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4. The Motassadeq case
Motassadeq is a Moroccan citizen. He came to Germany in 1993. From the winter semester of 1995, he studied electrical engineering at the Technical University of Hamburg-Harburg. In 1998, he passed his intermediate diploma. Among his circle of friends were the later aircraft hijackers Atta, Alshehhi, Essabar and Jarrah as well as Binalshib, who was apparently also involved in the preparations for the attack and was arrested in Pakistan in 2002, and also Bahaji who disappeared after 9.11.2001.
Motassadeq was in pre-trial custody from 11.28.2001; on 2.19.2003 he was sentenced by the Hanseatic Higher Regional Court in Hamburg to a term of imprisonment of fifteen years for aiding and abetting murder on 3066 counts, as well as for attempted murder and grievous bodily harm in five cases in unity of crime with membership in a terrorist association.
Motassadeq was atmospherically severely incriminated by the circumstance that he had stayed in an al Qaeda camp in Afghanistan in summer 2000, and had also taken part in shooting practice there. Otherwise there was nothing that brought him into connection in any way by circumstantial evidence with the planning of the attack. His last activity had been a money transfer amounting to DM 5,000, at Binalshib’s request, from an account belonging to Alshehi for which Motassadeq had power of attorney.
In order - in accordance with their conviction - to let an involvement of Motassadeq appear plausible, the judges of the Hanseatic Higher Regional Court rewrote contemporary history. According to the written reasons for the judgment, the actual planning of the attack is said to have commenced already at a time when Motassadeq was still regularly together with the later hijackers and was seen with them, namely at the end of 1998/beginning of 1999. Already in spring 1999, Atta, Alshehi, Jarrah, Binalshib, Essabar and Motassadeq are said to have taken the decision to kill a great number of citizens of the USA by hijacking aircraft as well as causing them to crash simultaneously into highly symbolic buildings, such as the World Trade Center. The judgment emphasizes that these six persons knew that the plan could only be implemented with considerable organizational, logistical, financial and personal effort. After they had completed their planning with respect to the intention in Hamburg , they are said to have then traveled to Afghanistan in order also to win Usama bin Laden, the co-founder and financier of al Qaeda, for this. It is then stated verbatim in the judgment: “It was clear to the group around Atta that the assassination plan would fall on sympathetic ears in the case of bin Laden.”
Thus: The planning and organization of the attacks on the World Trade Center lay with the six man “group around Atta” in Hamburg-Harburg, there was only financial and personal support from Afghanistan. The terrorist association, which planned and carried out the attacks, consisted of just Atta, Alshehi, Jarrah, Binalshib, Essabar and Motassadeq. For example, according to the construction of the Hanseatic Higher Regional Court , Usama bin Laden could only have been prosecuted as a supporter of the Hamburg-Harburg-based terrorist association around Atta (and as an accessory to the crimes committed by this association).
The fact that this only barely agrees with the sources accessible in the meantime, but also those already available at the time of the pronouncement of the judgment, does not need to be further emphasized. This point was of just as little importance for the appeal. The fact that criminal court judgments do not tally with historical truth has never prevented them from becoming res judicata. What became fateful for the legal validity of the judgment was another passage on the fourth page from the end of the written reasons for the judgment:
“There is also no contravention of the right to a fair trial that could possibly have given the senate cause to suspend the proceedings.
Neither can such a contravention be seen in the fact that no suspension of proceedings took place, although Binalshib cannot, it is true, be examined at the present, but possibly can be in the distant future. The principle of a ‘fair trial’ may namely not take the place of the regulations of the Code of Criminal Procedure (StPO) or of principles of procedure. The accessibility of Binalshib is under discussion here and thus a question that is dealt with abstractly in § 244 Par. 3 StPO and has also been discussed concretely by the senate in accordance with this rule with an order, such as annex no. 23 to the trial record of 1.14.03. By the way, what would also have to be taken into account would be the principle of the enforcement of the state’s claim to punishment, that would be endangered in the case of a suspension of the proceedings, and the principle of acceleration that has a special importance in this present legal review of detention. Incidentally, the potential corrective of a new trial confronts the differences possibly resulting from an application of § 244 Par. 3 StPO, whereby, at present, there are no indications of any kind that statements by Binalshib do exist or are to be expected which could lead to a reopening of these present proceedings.”[11]
Factually, the Hanseatic Higher Regional Court here declared itself in favor of the so-called “windfall” theory of the American government whose representatives said, in rebuttal of Moussaoui’s defense lawyers’ request for access to the persons arrested in the meantime: the arrest of these persons was a pure accident from Moussaoui’s perspective, just as accidental as a windfall,[12] i.e. the ripe fruit on trees that falls in the neighbor’s garden after a gust of wind. His trial, thus the consequence of the windfall theory, would have had to take place even if these persons had not been arrested. Their arrest, just like their non-appearance in the trial, did not hinder its progress and fairness.
