German 9/11 trial underscores need for better global cooperation

The supreme court rules Thursday on a case in which the US denied access to a key witness.

If convicted terrorist-cell member Mounir el-Motassadeq walks free Thursday from a German courtroom, he may have US security policy to thank.

Direct and respectful before his judges, Mr. Motassadeq is less well-known than recently sentenced 9/11 conspirator Zacarias Moussaoui, whose courtroom theatrics drew broad attention to his trial in the US.

But the dramatic legal odyssey of the first man ever tried in connection with the Sept. 11 attacks has been the focus of bitter recrimination between German and US officials, who have denied the case's lawyers access to statements from a key witness.

As both countries attempt to strike the right balance between national security and the rule of law, observers say the case is a prime example of why it will take better global cooperation to succeed in the war on terror.

"The information-sharing problem is the key to fighting international terrorism," says law professor Joachim Wolf of Ruhr University in Bochum. "This [case] has been a disaster. But even a disaster can be a first step for developing something."

Since Motassadeq's first trial opened in 2002, the Moroccan citizen's case has taken numerous turns: In 2003, he was found guilty of abetting the murder of 3,066 people. On appeal, he was declared wrongly convicted. In a second trial, he was sentenced to seven years for membership in a terrorist organization. This February, he was released on bond pending resolution of appeals. Thursday, the German Supreme Court is expected to issue a ruling that might clear Motassadeq of all charges, return him to prison, or grant him a third trial that could reinstate the accessory-to-murder charges.

The key question before the court is whether Motassadeq's second trial erred in sentencing him so lightly, given his close association with three of the 9/11 hijackers: Mohamed Atta, Marwan al Shehhi, and Ziad Jarrah.

A one-time roommate and a member of their Islamic study group in Hamburg, Motassadeq handled business affairs for the men while they trained at Al Qaeda camps in Afghanistan, then went there himself to train. When his friends left Germany to enroll in US flight schools, Motassadeq offered to look out for Mr. Jarrah's girlfriend. He paid bills from Mr. al Shehhi's bank account. He signed Mr. Atta's will.

All along, Motassadeq has maintained that one man could prove his innocence: Ramzi Binalshibh. Referred to by the 9/11 Commission Report as the fourth member of the Hamburg cell and a 9/11 plotter, Mr. Binalshibh was held in an undisclosed CIA facility from his 2002 capture until September, when he was one of 14 "high value" suspects moved to the US military prison in Guantánamo Bay, Cuba.

Since 2002, German courts have repeatedly requested access to Binalshibh. Despite numerous appeals, including two personal visits to the US by the German prosecutor, American intelligence services have refused, saying such a move would jeopardize national security.

Consequently, defense lawyer Udo Jacob argues, evidence that might have showed Motassadeq's innocence "was not considered, and I think this is a big fault in the sentence."

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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