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Attorneys move keeps terror tape under wraps

Pursuit of three suspects' release on bail comes to a halt

Attorneys for three alleged al-Qaida suspects have decided not to seek bail for their clients at this time.

In an unusual move, attorneys for Patrice Lumumba Ford and brothers Ahmed Ibrahim Bilal and Muhammad Ibrahim Bilal withdrew their requests after the bail hearings already had begun.

The change means the earliest a secretly recorded audiotape Ñ of a fourth suspect allegedly threatening to harm Portland Jews Ñ can be made public is sometime next year. According to federal prosecutors, an informant taped Jeffrey Leon Battle talking about his desire to attack a Portland synagogue or Jewish schools with assault rifles.

Prosecutors had wanted to play the tape at the bail hearings for Ford and the Bilal brothers Thursday afternoon. But attorneys for the Bilals withdrew their requests for the hearings Tuesday morning. Ford's attorney apparently withdrew his request after the judge handling the cases ruled the hearings would be open to the public later Tuesday.

U.S. District Judge Robert Jones formally canceled all three hearings Wednesday.

Although the attorneys could request new bail hearings at any time, the maneuvering probably means the tape will not be played until the defendants go to trial next October.

Jones probably will have to rule on the admissibility of the tape before then, however. The defense attorneys are expected to formally challenge the legality of the tape during the pretrial stage of the cases.

The tape was recorded by Khalid Ibrahim Mostafa, a former U.S. Drug Enforcement Administration informant who was recruited by the Portland FBI's Joint Terrorism Task Force last spring. Mostafa was brought into the investigation after four of the suspects, who authorities say attempted to enter Afghanistan, returned home.

According to court records, Mostafa taped Battle and Ford talking, among other things, about their plans to fight the American forces trying to topple the Taliban government.

Unusual proceedings

This week's legal maneuverings were just the most recent moves in a series of unusual proceedings in the highly publicized case.

Six current or former Portland residents were charged Oct. 4 with conspiring to provide material support and services to al-Qaida and conspiring to wage war against the United States in Afghanistan. In addition to Ford, Ahmed Bilal, Muhammad Bilal and Battle, they are October Martinique Lewis, Battle's ex-wife, and Jabis Abdulla Al Saoub, who remains at large.

The detention hearings originally were assigned to Janice Stewart, a U.S. magistrate judge assigned to handle bail hearings and other routine pretrial matters.

Stewart ruled that Lewis should be released on bail Oct. 10. But federal prosecutors appealed that ruling to U.S. District Judge Ancer Haggerty, who reversed her the next day and ordered that Lewis remain in custody.

Prosecutors mentioned the audiotape during Lewis' hearing, citing it as proof the defendants pose a threat to the community.

Battle's attorney withdrew his request for a bail hearing after prosecutors revealed the existence of the tape. Attorneys for Ford and the Bilal brothers then requested that the bail hearings be closed to the public to prevent the release of information prejudicial to their clients.

Attorneys for the Portland Tribune, The Oregonian and The Associated Press challenged the request, arguing that the public's right to know outweighed the defendants' desire to prevent the release of potentially incriminating information.

Stewart took the matter under advisement, but Jones moved before Stewart issued her ruling. He was assigned the case Nov. 5, and a week later he ruled that the bail hearings would be open.

Open-hearing advocate

Attorney D. Joe Willis, representing the Tribune in the matter, said Jones may have been bothered that Stewart was essentially conducting a closed discovery hearing. Willis said the senior federal judge has long championed open court hearings.

A courthouse source who asked not to be identified said Jones has a history of allowing all relevant information to be entered into evidence and hasn't closed a hearing in his 39 years on the federal bench.

Attorneys for two of the suspects actually withdrew their requests for bail hearings before Jones issued his ruling. In a letter faxed to the judge Tuesday morning, Daniel Feiner and Andrew Bates said, 'We anticipate that any detention proceeding concerning our clients will involve common witnesses and release plans.'

Feiner represents Ahmed Bilal; Muhammad Bilal is represented by Bates. Feiner later told the Tribune he may request another bail hearing.

The third attorney withdrew his request for a detention hearing after Jones' ruling. Whitney Boise, who represents Ford, informed Jones of his request orally.