German 9/11 trial underscores need for better global cooperation

In Motassadeq's first trial, a Hamburg court convicted him on the basis of other evidence – evidence which "could hardly have been poorer," wrote University of Erlangen-Nürnberg law professor Christoph Safferling in a 2004 article.

But in February 2004, the same court acquitted Motassadeq's friend, Abdelghani Mzoudi, of identical charges for lack of evidence. The following month, Motassadeq's conviction was overturned.

These developments drew an outcry from the German press. Judges raged, and federal prosecutor Kay Nehm criticized US lack of cooperation as "incomprehensible." American critics countered that German courts were soft on terrorists.

"I think what is difficult for Americans to understand is how important it is to Germans to keep up the rule of law after the Nazi era," says Loammi Blaauw-Wolf, a lawyer who analyzed the decisions for the German Law Journal. "Even if it's a terrorist, or somebody suspected of such serious crimes, they are always willing to give him the benefit of the doubt and to give him a fair trial."

When Motassadeq's second trial began later that year, the US provided the court six pages of summarized statements by Binalshibh and two other men in their custody – Khalid Sheikh Mohammed and Mohamedou Ould Slahi. The summary indicated that Motassadeq had no knowledge of the 9/11 plot.

Although they eventually entered the pages into evidence, German courts were hesitant to do so. There was no way to prove, judges argued, that the statements had not been extracted under torture. The US declined to elaborate on the circumstances under which they were taken.

"This was a very uncomfortable situation," says Dr. Wolf, "uncomfortable for German judges, and for German laws as a whole." Lawyers in the case also expressed reservations about the evidence.

"I don't know if it's trustworthy or not," says attorney Sven Leistikow, who represents 9/11 victims' families. "For me as a European, that's not something I can work with. It's like something from the Inquisition."

Considering the countries' joint histories, says Dr. Blaauw-Wolf, judges' concern with strict fidelity to the Geneva Conventions should come as no surprise. After all, she says, it was America's own Marshall Plan that brought the rule of law to Germany. This week, human rights groups filed suit in Berlin against high-ranking US officials, including outgoing Defense Secretary Donald Rumsfeld, for authorizing torture at Abu Ghraib prison in Iraq.

Now, prosecutors in the Motassadeq case claim they have new evidence that could secure a fair verdict. Some observers wonder whether the US will allow Germany access to Binalshibh, now that he has requested a lawyer. US State, Justice, and Defense Department officials declined to comment on the possibility. Policy analysts have argued that disclosing such intelligence information in court runs the risk of exposing sensitive sources, or of transmitting key information to terrorists not yet apprehended.

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