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Germany: U.S. Pursues Risky Strategy In Terror Cases

The U.S. war against terrorism has suffered two legal defeats because of Washington's refusal to let a suspected Al-Qaeda agent testify in the trials of two men in Germany accused of helping hijackers involved in the 11 September 2001 attacks. One was acquitted, and a second was convicted but has won a new trial. RFE/RL spoke with legal and international security analysts about the cases.

Washington, 5 March 2004 (RFE/RL) -- Yesterday, Germany's Federal Criminal Court overturned Mounir el-Motassadeq's conviction for helping a group of hijackers involved in the 11 September 2001 attacks.

The ruling said the trial court did not adequately include in its deliberations the absence of Ramzi Binalshibh as a witness for the defense. El-Motassadeq's lawyers had said Binalshibh would have testified that their client knew the hijackers when they lived in Hamburg, Germany, but not what they were planning. Binalshibh is a Yemeni believed to have been the Hamburg cell's contact with Al-Qaeda.

The same statement from an anonymous source -- believed to have been Binalshibh -- contributed to the acquittal last month of another man suspected of helping the hijackers in Hamburg -- el-Motassadeq's friend, Abdelghani Mzoudi.

Yesterday's ruling was a reprieve of sorts for el-Motassadeq, a Moroccan, who had been sentenced to 15 years in prison upon his conviction. One of his lawyers, Gerhard Strate, speaking in Karlsruhe, Germany, looked toward the new trial this way: "The [Hamburg] court must retry the case with new judges. New evidence will be collected and possibly Mr. [Ramzi] Binalshibh's testimony will be included, which was missing here. Surely, the defense will ask for the arrest warrant to be lifted. I assume Mr. Motassadeq will be released from prison next week."

Rolf Hannich, a lawyer for the Federal Criminal Court, said it is too early to say exactly how the new trial will shape up, but added: "We will have to analyze the decision, and we will have to see what effects it will have on future crimes of comparable size. One thing is clear, though -- the hurdles for the judges have been put up."

Analysts interviewed by RFE/RL say that only U.S. Attorney General John Ashcroft, whose Justice Department is holding Binalshibh, knows whether he will be permitted to testify at el-Motassadeq's retrial. But they say they would not be surprised if he is again not made available.

Jim Phillips studies security issues at the Heritage Foundation, a conservative private policy-research center in Washington. He says he was surprised that Mzoudi was acquitted and that el-Motassadeq has been granted a new trial.

Speaking with RFE/RL, Phillips noted that a year ago, no one found it odd that el-Motassadeq was convicted of aiding the hijackers, even though Binalshibh was not available to testify. After all, he says, Binalshibh's connections to terrorism probably would have made him appear to be an unreliable witness.

"I don't think that they want to let [Binalshibh] go anywhere, regardless of where it is, but least of all put him on a plane to go all the way to Germany, where people might try to rescue him or he may try to get in contact with people. I think that they want to minimize the amount of damage he can do to other prosecutions, perhaps. I just don't see that putting him on the stand would help the defense, so I would really quibble with the German decision that that makes that much difference," Phillips said.

Given yesterday's court ruling, Phillips says it would be risky for the United States not to make Binalshibh available for el-Motassadeq's retrial. But that would be fairly common U.S. practice, according to Sean Murphy, a professor of law at George Washington University in Washington.

Murphy told RFE/RL that legal authorities at all levels in the United States often prefer to withhold information from some criminal cases for the sake of protecting the integrity of a more important case. "It might be another individual that they consider extremely valuable, and they don't want to make available and think that it will compromise the ability to interrogate and things of that sort. In other situations, there's sources and methods of intelligence gathering that are at issue, and you don't want to release that information into a court setting," he said.

Murphy says drug cases are a good example. Prosecutors often do not interfere with the activities of lower-level drug dealers as they try to gather enough evidence to convict their distributors and, ultimately, the boss of an entire narcotics ring.

Still, Murphy says, it is possible that the U.S. government might allow Binalshibh to testify, even if he is expected to say that el-Motassadeq was not aware of the hijackers' plans. He says prosecutors might be able to undercut his credibility during cross-examination.

But Murphy stressed that there is no assurance this would work. "There are things that courts provide in terms of cross-examination that can be very helpful, but we're dealing with an area here of terrorism, which doesn't fit neatly into the typical judicial processes or [the] aggressive law of war. You're sort of bouncing back and forth between the two," he said.

Murphy says Washington may eventually decide -- as it has in many other cases -- that it would rather keep Binalshibh and other suspected senior members of Al-Qaeda, and let lesser suspects like el-Motassadeq go free.