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interview: andreas schulz

The situation is like if you have to fight with one arm tied in the back. They have to see how they can convince the court that the evidence left is enough at least for a minimum conviction. … What is the big problem with this trial?

Well, it's a question of evidence, evidence which might be available in the United States and has not been produced in Germany in the courtroom. The first trial against Motassadeq, I think the court and everyone in the courtroom was influenced by the attacks and by the unprecedented situation, getting the awareness that Al Qaeda is now attacking the Western world.

And this influence in the heads of the decision makers led to the conviction of Motassadeq, unfortunately supported by procedural mistakes which were the reason that the federal supreme court [nullified] that verdict and sent the case back to Hamburg.

For another trial?

For another trial. ...

What they were saying was that there wasn't evidence for the first conviction, that this was an emotional reaction to a terrible event.

Well, they said that the option that there might be evidence had to be taken into consideration before the verdict came out, and not having this option in mind was a procedural mistake.

How do you conduct a trial of this complexity in the absence of all the available evidence? How does the prosecution expect to proceed?

Well, the next development showed that there is more cooperation between the U.S. side and the German side. The chief prosecutor two days ago announced that there will be more evidence coming from the United States.

But I think the biggest problem is if evidence is coming, can this evidence be used in the German trials? The issue of torture is -- above all, Abu Ghraib is the issue, and if you produce evidence which cannot be introduced in a legal-based trial, that evidence is nothing. And this is a problem which is coming up in the future, in the very near future.

photo of schulz

Andreas Schulz is a German lawyer representing the families of those who died in the Sept. 11 attacks in the case against Mounir el-Motassadeq, who was convicted in 2003 of aiding the 9/11 hijackers, but whose conviction was overturned when an appellate court rejected the evidence against him. Motassadeq is currently being retried in Hamburg, but Schulz says the outcome of the trial is in doubt, because the U.S. refuses to provide the Germans with evidence from Ramzi bin al-Shibh and Khalid Sheikh Mohammed, who allegedly were involved in planning the attack. But, Schultz says, even if the U.S. did provide access to the two Al Qaeda masterminds, the evidence would not be allowed in the German courtroom if it was obtained by torture. This interview was conducted on Oct. 8, 2004.

The suggestion being that the evidence that is being obtained by the United States is being obtained by torture?

In the legal understanding. Torture, under the specific section in the German Criminal Code, means if you violate certain minimum standards, you can't use this evidence. And the issue of torture since Abu Ghraib is common knowledge in the legal consideration, and the defense is waiting for that evidence to come up with the issue of torture. ...

You seem to be saying that whatever evidence may be available is already tainted by the means by which the evidence was obtained.

This might be the problem. There's a solution, and in the request from the German side to the U.S. authorities, it was spoken of very clearly. We need bin al-Shibh and Sheikh Mohammed in person in a courtroom or in an equivalent situation like a video conference. ...

If you don't have these witnesses in person, you cannot use at the end of the day that evidence which is coming from the United States. This means the case is more lost than the other alternative: getting a conviction.

In a perfect world, how would this be resolved?

The prosecution, as well as the court, as well as the other participants were requesting that the United States should make these two witnesses available. Until today, the United States rejected that request. They said that they are working on the questionnaire which was sent from the German court, answering certain questions which might produce circumstantial evidence.

But circumstantial evidence is less than full-size evidence, and we have to wait and see what the federal prosecutor meant when he said to the media recently the United States are reconsidering, make a reconsideration on the issue of giving evidence producing the availability of evidence. But only direct cross-examination of [bin al-Shibh or] Mohammed would be the tool for conviction or acquittal. It depends what these persons will tell the court.

But if you don't have this evidence, this first-class evidence, the conviction is very far away.

Being realistic, what do you really think the chances are that the Americans will deliver up either Khalid Sheikh Mohammed, Ramzi bin al-Shibh or a video conference? What really are the chances that that's going to happen?

Based on the cases to date from the first case ... until today, I would make a very conservative evaluation.

Not going to happen?

(Nods head.)

And in the absence of that evidence, you're telling me what? What are you saying?

That there will be no conviction on the basis of supporting the killing plot, which means accessory for murder. There might be a conviction for being a member of a terrorist organization, which is -- it's a severe offense, but the sentence is low. The estimation is around three years, which is nothing, because Motassadeq spent two-thirds of this sentence already in pretrial custody, and you have to take this into account, which means he's a free man even if he's convicted for three, up to five years. ...

But three years for what most of the world believes is participation in the murder of 2,760-some people isn't a very big penalty.

It's German law. We have to apply this law. I know that United States sentencing is different, but you can only apply what you have. And the issue of death penalty is not discussible in Germany as well as in most European countries. And from the point of the families, I don't want to imagine what they feel.

Now, Germany is not unique. Europe generally is following a legalistic approach to the attempt to control terrorism. Americans are following a military approach. Are these two approaches compatible?

