Dead Ends Germany's Struggle To Prosecute Terrorists

Germany has had little success in jailing suspected accomplices of Mohammed Atta, largely for lack of evidence. A risky foreign mission launched by its security services went badly awry.

By Dominik Cziesche


On that fateful morning of September 11, 2001, Mohammed Haydar Zammar and Mamoun Darkazanli must have known that their lives were about to change forever. The moment the first images of the blazing World Trade Center hit the screens, Zammar, considered a mentor to the attack's ringleaders by Germany's security services, and Mamoun Darkazanli, long suspected of supporting al Qaeda, were speaking on the phone. Shortly afterward, they met up. For about an hour, Darkazanli later recalled, he and Zammar followed the coverage on TV.

Mzoudi on trial (before Hamburg's Higher Regional Court, 2003): Sharing quarters with Mohammed Atta
DPA

Mzoudi on trial (before Hamburg's Higher Regional Court, 2003): Sharing quarters with Mohammed Atta

It was to be their last meeting. For almost five years, Zammar has been languishing in a Middle Eastern prison cell. Darkazanli still lives in his Hamburg apartment, despite the authorities' best efforts to indict him. The fate of these two Islamists epitomizes the dilemma faced by Western democracies in their war against terror. Can it be won without impinging on civilians' constitutional rights? And can a state governed by the rule of law afford to cooperate with countries that use torture in their interrogations?

Zammar was abducted by CIA officers during a trip to Morocco at the end of 2001 and taken to Syria, a country that practices torture. That made Syrian-born Zammar, who had acquired German citizenship in 1982, one of the first victims of "rendition," a U.S. practice that rides roughshod over fundamental legal principles. He is now incarcerated in a 6x3 foot cell, a gaunt shadow of his former 300-pound self.

The German authorities have long been aware of Zammar's circumstances. Back in November 2002, officials from Germany's federal investigative agencies embarked upon a top-secret mission to interview him in Damascus. Their superiors had stipulated in their brief that "under no circumstances may German agencies and their personnel take part, either actively or passively, in torture." If at any time they discovered that a detainee was being treated "inappropriately," they were to halt the mission immediately.

Back in Germany, just after the 9/11 attacks, Zammar had mocked a judge at his trial, saying: "The law obligating me to testify here is not an Islamic law. As a consequence, I do not feel bound by it." But in Damascus, he was proving almost garrulous. Clad in a dark-gray jalabiya and a green army anorak, he chatted to his visitors over pistachios and tea about things that had never passed his lips in Germany. He volunteered, for example, how he had encouraged the 9/11 attackers to enroll at a terrorist training camp.

But Zammar also bemoaned being left to vegetate in his tiny cell. The German officials noted that he looked emaciated, but could discern "no visible sign of infirmity."

The dubious Syrian jaunt did little to further the Germans' 9/11 investigation. Evidence obtained through the efforts of Syrian torturers is inadmissible in a German court. Details of the trip leaked late in 2005 placed Merkel's fledgling government in an embarrassing bind - and left ministers groping for explanations: "It was the unanimous view of all the officials involved" that proper interviewing conditions were "not violated," a spokesperson for the country's new grand coalition said.

In fact, the previous coalition - comprising the Social Democrats and Green Party - had struck a very questionable bargain to secure permission for the interrogation in the first place. In return for access to the prison, the German authorities suspended espionage proceedings against some Syrian intelligence agents. "We wouldn't do that again," says one official today.

The government got itself into trouble of a different kind over Zammar's associate, Darkazanli. In his case, the German investigators played it strictly by the book, but an entire army of German and American experts were unable to produce enough evidence to indict him in Germany.

Probably no other case has damaged Germany's reputation as much as this one, especially in Washington. Intelligence services had to explain why they had not monitored Darkazanli more closely in the build-up to 9/11, while the German federal prosecutor's office was accused of doing too little too late. For weeks on end, the government faced a barrage of media accusations that top suspects had nothing to fear in Germany.

But Darkazanli is by no means the only suspected terrorist to escape prosecution, compounding the impression of legal lethargy. The state's attorneys failed to build cases against most of the hijackers' associates. A handful have quit the country in the interim; some left voluntarily, others were deported. Only one - Ramzi bin al-Shibh - is being held by the U.S. at an undisclosed location.

But many continue to live in Germany - because they are married to German nationals, or still enrolled at universities. And above all because nobody can prove they were complicit in Mohammed Atta's plans.

In the wake of 9/11, the Federal Prosecutor launched proceedings against just two of the terrorists' associates: Abdelghani Mzoudi and Mounir al-Motassadeq, known in Hamburg's department of interior affairs simply as "M & M."

Hamburg's higher regional court sentenced al-Motassadeq to 15 years for being a member of a terrorist organization and an accessory to 3,066 counts of murder. The conviction was then quashed by the country's Supreme Court. In a second trial, the sentence was reduced to seven years. But Germany's Federal Court of Justice this week affirmed his conviction and extended the charges to include 246 counts of abetting murder for the deaths of the passengers and crew members of the airlines used by the hijackers. The court said the evidence proved that al-Motassadeq had been aware that attacks were being planned. It turned the case back to the lower court and said the thousands of deaths in New York and Washington could be taken into consideration when al-Motassadeq is sentenced.

In the original trial - an attempt to convict al-Motassadeq of belonging to a German-based terrorist organization - the courts resorted to sleight of hand. Since supporting foreign terrorist groups was not punishable before September 11, the judges simply reversed the sequence of events. In the court's version, a terror cell based in Germany had decided to carry out attacks in the U.S., before its members traveled to Afghanistan to drum up support. In other words, bin Laden hadn't recruited henchman Atta. Atta was the global mastermind and bin Laden his loyal follower.

  • Part 1: Germany's Struggle To Prosecute Terrorists
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