As Germany tries to figure out whom to blame for a Hamburg court's acquittal last week of a Moroccan man accused of helping the Sept. 11 hijackers carry out their deadly plot, an unlikely culprit comes up: the United States.
Pointing to a bitter irony in the global war against terrorism, many commentators and legal experts say it is the decision by US authorities to withhold key evidence from the Hamburg trial of Abdelghani Mzoudi that left the court no choice but to acquit.
"This is no cause to rejoice," said Judge Klaus Rühle, when he announced the verdict to Mzoudi Thursday. "You are acquitted. Not because the court is convinced of your innocence, but because the evidence was not sufficient for a conviction."
The Hamburg ruling highlights a crucial difference in the approach taken by Germany and the US in the global war on terrorism. "We are more focused on prosecuting terrorists, while the United States is mainly concerned with preventing terrorism," says a senior German intelligence source.
Washington defends its position that it does not want to air in public courts the intelligence gleaned from interrogation of suspected terrorists. The fear, say security analysts, is that allowing key terror suspects to testify openly in court could allow them to divulge information and send messages to their comrades. It would create a security risk.
But, as Judge Rühle commented while explaining his reasons for acquittal, the court must treat all defendants with the same standards - there cannot be a separate standard for suspected terrorists.
During the trial, and in a previous trial of a convicted helper, Mounir el-Motassadeq, the court had asked the US to allow key witnesses to testify. The court wanted to hear testimony from alleged Sept. 11 mastermind Khalid Sheik Mohammed and another alleged Hamburg cell member, Ramzi Bin al-Shibh - or to at least read full transcripts of their testimony in US custody. The US refused.
On Dec. 11, a turning point in this, the world's second major Sept. 11 trial, the US released a document containing heavily edited testimony by Mr. bin al-Shibh. In addition to being incomplete, the document also contained the allegation by bin al-Shibh that Mzoudi did not know about the Sept. 11 plot.
Frustrated, Rühle released Mzoudi on his own recognizance. It became clear at that point that if the prosecution could not produce hard evidence of Mzoudi's guilt, which would be nearly impossible without the testimony of key witnesses, the court would acquit.
Mzoudi, a Moroccan who studied electrical engineering in Hamburg and once shared an apartment with alleged lead hijacker Mohammed Atta, listened with a meek smile as the judge spoke. Ironically, he was being protected by the legal safeguards of a liberal society that Mr. Atta and his cohorts despised and wanted to destroy.
"We regret the court's decision to acquit Mzoudi," said State Department spokesman Steven Pike, adding that the US had cooperated with Germany in the case as much as possible.
The court decision has caused an uproar in Germany. Kay Nehm, Germany's top federal prosecutor, told reporters he found the US conduct during the case "incomprehensible," adding: "There will have to be a change of thinking in the United States, because clearly people there will now be asking why the German proceedings against Mzoudi ended this way."
The German court's decision was based on the requirement to prove guilt beyond a reasonable doubt. But the chain of evidence was so weak that it left a reasonable doubt about whether Mzoudi knew about the Sept. 11 plot. It was proved that he was in terrorist training camps in Afghanistan. But that was not a crime that he was charged with. He transferred money to pay for flying lessons for one of the pilots. But the court was not convinced that he knew that his associate was training to fly a death machine.
"The US itself is responsible for these doubts," wrote Heribert Prantl, a leading opinion writer at the Süddeutsche Zeitung, a daily newspaper based in Munich. "US authorities behaved as though guilt and verdict were clear on the basis of America's will and that the German court merely had to rubber stamp [the decision]."
The next development could be a ruling by Germany's appeals court in March to overturn the conviction of Motassadeq, who was sentenced to 15 years in jail as an accessory to murder and for belonging to a terrorist group. Motassadeq was tried by a different Hamburg judge from Mzoudi. The appeals court has already expressed concern about the court's ruling on evidence in the case.