involved, and sometimes they have to play a patient waiting game against often extremely counter-surveillance skilled suspects.

57. In serious non-terrorist crime it is occasionally possible for the police to wait for the crime to be committed, and catch the criminals red-handed. This occurred with a major bullion robbery at Heathrow Airport for which the culprits were sentenced in September 2005. That approach is very rarely possible with terrorist crime, because of the potentially dreadful consequences of a terrorist act being brought to fruition. There have been occasions when, because of the nature of the threat, arrests have had to take place at an early stage to avoid the possibility of nervous terrorists acting earlier than might otherwise have been intended.

58. One consequence of a decision to arrest early in a police operation may be that though a great deal of evidence is potentially available, it simply has not been possible to gather it before arrest. It remains to be gathered after arrest if possible – even to the point of making a difference between someone being charged or not, or being charged at the appropriate criminal level or not. I am aware of several operations in which these problems have occurred.

59. Typical evidential issues requiring prolonged attention in this situation include –

· Decryption of computers: this sometimes requires expertise from abroad

· Other code breaking

· Analysis of recorded telephone product from home and abroad, sometimes very large in quantity

· Searches of large numbers of premises and vehicles

· Interviewing of many potential witnesses

· Discussions and cooperation with foreign police and security services where considered reliable

· Analysis of private libraries, offices and personal correspondence

· Translation of manuscript material, some in languages for which quality interpretative services are at a premium

· Giving adequate opportunity for suspects who wish to provide information to the authorities to do so discreetly and in a safe situation

· Obtaining carefully considered and good quality legal advice.

60. Much has been made of the process of interview, and there have been suggestions that more time is needed for that purpose than the current maximum detention period of 14 days in Schedule 8 of the Terrorism Act 2000 as amended. I do not regard extra time for interviews as being a sound basis for the extension of the time period. Typically those arrested for terrorism offences are taken under arrest to Paddington Green Police Station. There they are subject to forensic science procedures (taking of samples, fingerprinting etc.), and interviewed. Those arrested in groups often share the same solicitors, usually drawn from a narrow circle of firms with special expertise and experience in terrorist crime. Those solicitors are generally very professional, extremely skilled, and analytical in the advice they give. Although there are issues that take time, e.g. provision of interpreters, medical needs, prayer, the need for the solicitors to have time to see all their clients properly, and family visits, the reality is that most suspects exercise their right of silence in interview. If they are advised so to do, that advice is usually beyond reproach. In a potentially extremely serious case, the balance between whatever adverse inference might be available in court and, on the other hand, the advantage of only answering questions (if at all) in interview after a reasonable amount of disclosure by the police of their case, would lead most competent criminal lawyers to advise their clients to remain silent. This means that the interviewing process is rarely productive.

61. However, the evidential matters including those described in paragraph 59 above have been demonstrated to me by the police in England and Scotland as real problems. On the basis of my own enquiries and processes as independent reviewer, I am satisfied beyond doubt that there have been situations in which significant conspiracies to commit terrorist acts have gone unprosecuted as a result of the time limitations placed on the control authorities following arrest. This is not in the public interest, in which the prosecution of terrorism crime is of great importance.

62. The question then arises as to how much extra time should be permitted, and how it should be controlled. It would be wholly unacceptable for the extra time to be unrestricted, or in any way to be a form of internment. The proposal of a maximum of three months is founded on nothing more logical than the suggestion that it seems a reasonable maximum in all the circumstances. It is true to say that it is the maximum I have heard mentioned in several meetings I have attended. It would probably be an insufficient maximum period for a very few cases, but more than three months would certainly be unacceptably draconian. Almost all cases could be processed well within that period, most in far, far less time. I share the view that as a maximum three months is probably a practicable and sensible option, all other things being equal. I recommend that the proposal for that maximum should be so regarded.

63. Having said that, the question arises as to the protection to be offered to suspects, against arbitrary or over-long detention.

64. Clauses 23 and 24 enlarge the existing judicial scrutiny of applications to extend detention periods. Put simply for the purposes of this report, on the application of at least a police superintendent an application would be placed before a "judicial authority". For this purpose currently that is a district judge (Magistrates’ Courts), though the phrase is not exclusive to that. A cadre of district judges with great experience deals with all such applications now. I believe that they do so carefully and fairly, thoroughly scrutinising what is placed before them. They do an excellent job. Nevertheless the system of law they apply was designed to deal with short periods of detention up to seven days, now extended to fourteen. Inevitably the material they see is likely to be one-sided, and they have only modest opportunity for in-depth scrutiny. Though they can ask questions and do seek further information, they have no role in the inquiry under way and they have no independent advice or counsel before them. The procedure before district judges in my view has characteristics suited to short interference with liberty, and I should regret seeing it extended further. A more searching system is required to reflect the seriousness of the State holding someone in high-security custody without charge for as long as three months. I question whether what is proposed in the Bill would be proof to challenge under the Human Rights Act given the length of extended detention envisaged.

65. The Privy Counsellor Review Committee into the Anti-Terrorism, Crime and Security Act 2001, chaired by the Rt. Hon Lord Newton of Braintree, reported in December 2003 [2003 HC 100]. One of their recommendations, at paragraph 224 onwards, suggested the introduction of a system of examining magistrates along continental lines. Some in mainland Europe look longingly at our criminal justice system for better practice. However, without entering the wider debate about criminal justice procedures as a whole, I suggest that the Newton Committee’s recommendation may provide the clue to the system of protections needed to enable the period of detention without charge to be extended to a maximum of three months in rare cases. In advising this I repeat what I have suggested previously to officials in the Home Office.

66.

