Guantanamo in Hamburg? The Mzoudi Terrorism Case

Yesterday a court in Hamburg, Germany, found a 31-year-old native Moroccan, Abdelghani Mzoudi, innocent of charges that he had been involved in the Hamburg-based terrorist cell behind the September 11 attacks on New York City and Washington. Naturally, American officials are hardly pleased by this verdict. Turning first to the account you’ve all probably already seen in the New York Times establishes the basic facts here: presiding judge Klaus Rühle ordered Mzoudi acquitted not because he thought him innocent, but because not enough evidence had been presented to prove his guilt beyond a reasonable doubt. And that was partly due to the refusal by American authorities to make intelligence information available to the German prosecutors working for Mzoudi’s conviction.

What does the German press say?


As usual, the Frankfurt Allgemeine Zeitung features a very complete account (Hamburg Terror-Trial: Court Releases Mzoudi), even featuring the Moroccan’s smiling face in a column-top photo. The verdict was really no big surprise to anyone; when the judge has previously ordered the defendant released from custody even as the trial is still going on, as Rühle did back last December, you can pretty much bet that the course of things is favoring the Defense.

What seemed to have been the turning point was a new piece of evidence the court received back on 11 December 2003, from an unnamed source currently held in American custody, but whose claimed expertise on the subject of the planning for the September 11 attacks meant to most observers that he could only be Ramzi Binalshibh, the likely head-planner and coordinator of those attacks. This statement listed the members of that Hamburg terror cell – and failed to include Mzoudi, as well as, for that matter, one Mounir el-Motassadeq, who had earlier been convicted by that same Hamburg court and sentenced to 15 years in prison for his part in the planning and preparation of the attacks.

Throughout Mzoudi’s trial, his defense never denied that he had traveled to Afghanistan, where the September 11 attacks were actually planned, nor did it ever deny that Mzoudi had been part of the social circle in Hamburg of (and indeed had even procured lodging for) the September 11 terror-pilots Mohammed Atta and Marwan Alshehhi. Nonetheless, that December 11 piece of evidence sufficed to bring about a “180-degree turn” (as prosecution team-member Walter Hemberger complained) in the judge’s attitude towards the defendant, of which only the most explicit manifestation was his ordering Mzoudi released from custody shortly afterwards. Still, the FAZ reports, this matter is hardly dead yet, as it will certainly go on to a higher court for appeal. The prosecution team (specifically: Chief Federal Prosecutor – Generalbundesanwalt – Kay Nehm) is still confident that the verdict will be overturned on appeal; Nehm is also confident that the American authorities will be more cooperative about furnishing more relevant information in the near future – specifically, further information about Ramzi Binalshibh which could cast doubt upon his statement exonerating Mzoudi and el-Motassadeq.


Der Tagesspiegel captured the judge’s position precisely in the title of its article reporting on the trial’s verdict: On the Border of Truth. In such a situation of doubt, he found that his only real choice was to rule in the defendant’s favor. Judge Rühle, in reading his verdict, also made clear his annoyance that that December 11 piece of evidence acting in Mzoudi’s favor had come at such a relatively late point in the trial – and that there was no way he could be sure that there were other statements or facts, acting one way or another as regards the defendant, that he should be made aware of but which somebody, somewhere has decided not to release.

Meanwhile, this article in Munich’s Süddeutsche Zeitung (Deportation “Not Just Something You Can Make Happen Tomorrow Morning”) sheds further light upon the consequences flowing from this verdict. Despite Mzoudi being cleared of guilt, many in Hamburg are nonetheless calling for his deportation back to Morocco, among which number city senator Dirk Nockemann of the Partei Rechtsstaatlicher Offensive (“Party of the Offensive to Maintain the Rule-of-Law”), a recent anti-immigrant, law-and-order political phenomenon rather similar to the Pim Fortuyn movement in the Netherlands. But there can be no such deportation – quite aside from the fact that the man is, technically speaking, still innocent of the crimes of which he has been accused – for as long as the appeals process lasts. Besides, any such deportation is of course nicht von heute auf morgen, which I have translated above as “not just something you can make happen tomorrow morning” – it’s a procedure that takes time.

