German Court Criticizes U.S. for Withholding Evidence

Mounir al-Motassadeq, 31, was convicted yesterday in a German court of being a member of an al-Qaeda cell. He was acquitted on the charge he was involved in the 9-11 attacks. This was Motassedeq's second trial. At his first trial, he was found guilty of helping to prepare for 9-11 and sentenced to 16 years, but the conviction was reversed on appeal because the U.S. failed to provide potentially exculpatory information from alleged 9-11 participant Ramzi Binalshibh and others whom the U.S. has been holding in secret, foreign detention facilities for a few years.

For the re-trial, the U.S. said it would provide summaries of interviews with Binalshibh.

In a three-hour judgment, read out before a court in Hamburg, Judge Ernst-Rainer Schudt said that the US Justice Department had refused to co-operate fully with the German court. “How are we supposed to do justice to our task when important documents are withheld from us?” the judge asked.

Although Washington did send transcripts of interviews with two al-Qaeda members in American custody, Judge Schudt complained that the testimony was incomplete and that the two witnesses should have been interviewed in person.

In Motassedeq's case, the German paper Die Zeit reports that the little bit of information from Binalshibh exonerated him of participation in the 9/11 attacks. This is the same argument Zacarias Moussaoui has been making for years. How can he get a fair trial, particularly on the issue of the death penalty, when Ramzi Binalshibh, among others, reportedly has favorable evidence to provide that would show he was not involved in the 9-11 attacks?

If a German court can see the unfairness of denying the defendant the opportunity to invterview those with favorable information, as did the trial judge in the Moussaoui case, why didn't our Supreme Court?

The other issue of course is whether the information from a prisoner who has been secretly detained abroad - and likely tortured - is even credible. From the Die Zeit article (English version):

In February 2003 a different Chamber of the Superior Court agreed with the prosecution's arguments. What Motassadeq had done, the court judged, was not normal friendly cooperation among Arab students, but rather a criminal conspiracy. The sentence at the time was 15 years in the penitentiary. However, the following spring the Federal Court reversed the conviction and referred the case back to Hamburg for a new trial. The charges that Motassadeq was an accomplice to the deed, according to federal judges, "may be, in and of themselves, sustainable" - but the State Superior Court had not heard the possibly decisive evidence that could have exonerated him.

What the federal court was referring to was testimony of presumed al-Qaeda chief planner, Ramsi Binalshib. The Yemeni Binalshib has been in U.S. custody since September 2002. For reasons of "national security" the U.S. Government refuses to allow German judicial officials to question the man. What the Hamburg Court got in lieu thereof was a short fax with a summary of interrogation transcripts, which, in the words of the defense, was "evidence that is unique in the history of justice."

Where and, above all, how these summaries came about is unclear. The suspicion that Binalshib could have been tortured in Guantanamo or elsewhere seems reasonable. Appropriate inquiries by the Court of the German Ministries of Justice and of the Interior as well as of the Office of the Federal Chancellor yielded the response that the Federal Government could say nothing on the subject. Passing on information on U.S. interrogation conditions would "lead to a disruption of international diplomatic relations and the relationships among intelligence services."

Although the Binalshib-fax exonerated the accused, Motassadeq, the fundamental issue of whether or not testimony that may have been acquired under torture is admissible in German courts remains unanswered. After all, in the next, similar trial it could be a matter of testimony that incriminates the accused. Nevertheless, the Hamburg Superior Court decided that such evidence may be used. After all, the testimony was not proven to have been acquired under torture. In its decision, the Hamburg Superior Court put astonishingly little weight on principles of the rule of law. With Guantánamo in mind, the Court determined that excluding evidence can only be considered in cases of "especially serious cases of violations of human rights" and "simple imprisonment and segregation from outside contacts as well as the denial of a regular judicial process … for the period of less than three years, which can be assumed in this case … are not yet included as such a violation."

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    Re: German Court Criticizes U.S. for Withholding E (none / 0) (#1)
    by DawesFred60 on Sat Dec 17, 2005 at 01:02:33 PM EST
    no joke?..so what's new? anyway what was the german court doing some times back with evidence about germans here who are muslims? and how many islamists live in that part of the world who are doing business? with who?..Iran!... so were is the responsibilty for laws? this claim is a joke.

    Re: German Court Criticizes U.S. for Withholding E (none / 0) (#2)
    by john horse on Sat Dec 17, 2005 at 01:02:34 PM EST
    Could somebody explain this. The Bush administration claims that they need secrecy and less constitutional restraints in order to combat terrorism. Yet the case against a member of Al Queda for being involved in the planning of the 9/11 attack on the Twin Towers is dismissed because the Bush administration refuses to provide the German courts with documents. It seems to me that a policy that results in cases being dismissed against terrorists and/or less serious charges being filed is counter productive.

    Re: German Court Criticizes U.S. for Withholding E (none / 0) (#3)
    by squeaky on Sat Dec 17, 2005 at 01:02:34 PM EST
    JH-It depends what you mean by counter productive. My take on this apparent paradox is that there may be self-incriminating aspects to Us sharing docs here ergo it is more productive to keep them secret.