The Newton Committee said:

67. Detention for longer periods, certainly over a month, and beyond the slightest doubt three months, requires a reassuringly strong system of protection for the detained person. I suggest that the government should look again at this proposal, with a view to a system of law comprising the following key elements or similar requirements–

· Where detention beyond 14 days is to be applied for, the introduction of one of a small group of security-cleared, designated senior circuit judges as examining judge and "judicial authority" under the legislation

· That judge to be provided with a full and continuing account of all matters involved in the investigation in question

· The introduction of a security-cleared special advocate, also fully briefed as to the investigation, to make representations on the interests of the detained persons and to advise the judge

· The judge to have the power to require specific investigations to be pursued if reasonably necessary for the proper exercise of his/her jurisdiction

· Suitable opportunity for written and oral defence representations against extended detention, with oral hearings at the discretion of the judge

· Weekly decisions with reasons if extended detention granted

· The keeping of a written record (if necessary protected from disclosure for the purposes of any subsequent trial) of the judge’s activities in a case

· Appeal with permission to the High Court.

68. I suggest that a structured system along these lines would gain sufficient confidence, and would be appropriately robust, to meet all exigencies. It would be compatible with Human Rights legislation. It would compare favourably with protections in other countries, including France, Spain, Germany and the United States. I believe that clauses for the necessary primary legislation could be drafted quite simply and added to the Bill, and that regulations could follow to deal with any procedural aspects requiring closer definition. There are enough senior circuit judges in existence for this to be a feasible proposal (all the judges at the Central Criminal Court and at least one at every major Crown Court Centre), and if required the appointment of one or two more would be well worthwhile for this purpose. Special advocates exist already for the Special Immigration Appeals Commission [SIAC] and POAC, and their number has been increased by recent appointments. Steps have already been taken to improve their training to meet concerns expressed by me and others.

69. I claim no definitive authority for the suggestions made in this part of my report. I regard the current draft clauses as providing too little protection for the suspect, though I am concerned that extended periods of detention should be available for some investigations. I hope that what I have said may provide at least a signpost to an acceptable system. I am certain that this issue needs a more analytical and subtle approach than has seemed apparent from some comment to date.

70. Clause 25 and 26: all premises warrants for searches in terrorist investigations. This clause proposes amendments of the law relating to search warrants. It allows for warrants to be issued for ‘sets of premises’, and for ‘any premises occupied or controlled by persons specified in the application, including such sets of premises as are so specified …’. Judicial supervision of the process is provided by circuit and district judges, in England and Wales. Separate provision is made for Scotland.

71. This proposal simplifies the law on search warrants in terrorism cases. It is proportional and necessary to reasonable operational requirements and the public interest.

72. Clause 27: search, seizure and forfeiture of terrorist publications. This clause gives a justice of the peace jurisdiction to issue a warrant authorising the seizure of terrorist publications. Such publications may be removed, seized and, in some circumstances, ultimately forfeited.

73. There is a degree of concern that this provision may be used more than necessary, and could be seen as a form of censoring of bookshops, and bookstalls in mosques and other places where publications are made available.

74. The power is necessary; indeed the scheme of the Bill could hardly function without it. Without in any way questioning the excellent job done by lay justices all over the country, in this jurisdiction there may be subtle judgments of law to be made.

75. I suggest that the jurisdiction should rest in the hands of a professional judge accustomed to the issue of warrants of various kinds. The appropriate level might be district judge (Magistrates’ Courts) or equivalent.

76. Clause 28: power to search vehicles under Schedule 7 to the Terrorism Act 2000. This is a sensible provision to allow Schedule 7 searches of vehicles on a ship or aircraft or which an examining officer reasonably believes has been, or is about to be, on a ship or aircraft. It clarifies the law and is unexceptionable.

77. Clause 29: extension to internal waters of authorisations to stop and search. This proposal extends the authorisation and search powers under Terrorism Act 2000 section 44 to internal waters, and therefore to vessels of all kinds on them and their crews and passengers. Much controversy has surrounded the use of section 44. In previous reports I have recommended that there be a strong programme of training and comprehension of the use and limits of the section. The Metropolitan Police have taken very seriously the concerns expressed by myself and others. Mistakes are still being made. Training programmes are being developed around the country to achieve more effective use of a sometimes important power. The Home Office is scrutinising authorisations more rigorously than used to be the case, and by no means is every authorisation being approved. In some cases the geographical limit of applications is being confined by the Secretary of State. In Scotland section 44 was not used before the G8 Summit in 2005, other powers being regarded as adequate. However, in the immediate aftermath of the 7th July events and those of the 21st July, the section was necessary and well used.

78. In my work as reviewer the illogicality of section 44 powers being available on a road but not on an estuary or river nearby has been the subject of repeated frustration expressed by police officers. I share their view that the proposal in the clause is sensible and improves the law.

79. Clause 30: amendment of the Intelligence Services Act 1994. This clause amends powers for the issue to members of the intelligence services of warrants to act in particular ways. Urgent warrants could be issued by specified senior officials, in the immediate unavailability of the Secretary of State. Whilst this does not fall within my usual range of review, it seems to me a sensible and practical change to the law and subject to appropriate controls and limitations.

80. Clause 31: interception warrants. This proposal is for amendment of the Regulation of Investigatory Powers Act 2000 [RIPA]. It extends the periods for which warrants remain valid, and simplifies the modification of warrants in the reasonable pursuit of national security. The warrants regime has its own system of law outside my review mechanism, and I leave it to others to comment on the effect of the proposed changes to RIPA so far as the integrity of the process is concerned. In terms of the effectiveness of counter-terrorism legislation, the clause is likely to be helpful.

81. Clause 32: disclosure notices for the purposes of terrorist investigations. This clause in effect introduces an obligation to disclose information of substantial value (or likely to be so) in connection with a terrorist investigation, on receipt of a disclosure notice. The logic of this is plain. If a person or body corporate has information that could lead to a terrorist, and therefore possibly prevent a terrorism event, such information should be disclosed. That this is in the public interest and proportional is plain.

82. Clause 33: amendment of the definition of terrorism etc. extends the statutory definition of terrorism in other statutes to cover terrorist actions against inter-governmental organisations. Given the prevalence and importance of such organisations, it is an acceptable proposal. They should have the same statutory protection from terrorism as the organs of the nation state.

