Americans refused to supply evidence
BERLIN From the point of view of many Americans - and certainly of many irritated officials in the Bush administration - the fight against international terrorism received a sharp setback when a German court acquitted a major Al Qaeda suspect, who was only the second man to come to trial in connection with the September 11 attacks in New York and Washington. But, from the German point of view, the acquittal Thursday of the defendant, Abdelghani Mzoudi, a 31-year-old Moroccan who was indisputably a member of the Al Qaeda cell in Hamburg that furnished several of the September 11 leaders, can be laid directly at the feet of the United States, which persistently refused to provide the cooperation needed for a conviction.
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That hardly promises to improve the tenor of relations between Germany and the United States, just at a time when the two countries have been trying, with some success, to warm up ties virtually frozen in distrust and hostility because of disagreement over the Iraq war.
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Beyond that, the Mzoudi acquittal signals the difficulties and ambiguities that are bound to surround efforts to get convictions of Al Qaeda members in democratic civilian courts. The Mzoudi trial was one in which, from the prosecution's standpoint, almost everything went wrong, and there is no assurance that there was any way, given German laws and trial procedure, for matters to have come out right from the point of view of the prosecution or the United States.
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Indeed, as a consequence of the Mzoudi trial, there is now a strong possibility that the only man convicted for involvement in the September 11 plot, Mounir el-Motassadeq, another presumed member of the Hamburg Al Qaeda cell, will be released when he presents an appeal in a few weeks.
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In Germany the morning after the Mzoudi acquittal, most commentators held the United States primarily responsible for the court's decision, which they saw as lamentable but unavoidable given the circumstances.
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"A significant part of the blame for this lies with the U.S. authorities," the business newspaper Handelsblatt editorialized Friday. "They have dedicated themselves to a war against terrorism, but withheld an important witness in this and the Motassadeq trial. In the latter trial this could even lead to a successful appeal."
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Certainly from the German point of view, there is something strangely, frustratingly counterproductive in the Americans' behavior, which has been to demand ever higher levels of cooperation from its allies in the antiterrorism fight even as the United States has rejected virtually all German requests for cooperation in the prosecution of Mzoudi.
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"I find this conduct by the United States incomprehensible," Kay Nehm, the German chief federal prosecutor, was reported to have said Thursday following Mzoudi's acquittal.
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The prosecution's case against Mzoudi disintegrated essentially over the refusal by the United States to find a way to satisfy the Hamburg court's request for access to information gathered during interrogations of captured Al Qaeda suspects. As the trial of Mzoudi unfolded late last year, the presiding judge, Klaus Rühle warned that he might have to dismiss the case altogether if the requests for intelligence information were ignored.
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This led Germany's Federal Criminal Office, a rough equivalent of the FBI, to what seems to have been a compromise formula, though it was a compromise that turned out to be a boon to Mzoudi's defense. The German police submitted a letter to the court that summarized intelligence information it had earlier received from the United States, specifically a statement by a leading Al Qaeda member made to American interrogators that neither Mzoudi nor Motassedeq was aware of the specifics of the September 11 plot.
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The name of the Al Qaeda member was not released, but just about every observer of the trial assumed it was Ramzi bin al-Shibh, one of the top planners of the September 11 attacks. He is now in American custody.
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Following the release of the police letter, Rühle ordered that Mzoudi be released for the rest of his trial, an action whose portent was clear: Unless the court were given a chance to further examine Bin al-Shibh's testimony, Mzoudi would be acquitted. Responding to that pressure, according to the German magazine Der Spiegel, Interior Minister Otto Schily personally appealed to the American attorney general, John Ashcroft, for some way to satisfy the Hamburg court's demand, but he was rebuffed. The German Interior Ministry has not confirmed the Der Spiegel report.
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Given the American refusal, prosecutors had to hope that other evidence against Mzoudi would convince the court of his guilt, and there was other evidence. For example, early in the trial, an Al Qaeda informant testified that both Mzoudi and Motassedeq attended an Al Qaeda training camp in Afghanistan, and it could be assumed that any graduate of an Al Qaeda training camp was a willing and enthusiastic warrior in the cause of the Al Qaeda leader, Osama bin Laden.
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In addition, the prosecution showed that Mzoudi was once a roommate of Mohammed Atta, operational commander of the September 11 plot in the United States, and that he had helped with financial transactions that were part of the plot. Still, the problem for the prosecution was that there was no smoking gun refutation of Bin al-Shibh's exculpatory assertion regarding Mzoudi.
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Would an opportunity to cross examine Bin al-Shibh or, at least, to examine the full transcript of his interrogation have led to a guilty verdict? Nobody will every know the answer to that question. It is possible that there would be enough contradictory material in the Bin al-Shibh interview to allow the court essentially to disregard his assertions regarding Mzoudi's innocence. There is, of course, no assurance that this would have happened, and then the Americans would have made an exception to their rule against making intelligence information public and still not have gotten a conviction of Mzoudi. Still, in refusing to find a way to grant the German court's request, the United States essentially stood by while an Al Qaeda suspect went free, even as it perplexed German officials doing their best to help in the antiterror battle
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