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SPIEGEL reports on an ongoing legal drama in Germany that has gone unnoticed so far in the U.S.: the German supreme court in Karlsruhe may well throw out Moroccan national Mounir Al Motassadeq’s conviction for 3000 counts of accessory to murder in connection with the 9/11 attacks. The decision is expected on March 4.

As with the Mzoudi case, captured terrorist Ramzi Binalshibh plays a key role in the legal battle. The fact that the United States refuses to make him available to the German legal system, where he might be able to provide exculpatory evidence for Motassadeq (and Mzoudi) is a central point for the German supreme court. From a Berlin Morgenpost report at the end of January:

“If official agencies block evidence and thus prevent a complete gathering of evidence, an especially careful honoring of their evidence is not called for,” said presiding judge Klaus Tolksdorf. His colleague Walter Winkler agreed: “The question in such a case, in which the accused is deprived of exculpatory means, is whether the accused can be the loser at the end of the day.”

From the defense point of view [Binalshibh] testimony would have been of central importance to the trial. “There was no better witness than Ramzi Binalshibh”, said attorney Josef Gräßle-Münscher. His Hamburg colleague Gerhard Strate emphasized that because this important exculpatory witness was not heard, the “right to a fair trial” guaranteed in the European Human Rights Convention was damaged.

It’s not clear to me why Binalshibh would say anything other than what was needed to spring two (alleged) co-conspirators. But the German judges would presumably have had the sense to take Binalshibh’s testimony with a pound or two of salt — if they were allowed to hear it. There must have been some way to provide the German legal system access to Binalshibh while meeting U.S. needs for security: closed-circuit hookup to Guantanamo, closed German courtroom, penalties for breaking whatever agreement is reached…something.

There would even have been a German precedent. Once upon a time, German legislators and courts were quite willing to make new rules as they went along as they dealt with the Rote Armee Fraktion (”Baader Meinhof”) terrorists. The results were the Stammheim court and prison complex and designer laws temporarily limiting access to the captured terrorists. Similar measures, updated to the current situation and technologies, might have been a way around the impasse — assuming there was enough German political good will to work with, of course.

It’s cases like this one and the Mzoudi case earlier that can’t help but raise doubts about the Bush administration’s legal strategy. It’s possible but seems unlikely the Bush administration has no firm opinion on the guilt of these two individuals. It seems more likely they do think these two belong behind bars; in that case, they’re certainly not doing enough to help keep them there.

Motassadeq is definitely an unpleasant young man. In his New Republic article about Hitler and current-day Hitlerism, Omer Bartov writes: Ralf Götsche, who shared the student dormitory with Motassadeq, testified that the accused had said: “What Hitler did to the Jews was not at all bad,” and commented that “Motassadeq’s attitude was blatantly anti-Semitic.” That doesn’t prove he’s guilty, of course, but it does suggest he’s just the kind of shriveled nut you’d expect among the 9/11 killers.

Jim Henley welcomes John Kerry’s view that the Administration is abusing Americans’ fear of further attacks (“George Bush has announced that he intends to make national security the key issue of this campaign: preemption, war on terror,” Kerry said. “It’s gonna be another one of these ‘culture of fear’ elections.”) After considering a David Brooks column, Jim adds:

If you still feel “every day” the way you felt on September 12, 2001, and you did not personally lose a loved one to the savages, there is something wrong with you. Snap out of it. You are indulging yourself and it is unseemly.

I don’t know which is more unseemly: to indulge in obsessive fear, or to presume to judge someone else is doing so. Let’s call it a tie. I’ve never liked someone else sticking my neck out for them, or prescribing the level of risk I “ought” to be willing to tolerate.

To be clear, I don’t feel like it’s “9/12 every day,” and some of Brooks’ language was a little over the top for me. But to the extent it reflected that 9/11 was a focusing event, I agree with Brooks’ language a lot more than I do with Henley’s. There are people out there who would be happy to slaughter me and my family and my neighbors in their thousands, and lack only the means and opportunity to do so. There are more people out there who would dance in the streets once it happened. And there are more yet who would take two minutes of silence — who knows, maybe even three — to mourn the victims. And then go about their business as usual.