83. Clause 34: applications for extended detention of seized cash. This proposes that an application to a justice of the peace for an order under Anti-Terrorism, Crime and Security Act 2001 Schedule 1 paragraph 3, relating to the period of detention of seized terrorist cash, might be without notice and in private. I can see sound operational reasons for this, upon which Ministers may wish to expand if appropriate.

84. Clause 35: review of terrorism legislation. This provides for the review (currently carried out by myself) of the operation of the Terrorism Act 2000 to be extended to cover the new legislation. The merits of this proposal I leave to others. The process presents no difficulty. Reviewing the Act of 2000 without including the new legislation (if passed) would present practical difficulties for the statutory reviewer.

85. Clause 36 to 38: consequential amendments and repeals, expenses and short title, commencement and extent. For all purposes except one small exception it should be noted that the proposed legislation applies to the whole of the United Kingdom. I see no reason why those parts of the draft Bill as are passed should not come into force very quickly indeed. Beyond that I can make no useful comment on these clauses.

86. Schedule 1: Convention offences. These are offences deemed for certain purposes to be regarded as terrorism offences. The list includes offences relating to explosives, biological weapons, certain internationally protected persons, hostage-taking, hijacking or other offences against aircraft, nuclear material, aviation and maritime security including navigation ships and platforms, chemical weapons, terrorist funds, directing terrorist organisations, nuclear weapons and connected inchoate offences such as conspiracy. The list is unexceptionable.

87. Schedule 2: seizure and forfeiture of terrorist publications. This schedule provides procedural provisions connected with the proposals contained in clause 27. Doubtless there could be many views of the procedure if it is introduced. That set out in the schedule, whilst possibly capable of improvement, appears reasonably stringent and easy to understand. It should prove fit for the purpose.

88. Schedule 3: repeals. This appears to be accurate.

THE HOME SECRETARY’S LETTERS OF THE 15TH SEPTEMBER 2005 AND THE 6TH OCTOBER 2005.

89. In his 15th September letter to the other political spokespersons on Home Affairs Mr Clarke emphasised that the Bill contains "very much draft clauses". He then provided a brief explanation of each part of the draft Bill, doubtless to be augmented by an explanatory note and Notes on Clauses in due course. This process has been followed in the later letter.

90. I am satisfied that the explanations are accurate and provide an informed basis for the debate and for those attempting the always difficult task of drafting amendments.

91. On page 3 of his 15th September letter the Home Secretary realistically recognised the potential difficulty presented by clause 23 dealing with the extension of detention periods. He seemed to be suggesting the possibility of a shorter period being acceptable. The October letter is less encouraging to changing the period envisaged. I should be concerned if there was a Parliamentary Dutch auction over the length of the extended period. As I have made clear above, there is no magic in the proposed three months: however, having examined the representations made to me by police officers and others, and for the reasons given above, I consider that three months is a reasonable estimate for the maximum time needed to bring the most serious and difficult cases to the point of fruition. That point is when the decision can be made on an empirical basis whether to charge, and if so what to charge. There is surely a public interest in the correct people being charged with offences of an appropriate nature and at the correct level of criminality. Of course, there remains a trial and they may be not guilty, but that is in the next stage of the procedure and may depend on factors not available to investigators.

92. The more important question than the period seems to me to be a well structured process with a high level of judicial protection. I suggest that especial attention be given to that part of the issue, and have set out some suggestions at paragraphs 66 and 67 above.

93. Also on the third page of his first letter, the Home Secretary dealt with the improvement of immigration procedures, to be included in the current Asylum and Nationality Bill. The particular proposals set out on that page are appropriate and proportional for dealing with the serious threats posed by terrorists to the safety of the public.

94. In the correspondence the Home Secretary has dealt with the potential improvement of trial procedures including the possible use of security-sensitive evidence. I repeat what I have said before – the potential to use intercept evidence should be available. This would not mean that it would have to be used. In a small number of terrorism cases, and probably a larger number of drug-smuggling and money-laundering cases, and possibly in other categories of crime especially with an international dimension, it would help to secure convictions. I appreciate and understand the problems of transcribing, disclosing and using such evidence. However, I feel that such problems could be addressed by particular rules ensuring fairness whilst not placing impossible burdens on the control authorities.

WRITTEN EVIDENCE BY THE HOME OFFICE TO THE SELECT COMMITTEE ON HOME AFFAIRS

95. The Select Committee requested this written evidence following the events in London of the 7th July 2005. It is a detailed document, with a useful annex containing The Hague Multiannual Programme and its Action Plan concerned with the strengthening of freedom, security and justice. The ten priorities of the Programme focus coherently on international action to combat terrorism and the associated issue of the security of borders.

96. Much of the document containing the Home Office evidence deals with matters now included in the draft Bill and discussed above. Of the matters outside the Bill, a few merit separate mention.

97. At paragraph 7 the evidence announced that the Home Office will consult on setting a maximum time limit for all future extradition cases involving terrorism. Whilst time limits must never be allowed to override fairness, plainly it is desirable that a realistic timetable should be set and followed wherever possible so that such cases are dealt with to a reasonable timetable.

98. At paragraphs 8 to 16 the evidence particularised the government’s wish to enter into Memoranda of Understanding [MoU] with countries to which deportation would otherwise be excluded by reason of past and/or current failures by those countries in their criminal justice systems. Such failures would render deportation unlawful because they would be inconsistent with the UK’s international obligations under the European Convention on Human Rights, and especially Article 3.

99. I have read a great deal of what I consider to be intemperate and ill-considered discussion on this subject. Some appear to have suggested that the judiciary might be directed by statute towards a particular interpretation of Article 3 and possibly other connected national and/or international legislation. That is a very bad idea. The Convention is written in happily plain language, and statutory judicial interpretation (besides being a contradiction in terms in this context at least) could lead to unwelcome and unnecessary tension between the executive and the judiciary.

