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.
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.
The German Supreme Court rejected this theory as implausible, and overturned the sentence. The lack of statements from key witnesses, including that of Chalid Sheikh Mohammed, also affected their ruling. The strategist behind the attacks is being held by the Americans at an undisclosed location - outside the range of normal jurisdiction, and beyond the reach of even the longest arm of the law. Although German intelligence is privy to some of his testimony, German courts are not - as is also the case with Zammar's statements to the Syrians.
Klaus Tolksdorf, the presiding judge at Germany's Supreme Court, warned that terrorism did not justify "barbarous, uninhibited war." In doing so, he clearly rejected the strong-arm methods advocated by Washington, which former CIA antiterror chief Cofer Black once euphemistically referred to as "taking off our kid gloves." Tolksdorf's words expose the (self-imposed) limitations of the German state, but leave its prosecutors on the horns of a dilemma.
Like his friend al-Motassadeq, Abdelghani Mzoudi also underwent weapons training at an al Qaeda camp in Afghanistan. He even spent some time living at Marienstrasse 54 in Hamburg, the house where the student terrorists hatched their plot. But Hamburg's higher regional court was forced to acquit him, too - again for lack of evidence.
At the trial, the federal prosecution service and representatives of the country's security services had entangled each other in a web of contradictions. While one was insisting that Mzoudi had been in Hamburg when the attacks were planned, the other was claiming the terrorists had hatched their conspiracy in Afghanistan in his absence. Mzoudi was acquitted, and now lives in Morocco, where he unfailingly sings the praises of Germany's legal system.
According to the Hamburg judge Ernst-Rainer Schudt, Germany's criminal law is designed to handle clubs and associations, but is powerless to stop "sporadic fundamentalist cells springing up," organizations that fail to elect treasurers and submit regular reports.
This plays into the hands of men like Mohammed B. and Abderrazek L., just two of scores of students from Islamic fundamentalist circles.
Mohammed B. was an electrical engineering major who flunked his exams twice as long ago as 1995. After that he reported sick before each further test, to avoid being thrown off his degree program. He was friends with two of Atta's alleged accomplices, Said Bahaji and Zakariya Essabar, both of whom are still at large. In March 2000, his Internet connection was used twice to access a website containing information on U.S. flying schools. But not by him, he claims.
He once wrote to his uncle in Morocco that the Germans were waging war on Islam, but would never win. In the fall of 2003 he returned to Morocco of his own free will; there was no evidence to justify deportation.
Abderrazek L., a short, stocky man, once shared an apartment with Mzoudi. Among his possessions the police found one video showing Chechen Mujahideen beheading a captive. And another in which imams encourage good Muslims to "kill the children of the unbelievers ... drag off their women and destroy their homes."
Once again, the authorities hit a brick wall. "I'd like to stress that being someone's acquaintance doesn't necessarily mean 'knowing' them," said Abderrazek L., detailing his links with the hijackers' associates. "We are all Muslims, and at the mosque we are all brothers." He knew most of those involved in the attacks, but without knowing much about them, he claimed.
And what about the videos? "I didn't watch them all from beginning to end," he professed. And anyway, who's to say he shares the imam's views? He didn't think the attacks of 9/11 were "all that good" - given all the innocent victims, he says.
Abderrazek L. has at least left the country: one of the first from the wider group of people linked with the terrorists. But in the war on terror, his case neither raises the German judiciary's profile nor enhances its image.
In the beginning, things had looked so different. Immediately after September 11, the Germans seemed on the brink of dramatic breakthroughs. Within days the police had made rapid progress, documenting the key information and major participants. They searched Darkazanli's apartment just 48 hours after the attacks, confiscating papers and instructing him to report for questioning two days later. Which he did: the following Saturday Darkazanli duly turned up and was interrogated from 11 a.m. to 1:30 p.m.
"How long have you known Said Bahaji?" he was asked about a man who continues to evade capture. "Does the name Mohammed Zammar ring a bell?" And: "Do you know Abdelghani Mzoudi?" They questioned him about the hijackers and about bin al-Shibh, one of the plotters.
They also quizzed Darkazanli about his business connections. "Don't you find it strange that your business partners in the United States are all in jail for their parts in bomb attacks?"
His answer: "No. I was just looking to make some money with these people. In my line of business, I can't be expected to know what everyone else is up to."
The authorities first took an interest in Darkazanli's unusual connections as early as 1993, when they intercepted a wire transfer from his wife's bank account to the suspected head of an Afghan training camp. The alleged purpose of the payment: "child support." Then there was the discovery of a photo showing Darkazanli wielding a submachine gun in Afghanistan's mountainous Hindu Kush region. And then there was his alleged involvement in the purchase of a ship for al Qaeda, contributing - according to Spanish investigators - 152,000 deutschmarks toward the total price of 760,000 deutschmarks. Darkazanli insists that none of these transactions are connected to terrorism.
In 1998, Mamduh Mahmud Salim - Osama bin Laden's purported financier - was arrested in Bavaria. Since that day Darkazanli, who had power of attorney for one of Salim's accounts in Frankfurt, has been eyed as a major catch.
Federal investigators twice asked prosecutors to institute legal proceedings against Darkazanli prior to 9/11. But they refused.
And so he stayed in his home on a leafy side street in Hamburg's Uhlenhorst quarter, a few steps from the Alster Lake. In the days following the attacks, local joggers were joined by hordes of camera crews, journalists and investigators - all demanding an explanation for the crime. But as he has repeatedly done, Darkazanli denied any links with al Qaeda.
Today, the crowds have disappeared. It looks as if Darkazanli is living happily ever after, having yet again slipped through the prosecution's net, unlike his friend Zammar. And at first glance it seems as if the authorities have suffered yet another setback in their war against terrorism.
But appearances can be deceiving. Before the German parliament retired for its summer recess, it ratified new legislation on EU arrest warrants, allowing the extradition of German nationals to other EU states. This could prove crucial to the Spanish authorities who have long been demanding Darkazanli's handover. Unlike their German counterparts, Spanish prosecutors believe they have the evidence to prove Darkazanli's membership in al Qaeda. They see him as an accomplice of the Islamic fundamentalist Imad Yarkas, who was given a 27-year sentence for his role in the 9/11 attacks.
Darkazanli appealed successfully against the attempted deportation at Germany's Constitutional Court. He was due to be put on an Iberia Airlines flight from Berlin's Tegel Airport to Madrid's Barajas Airport, but the judges suspended the extradition order minutes before take-off. The court requested increased safeguards for German citizens against extradition, which should only be permitted, they ruled, "in cases where the offense has a typical cross-border dimension from the outset and shows a corresponding gravity, as is the case with international terrorism or organized trafficking in drugs or human beings." The government lawyers returned to the drawing board.
It was a convoluted process, they say - unlike the case of Zammar, who was simply blindfolded, bundled onto a plane, and spirited away to a torture chamber. With Darkazanli, the legislation had to be meticulously worded, reworded and reworded again; there were thirty-odd drafts in all. The final law represents the German civil servants' riposte to the mob-like methods of the war on terror. Darkazanli, they say, has yet to fully appreciate the danger he faces.
But - they suspect - that will soon change.