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German Court Orders Retrial for 9/11 Suspect

Conviction of Moroccan charged with aiding the hijackers is overturned because of the lack of testimony from a witness in U.S. custody.

March 05, 2004|Jeffrey Fleishman and Dirk Laabs | Special to The Times

KARLSRUHE, Germany — An appeals court overturned the only conviction in the Sept. 11, 2001, terrorist attacks and ordered a new trial, citing the lack of testimony from an alleged Al Qaeda operative in U.S. custody.

Mounir Motassadeq was convicted last year and sentenced to 15 years in prison as an accessory to more than 3,000 counts of murder in New York, Washington and Pennsylvania

But the German appeals court ruled that the case against the Moroccan was marred because the judges reached a verdict without carefully considering that the court had not heard from a crucial witness.

The witness is Ramzi Binalshibh, a suspected Al Qaeda lieutenant believed to have intimate knowledge of the Hamburg, Germany, cell behind the hijackings. The United States, which is holding Binalshibh, refused to provide transcripts of his interrogation. That led Motassadeq's lawyers to appeal the verdict, claiming that Binalshibh would have exonerated their client.

The appeals court's ruling was the second major setback for German prosecutors in terrorism trials. Another Moroccan, Abdelghani Mzoudi, was acquitted last month of similar charges when the United States refused to release sensitive intelligence.

The Mzoudi case and the prospect of Motassadeq's retrial underscore German legal authorities' frustration with U.S. secrecy and the difficulties of piercing terrorist networks and building criminal cases.

"The fight against terrorism cannot be a wild war without rules," presiding Judge Klaus Tolksdorf said in announcing Motassadeq's retrial. "A conflict between the security interests of the [state] and the rights to defense of the accused cannot be resolved to the disadvantage of the accused."

The judge said the trial court erred but added that Motassadeq was a radical Islamist "far from being beyond suspicion."

The defendant, who is imprisoned in Hamburg, was not in court Thursday. His lawyer, Josef Graessle-Muenscher, said of the ruling: "It is a good decision, and it shows that Motassadeq was sentenced in an unjust way.... If there is nothing dramatically new at the retrial, Mr. Motassadeq must be acquitted."

The United States and Germany hailed Motassadeq's highly publicized arrest in November 2001 as a crucial test of prosecuting Al Qaeda members. The electrical engineering student studied in Hamburg and was friends with Mohamed Atta. Motassadeq was convicted as an accessory to murder after testimony that he had trained in an Al Qaeda camp, wired money to at least one terrorist operative in the U.S. and provided other logistical support to the hijackers.

Mzoudi faced similar charges. He was acquitted after the court learned that an unidentified witness -- reportedly Binalshibh -- had told U.S. investigators that the Hamburg cell comprised only four members: Binalshibh, Atta and hijackers Marwan Al-Shehhi and Ziad Samir Jarrah.

The Binalshibh statements, according to Graessle-Muenscher, "say that neither Mzoudi nor Motassadeq took part in preparing the 9/11 attacks."

The appeals court acknowledged that the Motassadeq case placed the German legal system in a sensitive predicament. U.S. intelligence services, which shared the Binalshibh interrogations with their German counterparts, did not want the transcripts made public for national security reasons. But, the court said, the lack of disclosure prevented prosecutors from gathering enough evidence to sustain a conviction.

Tolksdorf questioned why the U.S. allowed an FBI agent to testify against Motassadeq but blocked Binalshibh's statements. "I don't want to speculate that the U.S. did this to assure the desired result of the trial," the judge said. German authorities should attempt to have the Binalshibh transcripts introduced at the retrial, he said.

German Interior Minister Otto Schily said the court's "decision is regrettable, but it is actually just a hand-back to the criminal court in Hamburg."

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