100. I have pondered arguments amounting to an assertion that once in breach of civilised standards a country can never be trusted to change its ways or redeem itself. That is as clear a counsel of despair as can be imagined. Nobody should ignore the power of international diplomacy, economics, defence and trade, all part of the advantages of being part of the community of nations living in mutual comity. The 20th century saw many such changes, not least after the fall of the Soviet Union.

101. I believe that it is realistically possible that some offending countries may agree to an internationally verifiable process that would ensure that, at the very least in connection with those deported and their families, proper standards would be applied. Indeed, some EU countries already deport to at least one such country and I have seen little evidence of those so deported having been subject to human rights abuses on their return. Of course, if a person is returned it becomes incumbent upon them to obey the laws of that country as much as they are expected to obey our own whilst here.

102. I understand that the process of negotiating a MoU with at least one contextually significant country is intensive and moderately advanced, and is being given the attention of a small group of experts created for the purpose. This process should continue as diligently as possible. A MoU has already been reached with Jordan.

103. However, I do have a significant concern. Former subjects of control orders under the Prevention of Terrorism Act 2005 have been detained in custody under immigration procedures with a view to deportation. Their control orders were revoked on their being detained. I have a continuing responsibility to review the operation of the control orders system. In relation to the persons in question there were some difficulties as to the effectiveness of the controls in terms of national security. However, those difficulties though involving very considerable departmental time were being addressed diligently and efficiently.

104. With the exception of one individual, all those recently detained as described above could not be deported without at least one MoU being reached. When that will be reached is uncertain. In my view it is of real concern that detention without charge should be reinstated in effect for this group of people unless there is an early and realistic prospect of the relevant MoU being reached presently.

105. At paragraphs 20-21 of the evidence, emphasis was placed on working with faith leaders and the Muslim community. As I meet ever more people with worries about the repercussions of terrorism in terms of community relations, I become ever more convinced that all measures should be taken to engage (especially) young Muslims in the discussion of terrorism and extremism as compared with responsible citizenship. A part of this places a great responsibility on religious Muslims to ensure as far as possible that their teachers and preachers are not engaged in inappropriate activities or propaganda – just as other religions and the political process must do everything possible to persuade the public out of xenophobia and hostility to community dress and other customs.

106. At paragraph 23 the evidence discussed the protection of our borders. In this context the e-borders programme is already making progress. Embarkation checks are an important part of the counter-terrorism effort, and hopefully will be made more efficient and borne patiently by the travelling public and ports operators.

THE CONSULTATION PAPER "PREVENTING EXTREMISM TOGETHER: Places of Worship"

107. This consultation paper and its covering letter are designed to address the problem of the religious promotion and preaching of extremist activity. It describes in paragraph 8 as "essential" taking action against extremism in places of worship where such extremism foments extremism in others and incites people to terrorist acts. It is intended to augment existing laws against incitement to criminal offences.

108. Paragraphs 17 to 22 set out a proposed new power under which those "controlling" a place of worship can be required to bring the extremist activity to an end. If they failed to do so, they would themselves be guilty of a criminal offence.

109. Plainly there are some human rights issues around these proposals, given the fundamental nature of freedom of worship. There are practical difficulties too, about defining worship, and places of worship. Some places of worship are merely domestic spaces, others in the open air. What is a sermon? When is a lecture a sermon, and vice-versa? These are serious questions and require careful examination before we introduce what could be a law we might come to regret.

110. Given the extensive tightening of the law against terrorism and the creation of additional offences contained in the new Bill, I doubt the urgency of this additional proposal. If after the consultation it remains the government’s wish to legislate in this way, I suggest that a draft Bill might be produced and subjected to the pre-legislative parliamentary scrutiny procedure. This followed by normal legislative procedures would provide the best possible prospect of workable legislation, if that can be achieved.

MAIN CONCLUSIONS

111. Generally, I regard the current proposals for legislative reform as providing a set of useful and necessary additions to the law to counter terrorism.

112. I had a serious concern about Clause 2 of the original draft Bill, on the glorification of terrorism. The revised version, with its removal of an offence simply of glorifying terrorism, is significantly different.

113. I consider that Clauses 6 and 8, concerning training for terrorism and attendance at a place used for terrorist training, should be considered as to whether they are more extensive than required. Possibly they should be elided.

114. I have a set of concerns about Clauses 24 and 25, concerning the extension of the potential periods of detention by judicial authority. My concerns are not founded upon the notion of extending the time to three months. However, I advise that a much stronger form of judicial control is required.

115. I have a particular concern about the recent detention for deportation of former subjects of control orders, in the absence of current Memoranda of Understanding with the countries to which they would be deported.

116. The most recent proposal, concerning the control of worship and places of worship, needs careful scrutiny.

Common Dreams : The Meeting That Never Was: Pat Tillman and Noam Chomsky

The Meeting That Never Was: Pat Tillman and Noam Chomsky

by Dave Zirin | CommonDreams.org | October 7, 2005

"I don't believe it," seethed Ann Coulter.

Her contempt was directed at a September 25 San Francisco Chronicle story reporting that former NFL star and Army Ranger war hero Pat Tillman, who was killed in Afghanistan last year, believed the US war on Iraq was "f***ing illegal" and counted Noam Chomsky among his favorite authors. It must have been quite a moment for Coulter, who upon Tillman's death described him in her inimitably creepy fashion as "an American original--virtuous, pure and masculine like only an American male can be." She tried to discredit the story as San Francisco agitprop, but this approach ran into a slight problem: The article's source was Pat Tillman's mother, Mary.

Mary and the Tillman family are relentlessly pushing for answers to the questions surrounding Pat's death in Afghanistan. They want to know why it took the Pentagon five weeks to tell them he died in a tragic case of friendly fire. They want to know why they were unwitting props at Pat's funeral, weeping while lies were told by eulogizing politicians. Mary is now hoping that a new Pentagon inquiry will bring closure. "There have been so many discrepancies so far that it's hard to know what to believe," she said to the Chronicle. "There are too many murky details."

