WHEN THE BBC’s Newsnight broadcast an interview with two radical Islamists in the wake of the 7 July bombings, their claims that the attacks were "mujahideen activity" were seized upon by the national press.
"Silence the hate-mongers" was how the Daily Mail responded to the interview in which Abu Izzadeen, a radical British Islamist, claimed that he would also never inform on a fellow Muslim.
But as well as prompting debate in the House of Commons, the programme also attracted the interest of the police. Richard Watson, the journalist who had used his well-established contacts with British Islamist groups such as Al Ghurabaa to gain the interview, was contacted by the police.
Initially they expressed interest in the interview then, two weeks later, the BBC was served with a production order instructing it to hand over all material relating to the broadcast.
The police have requested material from the BBC and other broadcast news organisations in the past, but this request was unusual because the normal practice is for the police to request the material informally before obtaining an order.
What has also caused concern at the BBC is the fact that the order is unusually wide-ranging — demanding access not only to videotape but also "any other material documentation, notes or other videotapes which may be relevant to the programme and those interviewed that will assist the anti-terrorism branch in their investigations".
Watson fears that, if he agrees to the order, it would be damaging not only to Newsnight "but would also be damaging to the BBC and all independent journalism".
The order suggests the police expect to have wider-ranging powers once the new laws on terrorism are passed, believes David Jordan, chief political advisor at the BBC.
"It seemed to us that the police were in effect anticipating what was going to happen under the new Terrorism Bill, rather than on the provisions of current acts," he says.
Under the current Terrorism Act that came into force in 2000, journalists could already face five years in jail if they fail to hand over "as soon as is reasonably practicable" any information that could help the police catch a person involved in terrorism.
Five days after Watson’s Newsnight broadcast, the Prime Minister announced that there would be new anti-terrorist legislation. "The sort of remarks made in recent days should be covered by such laws," he said then.
If passed in its current form the Terrorism Bill will create new offences related to terrorism and will amend existing ones. It will be an offence to publish material that is a direct or indirect encouragement or inducement of terrorism.
Tony Blair suffered his first House of Commons defeat in eight years when lawmakers rejected proposals to allow police to hold terrorism suspects for 90 days without charge.
Having been debated in the House of Lords it was due to be returned to the Commons earlier this week.
Lord Goodhart, a Liberal Democrat peer, believes that the most dangerous aspect of the proposed bill is the introduction of the matter of recklessness.
"Under the law as it is likely to come into force, the offences of either publishing or disseminating a terrorist statement will be dependent on either intent or recklessness.
"I have no problem with intent, but the real problem is with recklessness, which is when you know that what you are publishing may encourage some of the people who hear or read it to terrorism," he says.
The introduction of a new law making it an offence to knowingly attend a place used for terrorist training would have a significant impact on journalists, who could face prison sentences of up to 10 years simply for visiting a training camp — Clause 8 of the bill makes it clear that it is immaterial whether the person receives the instruction or training.
The BBC’s Frank Gardner and John Simpson have visited training camps in the course of their work and both recently spoke out against the proposed law.
The Observer’s Jason Burke, the author of Al Qaeda: the true story of radical Islam, has been to terrorist training camps in Afghanistan and Pakistan, and is critical of the new law.
"It is a terrible indictment of our much vaunted security services if they have to go to grubby hacks to get their information," he says.
Burke is adamant that if he were invited to go to a training camp again and could ensure his safety, he would go — despite the proposed legislation.
"Why do they need information on journalists whose resources are their position, a pen, a notebook and a phone?" asks Burke. "That’s what I would worry about and that’s what I would hope a judge would ask."
Not all journalists agree that the proposed legislation is a risk for the profession. Ian Kirby, political editor of the News of the World, believes the legislation surrounding the reporting of terrorism is straightforward. "You write what you can within the bounds of the law and if you go over the top, then you get noticed. I don’t think that’s any great surprise," he says.
Kirby argues that it’s a journalist’s responsibility to know what they can and can’t write before they start, rather than complaining afterwards that they were badly informed or that information wasn’t there.
"Any decent newspaper will have a lawyer to advise you on those things," he says. "I know some papers such as The Guardian and The Independent have complained about this, but I think it has more to do with the quality of their legal coverage than anything else."
But Jason Burke believes the new laws reflect the Government’s obsession with shooting the messenger.
"Whether that messenger be an overzealous Al Jazeera or a British journalist who interviews a terrorist — all of these measures are designed to prevent the broadcasting of the terrorist word. That will never work," he says.
"To focus merely on the messenger strikes me as a diversion. It’s an evasion of the real structural causes that lie at the root of the threat that faces all of us," he adds.
Five months since the production order was issued, the BBC remains in its fight with the police to resist it. Next week the case will be heard at Middlesex Guildhall Crown Court.
Watson says that the order is essentially a trawling exercise, and that if he were to agree to its terms, then all of his research on Al Ghurabaa over the past five years could be up for scrutiny because it may assist the police. "That turns us from independent journalists into agents of the police. In terms of the damage to the credibility and independence of the BBC it would be astonishing," he says.