No, not at all. I think the way the United States was handling the problem was very effective. They sourced out the legal justice system. They were designating Al Qaeda suspects as hostile combatants, and this opens the military option to handle this situation.

This was very effective, but the war was in Afghanistan, maybe in Iraq, for sure in the United States, but not in Germany, not even Madrid, which was fought by Al Qaeda strategy open to military option. And for this reason, the justice system in Germany or Spain still applied, and the justice system does not allow military options. So you cannot use these different tools on the same level, which weakens the position of those who are under attack. ...

Europe is particularly vulnerable. In Europe, there is a huge population from the Muslim world. In Europe, there is a lot of direct agitation from extremists attempting to mobilize [an] element of that world. This is not a hypothetical situation in Europe.

Europeans, and Germans specifically, are underestimating the amount of danger, the dimension of danger. The attitude in Germany today is to see if there is cooperation between Muslims and non-Muslims. And the common saying is [that] only a very small percentage of Muslims are aggressive or hostile. If this evaluation is correct, then the approach is tolerable. But if this approach and this assumption is wrong, then it might be a fatal error.

And are you suggesting that -- I think you said that Europeans generally and Germans in particular are underestimating the size of it?

Of course. When you attend these trials in Hamburg, you get an inside view how ... the brains of the Muslims who were the most aggressive members of the Muslim community works. ...

One of the very common quotations [was], "He loves to die; you love to live." And this approach is incompatible. If you have someone who's attacking you and he would like to die, how can you defend? There's no way to discuss or to make a conversation between two gentlemen about the issue of the Muslims killing the non-Muslims.

And this is a very complex problem, but I think in the deep extent, German society is underestimating the threat. The authorities who were involved in these specifics, they know what the threat might be. But the community in Germany, they are used to a multicultural society, and they have absolutely no idea how deadly the situation can turn out one day. ...

What if Madrid 3/11 had happened in Berlin?

I believe that the decision makers and the lawmakers would react immediately and would change the legal system in a very dramatic way. I don't think that Madrid in Berlin would be the same situation like in Spain today.

German society would undergo a fairly dramatic change?

At the end, yes. I don't think that Germany as a whole would accept this situation. Germany has a certain tradition and history, unfortunately. But in this case, I don't know if it's related to the genes or to the society or to the history of the society, but Germany would react.

In a very tough way?

I believe so.

How has the prosecution of these two individuals been affected by the failure of the United States to fully make available what's necessary for the prosecution?

The situation is like if you have to fight with one arm tied in the back. They have to see how they can convince the court that the evidence left is enough at least for a minimum conviction. The federal prosecution needs conviction at least for membership in a terrorist organization. They have to downsize their indictment to the smallest point which is available, and this is membership in a terrorist organization.

And this sends a sort of difficult message out to the rest of the world. The message, in its crudest form, is that Germany is soft on terrorism.

Yeah. But this has nothing to do with the approach of the prosecution. In the legal standards, in the legal tools which are available, you can only try what you have. And if you have, based on the evidence situation, only membership in a terrorist organization, you cannot be a dreamer and go for conviction on accessory for murder if you don't have the evidence.

So in the Motassadeq case, it was very controversial if the indictment could contain count two, accessory for murder. The critics were saying that this is a very risky business. But the court accepted the count, count number two for murder, and now it has to be taken care of. But the outlook is not very charming.

They may walk?

At least for the charge for accessory for murder. And they are already walking. I mean, they are not in custody; they even are to be seen in the Muslim societies. They are frequenting the mosques in Hamburg, and they are fully integrated in the networks again. ...

Was it a mistake for the Motassadeq case to have been brought in a criminal court? Does it belong in court?

Technically, yes. The crime started more or less in Hamburg. It's controversial. The planning was developed in Afghanistan or somewhere, Pakistan. We all know what the Bojinka plan meant to be. But the crime started in Hamburg, and therefore the jurisdiction, the personal jurisdiction, was Hamburg. And if this case had to be installed in Hamburg, the legal system was delivered right away.

It's understood that there were overt acts that appear to be criminal acts that took place in Germany. Therefore, there's a prosecution. And the German government appears to be trying to stick to its constitution and its sensitivities to the past in the way it conducts itself. But it seems a two-way street. There was a Mr. [Mohamed Heidar] Zammar who was here, who was also implicated [as an Al Qaeda recruiter]. The German government didn't protest when he took a trip to Morocco and miraculously wound up in a Syrian jail.

Yeah, I understand. But in this case and in this point of view, the United States should have made a request for extradition.

There's been no request for extradition?

Absolutely not. After 2001, everyone tried to be the first in the land to open a trial. Besides the legal requirements and the legal obligation to do this, I think Germany wanted to show how close we are supporting the United States in the fight against terrorism.

But maybe an extradition to the United States would be more appropriate, at least from the feelings of the families. But there was no request for extradition.

Why not?

Well, this is a question which should be addressed to the right authorities. There was no request for extradition. ...

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posted jan. 25, 2005

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