The very private Tillmans have revealed a picture of Pat profoundly at odds with the GI Joe image created by Pentagon spinmeisters and their media stenographers. As the Chronicle put it, family and friends are now unveiling "a side of Pat Tillman not widely known--a fiercely independent thinker who enlisted, fought and died in service to his country yet was critical of President Bush and opposed the war in Iraq, where he served a tour of duty. He was an avid reader whose interests ranged from history books...to works of leftist Noam Chomsky, a favorite author." Tillman had very unembedded feelings about the Iraq War. His close friend Army Spec. Russell Baer remembered, "I can see it like a movie screen. We were outside of [an Iraqi city] watching as bombs were dropping on the town.... We were talking. And Pat said, 'You know, this war is so f***ing illegal.' And we all said, 'Yeah.' That's who he was. He totally was against Bush." With these revelations, Pat Tillman the PR icon joins WMD and Al Qaeda connections on the heap of lies used to sell the Iraq War.

Tillman's transition from one-dimensional caricature to critically thinking human being is a long time coming. The fact is that in death he was far more useful to the armchair warriors than he had ever been in life. When the Pro Bowler joined the Army Rangers, the Pentagon brass needed a loofah to wipe their drool: He was white, handsome and played in the NFL. For a chicken-hawk Administration led by a President who loves the affectations of machismo but runs from protesting military moms, this testosterone cocktail was impossible to resist. The problem was that Tillman wouldn't play their game. To the Pentagon's chagrin, he turned down numerous offers to be its recruitment poster child.

But when Tillman fell in Afghanistan the wheels once again started to turn. Now the narrative was perfect: "War hero and football star dies fighting terror." The Abu Ghraib scandal was about to hit the press, so the President found it especially useful to praise Tillman as "an inspiration on and off the football field, as with all who made the ultimate sacrifice in the war on terror." His funeral was nationally televised. Bush even went back to the bloody well during the presidential campaign, addressing his team's fans on the Arizona Cardinals' stadium Jumbotron.

We now know, of course, that this was all a brutal charade. Such callous manipulation is fueling the Tillman family's anger. As Mary Tillman said this past May, "They could have told us up front that they were suspicious that [his death] was a fratricide, but they didn't. They wanted to use him for their purposes.... They needed something that looked good, and it was appalling that they would use him like that." A growing number of military families, similarly angered, are criticizing the war in Iraq through organizations like Military Families Speak Out.

As for Chomsky, whom Ann Coulter would undoubtedly label "treasonous," Mary Tillman says a private meeting was planned between him and Pat after Pat's return--a meeting that never took place, of course. Chomsky confirms this scenario. This was the real Pat Tillman: someone who, like the majority of this country, was doubting the rationale for war, distrusting his Commander in Chief and looking for answers. The real Pat Tillman, the one with three dimensions, must stick in the throat of the Bush-Coulter gang, a pit in the cherry atop their bloody sundae.

Dave Zirin is the author of "'What's My Name, Fool?': Sports and Resistance in the United States" published by Haymarket Books. Reach the author at dave@edgeofsports.com.

S.F. Chronicle : FAMILY DEMANDS THE TRUTH

FAMILY DEMANDS THE TRUTH

New inquiry may expose events that led to Pat Tillman's death

Robert Collier | San Francisco Chronicle | September 25, 2005

The battle between a grieving family and the U.S. military justice system is on display in thousands of pages of documents strewn across Mary Tillman’s dining room table in suburban San Jose.

As she pores through testimony from three previous Army investigations into the killing of her son, former football star Pat Tillman, by his fellow Army Rangers last year in Afghanistan, she hopes that a new inquiry launched in August by the Pentagon’s inspector general finally will answer the family’s questions:

Were witnesses allowed to change their testimony on key details, as alleged by one investigator? Why did internal documents on the case, such as the initial casualty report, include false information? When did top Pentagon officials know that Tillman’s death was caused by friendly fire, and why did they delay for five weeks before informing his family?

“There have been so many discrepancies so far that it’s hard to know what to believe,” Mary Tillman said. “There are too many murky details.” The files the family received from the Army in March are heavily censored, with nearly every page containing blacked-out sections; most names have been deleted. (Names for this story were provided by sources close to the investigation.) At least one volume was withheld altogether from the family, and even an Army press release given to the media has deletions. On her copies, Mary Tillman has added competing marks and scrawls — countless color-coded tabs and angry notes such as “Contradiction!” “Wrong!” and “????”

A Chronicle review of more than 2,000 pages of testimony, as well as interviews with Pat Tillman’s family members and soldiers who served with him, found contradictions, inaccuracies and what appears to be the military’s attempt at self-protection.

For example, the documents contain testimony of the first investigating officer alleging that Army officials allowed witnesses to change key details in their sworn statements so his finding that certain soldiers committed “gross negligence” could be softened.

Interviews also show a side of Pat Tillman not widely known — a fiercely independent thinker who enlisted, fought and died in service to his country yet was critical of President Bush and opposed the war in Iraq, where he served a tour of duty. He was an avid reader whose interests ranged from history books on World War II and Winston Churchill to works of leftist Noam Chomsky, a favorite author.

Unlike Cindy Sheehan — who has protested against President Bush because of the death of her son Casey in combat in Baghdad — Mary Tillman, 49, who teaches in a San Jose public junior high school, and her ex-husband, Patrick Tillman, 50, a San Jose lawyer, have avoided association with the anti-war movement. Their main public allies are Sen. John McCain, RAriz., and Rep. Mike Honda, D-San Jose, who have lobbied on their behalf. Yet the case has high stakes because of Pat Tillman’s status as an all-American hero.

A football star at Leland High School in San Jose and at Arizona State University, Tillman was chosen Pac-10 defensive player of the year in 1997 and selected by the Arizona Cardinals in the NFL draft the following spring.

He earned a bachelor’s degree in marketing from Arizona State and graduated summa cum laude in 3 1/2 years with a 3.84 grade point average. Ever the student, Tillman not only memorized the playbook by the time he reported for the Cardinals’ rookie camp but pointed out errors in it. He then worked on a master’s degree in history while playing professional football.

