Al Qaeda and the Courts

More than year after a German court put the first -- and only -- suspect connected with the Sept. 11 terror cell in Hamburg behind bars, a higher court on Thursday struck down the decision.

In its decision, the five-judge panel of the Federal Court of Justice said that Hamburg judges did not have enough evidence to convict Mounir el Motassadeq on charges of accessory to commit murder in 3,066 cases and membership in a terrorist organization in February 2003. Lawyers for the 30-year-old Moroccan national, currently serving a 15-year prison term, said they would apply for the immediate release of their defendant pending the retrial in Hamburg.

Observers say Motassadeq's retrial and possible release is a blow to Germany's reputation as an effective terrorism-fighting country. Interior Minister Otto Schily, who has referred to Motassadeq's conviction as evidence of Germany's commitment in rooting out terrorists, called the decision "regrettable." The news follows a decision by a different Hamburg a few weeks ago to acquit another suspected accomplice to the Hamburg terror cell, Abdelghani Mzoudi (photo).

"A picture emerges that shows that something isn't quite right in the way we're fighting or prosecuting terrorism," said Kai Hirschmann, co-director of the Institute for Terrorism Research and Policy in a DW-WORLD interview. "Internationally, people are looking at the decisions in the German courts - and we could make ourselves laughable."

Exploiting every loophole to free suspects

Hirschmann and other legal experts say the cases against Mzoudi and Motassadeq demonstrate the difficulty Western courts are having in prosecuting suspected Islamic terrorists. For more than a year, federal prosecutors in the United States have been presenting what many say is a porous case against Zacarias Moussaoui, a French national and the alleged 20th hijacker that never joined the suicide missions on Washington D.C. and New York City.

Moussaoui has frustrated prosecutors by demanding access to suspected Al Qaeda power brokers, like alleged Sept. 11 planners Ramzi Binalshibh and Khalid Shaikh Mohammed, currently in US military custody. An appeals court is currently deciding whether Moussaoui should have that access.

"If you look at the Moussaoui defense, then you see that they've built it up along similar lines," said Hirschmann. "They use every loophole the democratic state allows them."

Motassadeq's lawyers asked for similar access to either Binalshibh or transcripts of his testimony, which is allegedly in the hands of Germany's Federal Intelligence Agency (BND). When a BND officer testified in court that releasing the information would damage Germany's reputation in the intelligence community, the judges accepted the explanation. The appeals judges on Thursday did not.

"The high regional court in Hamburg should … have acknowledged these events in weighing the evidence," the five-judge panel wrote in its decision.

Treating a terrorist like a murderer

For many, the decision proves that the shadow of the terrorist attacks no longer hovers over the judicial process. With the horror and trauma of the terrorist attacks no longer fresh in everyone's minds, legal reason is beginning to set in.

"The courts are starting to realize they can't on principal treat terrorism any differently," said Michael Byers, a Duke University specialist in international law, in a DW-WORLD interview. "Releasing a murderer onto the streets … is as dangerous as releasing a terrorist onto the streets, yet we know we do it. That's the price society has chosen to pay in order to keep innocent people out of jail."