Does alleged sleeper cell belong behind bars?

Prosecutors say possession of a widely circulated document on the Internet about suicide bombings should be enough to keep in jail six New York men charged with being part of al-Qaida.

By Eric Boehlert

Published October 2, 2002 4:39PM (EDT)

There's been another twist in the case against the six Buffalo, N.Y., area Arab-American men charged last month with being members of an al-Qaida sleeper cell. After already holding an unusually long, three-day bond hearing on the case (most last just three hours), a federal magistrate judge was expected to finally rule Thursday on whether the men were to be held without bail until trial.

But now he's postponed that decision thanks to some provocative, last-minute evidence presented by prosecutors -- evidence that, put in its proper context, seems to have questionable relevance to the terrorism allegations the men face.

Late last month, in their final attempt to convince the judge to deny the men bail, prosecutors reported that after searching the home of one of the six men, Yasein Taher, investigators discovered a document that advocates suicide bombings. Citing portions of it, Assistant U.S. Attorney William J. Hochul Jr. suggested it represented "clear and convincing" evidence that Taher and his associates are a danger to the community and should be denied bail. Another anonymous law enforcement official told the Buffalo News the document was "chilling" and "scary."

Prosecutors admitted they did not know who wrote it, and rather than submitting the entire paper to the judge, they quoted only four paragraphs. One of them, referring to suicide bombings, read in part: "As for the effects of these operations on the enemy, we have found, through the course of our experience, that there is no other technique which strikes as much terror into their hearts, and which shatters their spirit as much."

The document itself is hardly a secret, though, or hard to come by. Often titled "The Islamic Ruling on the Permissibility of Martyrdom Operations," the anonymous thesis is widely available online; a Google search produces dozens of mentions. Rodney Personius, Taher's attorney, confirms Taher obtained his copy off the Internet.

In the post-9/11 environment, the passages certainly do contain chilling and scary sentiments. But the document in question has little to do with Osama bin Laden's sleeper cells. Instead of addressing al-Qaida's activities against America, or even suicide bombings in Israel, the document's focus is mujahedin soldiers, and specifically Muslim rebels battling Russian forces in Chechnya: "As for the enemy, their losses are high, and the most crucial concentration of Russian forces in Chechnya was completely destroyed."

Another passage points toward a wartime application of martyrdom attacks and notes, "[One] technique is for an armed Mujahid to break into the enemy barracks." There's also a mention of Russian President Vladimir Putin, as well as "Russia's Home Affairs and Defense Ministers."

"It's clearly focused on the Chechnya/Russia situation," says Personius. He wonders if that's why prosecutors did not submit the paper in full to Judge Kenneth Schroeder, who is deciding the Buffalo terrorism case. "Why use selective citations? Why not let him see the whole thing? I think it shows the paucity of evidence against [the defendants], and how the government will take anything they can get their hands on and use it selectively," says Personius. He notes prosecutors alerted the judge about the suicide document in a filing last Friday, but Personius didn't receive a complete copy until late Monday afternoon, after making repeated calls to the prosecutor's office. A spokeswoman with the U.S. Attorney's Office in Buffalo declined to comment.

The document dispute is just the latest puzzle in the high-profile case. The first since 9/11 to target U.S.-born citizens allegedly plotting terrorist acts at home, the arrests generated headlines around the world and have been touted by law enforcement as a key strike in the war on terrorism. Federal prosecutors claim the men from nearby Lackawanna, N.Y., attended Osama bin Laden's al-Qaida terrorist training camp in the spring of 2001 and then returned home to await instructions for a possible strike on American soil.

"We have identified, investigated, and disrupted an al-Qaida-trained cell on American soil," reported U.S. Deputy Attorney General Larry Thompson, at one of two Sept. 14 press conferences announcing the arrests. Michael Battle, the U.S. attorney for Buffalo, even suggested the men, who are American citizens, could one day face charges of treason -- and the death penalty -- in connection with the case.

Taher, along with his American-raised colleagues, might seem unlikely suspects for treason. The 24-year-old has a wife and a 3-year-old daughter, and was formerly the Lackawanna High School soccer star voted "friendliest" in his graduated class of 1996.

Prosecutors admit they don't have any evidence the men were actively plotting an attack, stockpiling weapons, receiving overseas payments or keeping in contact with al-Qaida. Instead, they are charged with attending the al-Qaida camp, which under the 1996 anti-terrorism act, is illegal since the State Department had designated al-Qaida a terrorist organization. They are charged with giving "material support," specifically "training" and "personnel," to terrorists. The men originally traveled to Pakistan last year on a religious studies trip with Tablighi Jamaat, described as a sort of Muslim version of the Jehovah Witnesses group, before taking a side trip to Afghanistan.

Should the men be kept behind bars until their trial? In today's war on terrorism, the accusation of being part of an al-Qaida sleeper cell would almost certainly mean defendants would be denied bail. Buffalo prosecutors argued it was imperative to avoid another bloody 9/11-type attack. But during the three-day bond hearing the judge expressed skepticism about whether the government had proven the men pose a real threat.

"I haven't seen anything that shows me convincingly or with clarity that these men were preparing or planning any acts of harm," said Schroeder. "I haven't heard of any act of violence or propensity of violence in the history of these individuals."

Trying to prove the men were preparing acts of harm, prosecutors initially played up a cryptic e-mail sent by one of the defendants. It read in part, "The next meal will be very big, no one will be able to withstand it." Prosecutors suggested "the next meal" was code for the next al-Qaida attack. Yet two days later during his closing argument before the judge, federal prosecutor Hochul made no mention of the "big meal" e-mail.

Will the suicide-bombing document fit the same pattern? Based on various interpretations of Islam's holy book, the Quran, the exhaustive, 8,000-word paper suddenly in the spotlight ponders many wartime questions, such as "the issue of killing Muslim prisoners whom the enemy has used as a human shield." Also addressed is how martyrdom attacks can be rationalized in the light of Islam's condemnation of suicide.

But the document's clear emphasis is on suicide attacks, or "plunging into the enemy and attacking alone even when death is certain." At the outset it declares, "Not every martyrdom operation is legitimate, nor is every martyrdom operation prohibited." The essay, though, is clearly in favor of the practice, under certain conditions: "We have arrived at the conclusion that martyrdom operations are permissible," before adding, "We should point out that this topic needs a much more expansive study."

It's hard to say who wrote the religious ruling, or fatwa. As pointed out by As'ad AbuKhalil, professor of politics at California State University at Stanislaus, Islam does not have a central figure of power like the pope or a rule-making body such as the Vatican. While an Islamic religious lawyer, or a mufti, may issue a fatwa, that does not stop others from doing the same. "Basically, any Muslim can offer up an opinion and then try to convince others that he's right," says AbuKhalil. "That's how bin Laden got into the business of issuing fatwas."

On Thursday, Judge Schroeder may decide, in part, whether downloading a document that debates suicide attacks proves terrorist ties.

Eric Boehlert

Eric Boehlert, a former senior writer for Salon, is the author of "Lapdogs: How the Press Rolled Over for Bush."

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