His 224 tackles in a single season (2000) are a team record, and because of team loyalty he rejected a five year, $9 million offer from the St. Louis Rams for a one-year, $512,000 contract to stay with Arizona the next year.

Moved in part by the Sept. 11, 2001, terrorist attacks, Tillman decided to give up his career, saying he wanted to fight al Qaeda and help find Osama bin Laden. He spurned the Cardinals’ offer of a three year, $3.6 million contract extension and joined the Army in June 2002 along with his brother Kevin, who was playing minor-league baseball for the Cleveland Indians organization.

Pat Tillman’s enlistment grabbed the attention of the nation — and the highest levels of the Bush administration. A personal letter from Secretary of Defense Donald Rumsfeld, thanking him for serving his country, now resides in a storage box, put away by Pat’s widow, Marie.

Instead of going to Afghanistan, as the brothers expected, their Ranger battalion was sent to participate in the U.S.-led invasion of Iraq in March 2003. The Tillmans saw combat several times on their way to Baghdad. In early 2004, they finally were assigned to Afghanistan.

Although the Rangers are an elite combat group, the investigative documents reveal that the conduct of the Tillmans’ detachment — A Company, 2nd Battalion, 75th Ranger Regiment — appeared to be anything but expert as it advanced through a remote canyon in eastern Afghanistan on April 22, 2004, on a mission to search for Taliban and al Qaeda fighters in a village called Manah.

According to the files, when one of the humvees became disabled, thus stalling the mission, commanding officers split Tillman’s platoon in two so one half could move on and the other could arrange transport for the disabled vehicle. Platoon leader Lt. David Uthlaut protested the move as dangerous, but he was overruled. The first group was ordered out in the late afternoon, with Pat Tillman in the forward unit. Kevin’s unit followed 15 to 20 minutes later, hauling the humvee on an Afghan-owned flatbed truck. Both groups temporarily lost radio and visual contact with each other in the deep canyon, and the second group came under attack from suspected Taliban fighters on the surrounding ridges.

Pat Tillman, according to testimony, climbed a hill with another soldier and an Afghan militiaman, intending to attack the enemy. He offered to remove his 28-pound body armor so he could move more quickly, but was ordered not to. Meanwhile, the lead vehicle in the platoon’s second group arrived near Tillman’s position about 65 meters away and mistook the group as enemy. The Afghan stood and fired above the second group at the suspected enemy on the opposite ridge. Although the driver of the second group’s lead vehicle, according to his testimony, recognized Tillman’s group as “friendlies” and tried to signal others in his vehicle not to shoot, they directed fire toward the Afghan and began shooting wildly, without first identifying their target, and also shot at a village on the ridgeline.

The Afghan was killed. According to testimony, Tillman, who along with others on the hill waved his arms and yelled “cease fire,” set off a smoke grenade to identify his group as fellow soldiers. There was a momentary lull in the firing, and he and the soldier next to him, thinking themselves safe, relaxed, stood up and started talking. But the shooting resumed. Tillman was hit in the wrist with shrapnel and in his body armor with numerous bullets.

The soldier next to him testified: “I could hear the pain in his voice as he called out, ‘Cease fire, friendlies, I am Pat f—ing Tillman, dammit.” He said this over and over until he stopped,” having been hit by three bullets in the forehead, killing him.

The soldier continued, “I then looked over at my side to see a river of blood coming down from where he was … I saw his head was gone.” Two other Rangers elsewhere on the mountainside were injured by shrapnel.

Kevin was unaware that his brother had been killed until nearly an hour later when he asked if anyone had seen Pat and a fellow soldier told him.

Tillman’s death came at a sensitive time for the Bush administration — just a week before the Army’s abuse of prisoners at Abu Ghraib in Iraq became public and sparked a huge scandal. The Pentagon immediately announced that Tillman had died heroically in combat with the enemy, and President Bush hailed him as “an inspiration on and off the football field, as with all who made the ultimate sacrifice in the war on terror.”

His killing was widely reported by the media, including conservative commentators such as Ann Coulter, who called him “an American original — virtuous, pure and masculine like only an American male can be.” His May 3, 2004, memorial in San Jose drew 3,500 people and was nationally televised.

Not until five weeks later, as Tillman’s battalion was returning home, did officials inform the public and the Tillman family that he had been killed by his fellow soldiers.

According to testimony, the first investigation was initiated less than 24 hours after Tillman’s death by an officer in the same Ranger battalion. His report, delivered May 4, 2004, determined that soldiers involved in the incident had committed “gross negligence” and should be appropriately disciplined. The officer became a key witness in the subsequent investigation. For reasons that are not clear, the officer’s investigation was taken over by a higher ranking commander. That officer’s findings, delivered the next month, called for less severe discipline.

The parents, protesting that many questions were left unanswered, found a sympathetic ear in McCain, who Mary Tillman later said was greatly admired by her son. Tillman was well known in Arizona because of his success there as a college and pro football player. McCain began to press the Pentagon on the family’s behalf, and a third probe finally was authorized. Its report was delivered in January.

The military is saying little publicly about the Tillman case. Most Army personnel who were involved in the Tillman incident or the investigations declined to comment publicly when contacted by The Chronicle. The inspector general’s press office also declined to comment, saying only that the new probe is openended.

Over the coming weeks, Pentagon investigators are scheduled to carry out new interviews with many of the soldiers, officers and others involved in the incident. As they carry out their reassessment, potentially controversial points include:

-- Conflicting testimony. In his Nov. 14, 2004, interrogation, the first investigator expressed frustration with “watching some of these guys getting off, what I thought … was a lesser of a punishment than what they should’ve received. And I will tell you, over a period of time … the stories have changed. They have changed to, I think, help some individuals.”

The investigator testified that after he submitted his report on May 3, higher-ranking officers permitted soldiers to change key details of their testimony in order to prevent any individual from being singled out for punishment.