Meanwhile, at the top rank of Germany’s justice officials, German Federal Interior Minister Otto Schily (who first came into German public prominence as a lawyer defending in court Red Army terrorists back in the 70s, by the way) has carefully commented on the Mzoudi case in an interview with Germany’s second public television network, ZDF. He called the Mzoudi verdict “disappointing,” but noted that he had to accept the exercise of judicial independence. (Unfortunately, in that sentence – Zunächst einmal habe er aber die Unabhängigkeit der Justiz zu akzeptieren – there appears nothing conveying the meaning of “of course.”) He also expects the verdict to be overturned on appeal; and he even expressed sympathy with the American authorities’ reluctance to release key information for the case: “We must respect the conditions that the US authorities establish” since “they have their own attitude towards certain documents.”


But surely the most interesting German press coverage of the Mzoudi trial comes from those newspapers which have chosen to post commentary articles alongside their reporting. The Süddeutsche Zeitung does this, with a vengeance, in a commentary by Heribert Prantl entitled Saboteurs in Robes?. The “robes” apparently refers to judicial robes, i.e. could German judges really be saboteurs? Prantl has some scathing things to say about the pressure American authorities have allegedly brought to bear to subvert the course of German justice in the Mzoudi case, starting with the observation that “Now that Mzoudi has been released, Germany will surely join the list of America’s ‘Axis of Evil.'” He notes a clear trend, ever since the world-wide “War on Terrorism” got under way, of bodies of law being split everywhere, between Feindstrafrecht (“enemy-law”) and Alltags-Strafrecht (“everyday law”) for application to “customary” crimes. The latter corpus of law, according to Prantl, still features the usual “liberal” and “enlightened” principles (such as, presumably, “innocent until proven guilty”), while with the former these are either tightly restricted or missing entirely. But German law doesn’t necessarily want to or have to bow to this “necessity,” he claims. With their restrictive behavior towards releasing vital information that the Hamburg court needed to know, “the American authorities have . . . acted as if guilt and judgment were already clear by force of American will, and as if the German court now only had to apply its pro forma stamp to that determination.” But German justice doesn’t work that way; in fact, in this case at least it has refused to degenerate into a rougher, military-sort of justice, it has avoided what Prantl calls eine Guantanamoisierung des Strafverfahrens – a “Guantanomization of the System of Justice.”

Writing his commentary in Berlin’s Der Tagesspiegel (In Doubt Against Severity: Thin Evidence, Mzoudi Cannot Be Condemned), Frank Jansen is a bit less vehement. Indeed, he starts out writing “Seldom in the history of German jurisprudence has a court so contradicted itself,” speaking of the glaring contrast between Mzoudi’s being set free and his compatriot el-Motassadeq being condemned to 15 years’ imprisonment on essentially the same charges, on the basis of the same evidence – not counting that late, December 11 submission which turned out to be decisive for Mzoudi. It has dawned on you by now, hasn’t it, dear reader: If Mzoudi could be set free on the basis of that December 11 submission, then the same could happen for el-Motassadeq, this time on appeal. Or on the other hand, as Otto Schily and all his prosecutors all the way down maintain, the appeals courts could overturn Mzoudi’s release and confirm el-Motassadeq’s conviction – most likely on the basis on even more evidence that the American authorities allow to trickle out that shows these gentlemen to be deeply involved with Mohammed Atta after all and/or that show Ramzi Binalshibh’s December 11 evidence to be not credible.

In all, as Jansen points out, the Americans have actually so far merely shot themselves in the foot with their secretive attitude towards releasing the information that they have – they have managed to release just enough to cause the acquittal and release of a suspect whom they would greatly prefer to be locked up behind a German prison’s walls. Maybe they will see the light in time and become rather more forthcoming; as we saw way back in the New York Times article, there are plenty of September 11 victims’ families following proceedings closely, and wishing that they would.

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