HAMBURG, Germany—There's no dispute that Mounir el Motassadeq was close to the men who carried out the Sept. 11, 2001, terrorist attacks on the Pentagon and the World Trade Center.
He spent three months at an al-Qaida training camp in Afghanistan. He lived near lead hijacker Mohammed Atta in Hamburg, Germany, and signed as the witness to Atta's will. He held power of attorney over the bank account of another hijacker, Marwan al Shehhi. He transferred $2,500 to plotter Ramzi Binalshib. He even sent money to the United States used to help finance the hijackers' pilot training.
German authorities charged him with 3,066 counts of accessory to murder, and in February 2003, he was convicted—the first person to stand trial for the Sept. 11 attacks.
But that conviction was overturned by a German appeals court in 2004. Earlier this year, he was ordered released pending resolution of the appeals.
Now Motassadeq, who is free on bond, is about to learn whether U.S. security policy will help him walk away from criminal charges in the worst terrorist attack in American history.
A German court on Thursday will begin a hearing into whether the accessory to murder charges should be restored. The German government is seeking a third trial in the matter. Among the issues is whether the United States will allow German attorneys to question two key figures in the Sept. 11 plot—alleged mastermind Khalid Sheikh Mohammed and co-conspirator Ramzi Binalshib.
At the time of Motassadeq's trials and appeals, Mohammed and Binalshib were being held in secret at an undisclosed location by the Central Intelligence Agency. Despite two visits to the United States by the German prosecutor, U.S. officials declined to make the two men available for questioning.
But in September, Mohammed and Binalshib were transferred to U.S. military custody and are now being held openly with other terrorist suspects at the U.S. naval station at Guantanamo Bay, Cuba.
Representatives of the International Committee of the Red Cross have traveled there to talk to the men, and U.S. military attorneys will soon be appointed to represent them under a just-passed law authorizing the Bush administration to try them and other terror suspects before military tribunals.
It's unclear, however, whether the military will make Mohammed and Binalshib available to assist in Motassadeq's case. The German prosecutor's office won't comment on whether it will renew efforts to question them—German law forbids prosecutors from commenting outside of court—and spokesmen for both the U.S. Justice Department and the Pentagon said they had no information on the subject.
German prosecutors, however, say they'll ask the court to reinstate the accessory to murder charges. They'll argue that even though Motassedeq may not have known precisely when and what Atta and his companions were planning, he knew enough to be found guilty of helping them.
"We have reason to come back to the accessory to murder charges dismissed in the previous trial," said one prosecutor on condition of anonymity. "What needs to be clarified is to what degree is someone involved who may not have known the venue, time and dimension of the planned crime, but was aware of the plan being made."
Whether testimony from Mohammed and Binalshib would help prosecutors convict Motassadeq is unclear—one of the issues in this case is that he claims it would clear him.
Mohammed is believed to have first suggested the hijacking plan to Osama bin Laden. Binalshib, who roomed with Atta in Hamburg, is suspected of becoming the plot's principal logistician after the U.S. refused him a visa, eliminating him as a potential hijacker.
Motassadeq says their testimony will show that he knew little of the plot. His first trial statements that the CIA delivered to the prosecutors appeared to confirm this.
Even so, the court refused to accept the statements after Motassadeq's attorney suggested they might have been the result of torture. U.S. officials declined then to discuss the conditions under which the two men were questioned, and an FBI agent, Matthew Walsh, didn't help the case when he was dispatched to testify.
At the time, the judge expressed frustration that Walsh "was not particularly helpful" as he primarily testified that information sought in the case was "not available" or that he was "not authorized to answer such questions."
Any future German questioning of Mohammed and Binalshib would be likely also to focus on how they were treated during the years they were held by the CIA. In announcing their transfer to military custody, President Bush acknowledged that both had been subjected to harsh interrogation practices. The United States has insisted that the interrogation techniques did not amount to torture, but Bush administration officials have refused to say what those techniques were.
Meanwhile, the former German prosecutor, Kay Nehm, who twice flew to the United States in an effort to win U.S. cooperation in prosecuting Motassadeq, has expressed frustration at the U.S. attitude.
"You have to differentiate between justice and secret services," he recently told Der Spiegel magazine, referring to the CIA. "Apparently, the secret services' interests have priority there. They were not primarily interested in the judicial investigation of the terror attacks."
And Motassadeq's attorney is predicting that in a relatively short period of time his client will be free of all charges—either in Germany or more likely in his native country, Morocco.
Gerhard Strate, whose office walls are covered by photo-realist cityscapes of New York, said he expects his client's conviction on charges of membership in a terrorist organization will stand ("The case has been very well made," he explained.)
That conviction came in a second trial after the first case was overturned where prosecutors showed that Motassadeq had ties to both Atta, who was at the controls of American Airlines Flight 11 when it crashed into the World Trade Center's north tower, and Shehhi, who was piloting United Flight 175 when it struck the south tower moments later.
In addition, prosecutors presented evidence that Motassadeq trained at an al-Qaida camp in 2000 and that he arrived in Germany to study engineering in 1993—the same year Atta enrolled at the Technical University of Hamburg-Harburg.
But Strate, one of Germany's best known defense attorneys, said none of that proves that his client was involved in the Sept. 11 plot, though he stops short of saying that his client should be declared innocent. "Let's say, rather, that they do not have sufficient evidence in this matter," he said.
Without better evidence tying him to knowledge of the plot, Strate predicts that at worst his client will serve a few years of the seven-year sentence he was given on the membership conviction and then be expelled from Germany for overstaying his expired student visa. Because of this, while Motassadeq is free in Hamburg, he is not able to work or study. Strate said that he is limited to waiting for the final decision in this case.
"It is possible he will have to spend time in prison here, on the existing sentence, before he is expelled," he said. "But the accessory to murder charge still appears to lack the necessary evidence."
As for the German prosecutors who have pursued this case, this is expected to be their last chance to make the Sept. 11 charges stick.
(c) 2006, McClatchy-Tribune Information Services.
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