“They had the entire chain of command (inaudible) that were involved, the [deleted], all sticking up for [deleted] … And the reason the [deleted] called me in … because the [deleted] … changed their story in how things occurred and the timing and the distance in an attempt to stick up for their counterpart, implied, insinuated that the report wasn’t as accurate as I submitted it …” the first investigator testified.

In another section of his testimony, he said witnesses changed details regarding “the distance, the time, the location and the positioning” in Tillman’s killing.

Another disputed detail was whether the soldiers were firing while speeding down the canyon or whether they stopped, got out and continued shooting. In testimony in the third investigation, the soldiers said they did not stop. However, the medical examiner’s report said Tillman was killed by three bullets closely spaced in his forehead — a pattern that would have been unlikely if the shooter were moving fast. Spc. Russell Baer, a soldier pinned down by gunfire on the hillside near Tillman, said in an interview with The Chronicle that at least two soldiers had gotten out of the humvee to fire uphill. One other soldier confirmed this account to a Tillman family member.

One soldier dismissed by the Rangers for his actions in the incident submitted a statement in the third investigation that suggests the probe was incomplete: “The investigation does not truly set to rest the events of the evening of 22 April 2004. There is critical information not included or misinterpreted in it that could shed some light on who is really at fault for this,” he wrote.

-- Commanders’ accountability. According to the documents and interviews, Capt. William Saunders, to whom platoon leader Uthlaut had protested splitting his troops, was allowed to change his testimony over a crucial detail — whether he had reported Uthlaut’s dissent to a higher ranking commander. In initial questioning, Saunders said he had done so, but when that apparently was contradicted by that commander’s testimony, Saunders was threatened with perjury charges. He was given immunity and allowed to change his prior testimony.

The regiment’s commander, Lt. Col. Jeffrey Bailey, was promoted to colonel two months after the incident, and Saunders, who a source said received a reprimand, later was given authority to determine the punishment of those below him. He gave administrative reprimands to six soldiers, including Uthlaut, who had been seriously wounded in the face by shrapnel in the incident. Uthlaut — who was first captain of his senior class at West Point, the academy’s highest honor — was dismissed from the Rangers and re-entered the regular Army.

“It seems grossly inappropriate that Saunders would determine punishment for the others when he shares responsibility for the debacle,” Mary Tillman said.

Baer told The Chronicle that commanding officers were to blame for the friendly fire because they split the platoon and ordered it to leave a secure location in favor of a region known as a Taliban stronghold.

“It was dumb to send us out during daylight,” said Baer, who was honorably discharged from the Rangers earlier this year and lives in the East Bay.

“It’s a well-known military doctrine that privates first learn going through basic training — if you are in enemy territory and you are stopped for a prolonged period of time, the best thing to do is to wait until nightfall. Why they thought that moving us out in broad daylight from our position, dragging a busted humvee slowly through a known hotspot after we had been stranded there all day was a good idea will forever elude me. Who made that decision? Bailey? Saunders? That’s what I want to know.”

-- Inaccurate information. While the military code gives clear guidance for informing family members upon a soldier’s death when cases are suspected of being a result of friendly fire, that procedure was not followed in the Tillman case. After Tillman’s death, the Army gave conflicting and incorrect descriptions of the events.

On April 22, the family was told that Tillman was hit with enemy fire getting out of a vehicle and died an hour later at a field hospital.

Although there was ample testimony that Tillman died immediately, an Army report — dated April 22, 2004, from the field hospital in Salerno, Afghanistan, where his body was taken — suggested otherwise. While it stated that he had no blood pressure or pulse “on arrival,” it stated that cardio pulmonary resuscitation had been conducted and that he was transferred to the intensive care unit for further CPR.

On April 23, all top Ranger commanders were told of the suspected fratricide. That same day, an Army press release said he was killed “when his patrol vehicle came under attack.”

On April 29, four days before Tillman’s memorial, Gen. John Abizaid, chief of U.S. Central Command, and other top commanders were told of the fratricide. It is not known if Abizaid reported the news to Washington. Mary Tillman believes that with her son’s high profile, and the fact that Rumsfeld sent him a personal letter, the word quickly reached the defense secretary. “If Pat was on Rumsfeld’s radar, it’s pretty likely that he would have been informed right away after he was killed,” she said. White House, Pentagon and Army spokesmen all said they had no information on when Bush or Rumsfeld were informed.

On April 30, the Army awarded Tillman a Silver Star medal for bravery, saying that “through the firing Tillman’s voice was heard issuing fire commands to take the fight to the enemy on the dominating high ground.”

On May 2, the acting Army Secretary Les Brownlee was told of the fratricide.

On May 7, the Army’s official casualty report stated incorrectly that Tillman was killed by “enemy forces” and “died in a medical treatment facility.”

On May 28, the Army finally admitted to Tillman’s family that he had been killed by friendly fire.

“The administration clearly was using this case for its own political reasons,” said the father, Patrick Tillman. “This cover-up started within minutes of Pat’s death, and it started at high levels. This is not something that (lower-ranking) people in the field do,” he said.

The files show that many of the soldiers questioned in the inquiry said it was common knowledge that the incident involved friendly fire.

A soldier who on April 23 burned Tillman’s bullet riddled body armor — which would have been evidence in a friendly-fire investigation — testified that he did so because there was no doubt it was friendly fire that killed Tillman. Two days later, Tillman’s uniform and vest also were burned because they were soaked in blood and considered a biohazard. Tillman’s uniform also was burned.

The officer who led the first investigation testified that when he was given responsibility for the probe the morning after Tillman’s death, he was informed that the cause was “potential fratricide.’’

After they received the friendly-fire notification May 28, the Tillmans began a public campaign seeking more information. But it was only when the Tillmans began angrily accusing the Pentagon of a coverup, in June 2005, that the Army apologized for the delay, issuing a statement blaming “procedural misjudgments and mistakes.”