In unusually powerful diction, imbued with constitutional impetus, the 3rd Criminal Division of the Federal Court of Justice, in a ruling pronounced on March 4 of this year, put a stop to such slovenly dealings with the duty to provide clarification. Binalshib had been a direct participant in the crime. It was thus not to be ruled out that he, as the sole survivor - apart from the fugitive Bahaji - could have said something - also exonerating, concerning the extent of Motassadeq’s participation in the crime:
“According to all this, the Higher Regional Court should not have been satisfied here with the conclusion that the participant in the crime, Binalshib, was not available for examination and it could not be clarified either whether and possibly what details he had given in the course of his questioning by US American agencies about the accused’s involvement in the planning and preparation of the attacks on September 11, 2001.”
Admittedly, one unobtainable piece of evidence had had to remain on principle outside of consideration when considering the evidence taken:
“However, one exception to this principle does apply when the state being requested for mutual judicial assistance has a considerable interest of its own in the outcome of the criminal proceedings, for instance, because - as here - the criminal acts indicted and their consequences decisively also violated its own security as well as the legally protected interests of its citizens, so the Federal Republic of Germany is thus also acting for it in a kind of vicarious administration of penal justice. In particular if, in such a case, the said state itself makes means of evidence available - here in the person of witness W. - for the proof of the act, it must not be disregarded, if the same state withholds other means of evidence, central for clearing up the deed, from the German criminal court, which could potentially be suitable for exonerating the accused. The danger, which cannot otherwise be ruled out, that the foreign state, by its selective granting of mutual judicial assistance, is controlling the outcome of the criminal proceedings being conducted in Germany in its sense, cannot be tolerated in view of the accused’s right to a fair conduct of the trial.”[13]
These are very self-assured words. They show that our judiciary has not succumbed to the temptation up to now which the great American judge, legal scholar and poet Oliver Wendell Holmes summed up in the sarcastic comment: “Hard cases make bad law.” The American judiciary, in fact and emotionally very much more in direct confrontation with the effects of terrorist acts than we in Central Europe are, has countered the endeavors to establish a parallel legal system, that evades their jurisdiction, with a series of courageous rulings that will foreseeably not leave Guantanamo Bay in an unlegislated area either.[14]
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[11] UA S. 67.
[12] United States of America v. Zacarias Moussaoui , Opinion of the United States Court of Appeals for the Fourth Circuit, Decided April 22, 2004 , p. 11.
[13] BGH (Federal Court of Justice) in StV 2004, 192, 195.
[14] Cf. on this: United States Court of Appeals for the Ninth Circuit, Opinion filed December 18, 2003, p. 8/9 (Falen Gherebi v. George Walker Bush, Donald H. Rumsfeld): “We recognize that the process due to ‘enemy combatant’ habeas petitioners may vary with the circumstances and are fully aware of the unprecedented challenges that affect the United States’ national security interests today, and we share the desire of all Americans to ensure that the Executive enjoys the necessary power and flexibility to prevent future terrorist attacks. However, even in times of national emergency - indeed, particularly in such times - it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike. Here, we simply cannot accept the government’s position that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement. We hold that no lawful policy or precedent supports such a counter-intuitive and undemocratic procedure, and that, contrary to the government’s position, Johnson[referring to the US Supreme Court’s ruling of 5.6.1950 in the matter Johnson v. Eisentrager, 339 U.S. 763] neither requires nor authorizes it. In our view, the government’s position is inconsistent with fundamental tenets of American Jurisprudence and raises most serious concerns under international law.”