-- Legal liability. In testimony on Nov. 14, the officer who conducted the first investigation said that he thought some Rangers could have been charged with “criminal intent,” and that some Rangers committed “gross negligence.” The legal difference between the two terms is roughly similar to the distinction between murder and involuntary manslaughter.

The Tillmans demand that all avenues of inquiry remain open.

“I want to know what kind of criminal intent there was,” Mary Tillman said. “There’s so much in the reports that is (deleted) that it’s hard to tell what we’re not seeing.”

In Congress, pressure is building for a full public disclosure of what happened. “I am committed to continuing my work with the Tillman family to ensure that their concerns are being addressed,” said Rep. Honda. He added that he expects the investigation to do the following: “1) provide all factual evidence about the events of April 22, 2004; 2) identify the command decisions that contributed to Pat Tillman’s death; 3) explain why the Army took so long to reveal fratricide as the cause of Pat Tillman’s death; and 4) offer all necessary recommendations for improved procedures relating to such incidents.”

Patrick Tillman drily called the new Army probe “the latest, greatest investigation.” He added, “In Washington, I don’t think any of them want it investigated. They (politicians and Army officials) just don’t want to see it ended with them, landing on their desk so they get blamed for the cover-up.” The January 2005 investigation concluded that there was no coverup.

Throughout the controversy, the Tillman family has been reluctant to cause a media stir. Mary noted that Pat shunned publicity, refusing all public comment when he enlisted and asking the Army to reject all media requests for interviews while he was in service. Pat’s widow, Marie, and his brother Kevin have not become publicly involved in the case, and they declined to comment for this article.

Yet other Tillman family members are less reluctant to show Tillman’s unique character, which was more complex than the public image of a gung-ho patriotic warrior. He started keeping a journal at 16 and continued the practice on the battlefield, writing in it regularly. (His journal was lost immediately after his death.) Mary Tillman said a friend of Pat’s even arranged a private meeting with Chomsky, the antiwar author, to take place after his return from Afghanistan — a meeting prevented by his death. She said that although he supported the Afghan war, believing it justified by the Sept. 11 attacks, “Pat was very critical of the whole Iraq war.”

Baer, who served with Tillman for more than a year in Iraq and Afghanistan, told one anecdote that took place during the March 2003 invasion as the Rangers moved up through southern Iraq.

“I can see it like a movie screen,” Baer said. “We were outside of (a city in southern Iraq) watching as bombs were dropping on the town. We were at an old air base, me, Kevin and Pat, we weren’t in the fight right then. We were talking. And Pat said, ‘You know, this war is so f— illegal.’ And we all said, ‘Yeah.’ That’s who he was. He totally was against Bush.”

Another soldier in the platoon, who asked not to be identified, said Pat urged him to vote for Bush’s Democratic opponent in the 2004 election, Sen. John Kerry.

Senior Chief Petty Officer Stephen White — a Navy SEAL who served with Pat and Kevin for four months in Iraq and was the only military member to speak at Tillman’s memorial — said Pat “wasn’t very fired up about being in Iraq” and instead wanted to go fight al Qaeda in Afghanistan. He said both Pat and Kevin (who has a degree in philosophy) “were amazingly well-read individuals … very firm in some of their beliefs, their political and religious or not so religious beliefs.”

Baer recalled that Tillman encouraged him in his ambitions as an amateur poet. “I would read him my poems, and we would talk about them,” Baer said. “He helped me grow as an individual.”

Tillman subscribed to the Economist magazine, and a fellow soldier said Tillman created a makeshift base library of classic novels so his platoon mates would have literature to read in their down time. He even brought gourmet coffee to brew for his platoon in the field in Afghanistan.

Baer said Tillman was popular among his fellow soldiers and had no enemies. “The guys who killed Pat were his biggest fans,” he said. “They were really wrecked afterward.” He called Tillman “this amazing positive force who really brought our whole platoon together.

He had this great energy. Everybody loved him.” His former comrades and family recall Tillman as a born leader yet remarkably humble. White, the Navy SEAL, recalls one day when “some 19-year-old Ranger came and ordered him to cut an acre of grass.

And Pat just did it, he cut that grass, he didn’t complain. He could have taken millions of dollars playing football, but instead he was just taking orders like that.”

Mary Tillman says that’s how Pat would have wanted to be remembered, as an individual, not as a stock figure or political prop. But she also believes “Pat was a real hero, not what they used him as.”

For the moment, all that is left are the memories and the thick binders spread across Mary Tillman’s dining room table in San Jose. As she waits for the Pentagon investigators to finish their new probe, she wonders whether they will ask the hard questions. Like other family members, “I just want accountability,” she said. “I want answers.”

‘IT’S HARD TO KNOW WHAT TO BELIEVE’

That’s the lament of Mary Tillman, above, a teacher of special education in a San Jose public school. She has long pressed the Army to reopen its investigation into the friendly-fire killing of her son, Pat Tillman, in a canyon in Afghanistan on April 22, . The persistence of Mary Tillman and her former husband, Patrick Tillman, was rewarded when the Pentagon’s inspector general opened a new inquiry in August, the fourth such probe. Mary Tillman says she hopes questions created by discrepancies in past testimony will finally be answered.

STORY CHANGES OVER TIME

An officer in Pat Tillman's Ranger battalion who directed the first investigation into the soldier's death served as a witness on Nov. 14, 2004, in the third investigation, which was led by Brig. Gen. Gary Jones. The first investigator complained that the officers in charge of the second investigation had allowed Rangers involved in the shooting to change their testimony.

THREAT OF PERJURY CHARGES

An excerpt from a March 3, 2005, memorandum by Brig. Gen. Gary Jones describes how Capt. William Saunders, the commander of Pat Tillman's Ranger company, was threatened with perjury charges. Jones' memo said Saunders made false claims that he had informed his superiors that platoon commander Lt. David Uthlaut had protested orders given to him leading up to the incident. Despite this threat, Saunders was allowed to change his testimony and was granted immunity.

E-mail Robert Collier at rcollier@sfchronicle.com.

This article appeared on page A - 1 of the San Francisco Chronicle