So I’m not inclined to apologize about thinking a lot about 9/11, about how to prevent or at least put off another day like it, even if that might earn me the label “sniveling coward.” And ceteris paribus I’d prefer a president who does dwell on 9/11 to one who doesn’t. The issue is what is undue fear-mongering, and what is clear-eyed understanding of the dangers around us.

Postscript

A year or so ago I had a talk with someone who’s much more in Henley’s corner about these matters. Things got a little heated, and when I suggested that he might be able to afford a relaxed view given the small town he lives in, far from any likely attack — not Jim’s situation, by the way — he got upset. “If you feel that threatened, move!” he said. Me and the rest of the eastern seaboard? Where to? We’ll be right over.

Ken Pollack: Spies, Lies, and Weapons: What Went Wrong, Atlantic Monthly, January 2004:

Imagine that you were a CIA analyst in June of 2000 and heard Saddam make the following statement: “If the world tells us to abandon all our weapons and keep only swords, we will do that. We will destroy all the weapons, if they destroy their weapons. But if they keep a rifle and then tell me that I have the right to possess only a sword, then we would say no. As long as the rifle has become a means to defend our country against anybody who may have designs against it, then we will try our best to acquire the rifle.”

President Bush, 2003 State of the Union address:

Before September the 11th, many in the world believed that Saddam Hussein could be contained. But chemical agents, lethal viruses and shadowy terrorist networks are not easily contained. Imagine those 19 hijackers with other weapons and other plans — this time armed by Saddam Hussein. It would take one vial, one canister, one crate slipped into this country to bring a day of horror like none we have ever known. We will do everything in our power to make sure that that day never comes.

Some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike? If this threat is permitted to fully and suddenly emerge, all actions, all words, and all recriminations would come too late. Trusting in the sanity and restraint of Saddam Hussein is not a strategy, and it is not an option.

Former CIA director Robert Gates to Jeffrey Goldberg of the New Yorker:

“If the stakes and the consequences are small, you’re going to want ninety-per-cent assurance. It’s a risk calculus. On the other hand, if your worry is along the lines of what Rumsfeld is saying — another major attack on the U.S., possibly with biological or chemical weapons — and you look at the consequences of September 11th, then the equation of risk changes. You have to be prepared to go forward with a lot lower level of confidence in the evidence you have. A fifty-per-cent chance of such an attack happening is so terrible that it changes the calculation of risk.“ (via ‘Armed Liberal’ in “Winds of Change”; emphases added here and above)

I agree with Bush’s and Gates’ statements above. But I also agree with George Will — at least this part:

It would have been much better if the president and others, speaking about Iraqi weapons, had said “we believe” rather than “we know.”

After the war, in May, on Polish television, President Bush said, “We found the weapons of mass destruction. You know, we found biological laboratories.” No, we did not. “So what’s the difference?” said the president in December about the failure to find WMDs, because “if (Saddam) were to acquire weapons, he would be the danger.” Such casualness, which would be alarming in any president, is especially so in one whose vaulting foreign policy ambitions have turned his first term into Woodrow Wilson’s third term, devoted to planting democracy and “universal values” in hitherto inhospitable places.

Bush and others in his administration oversold a good case. While some — Powell, Rice — stayed within the bounds of the assertable, I think, at least in their most famous comments, others — Cheney, Rumsfeld — did not. Bush is responsible for that, and for allowing an exaggerated case to take root in American public opinion. Even if you consider the war a good development, on balance, getting there by a message that was deceptive at worst and artfully muddled at ‘best’ was not.

There are plenty of other reasons to vote against Bush, including Ashcroft, Delay, the Supreme Court, and the debts my kid will face paying off tax breaks for the wealthy. But I would prefer to vote for a Democrat who won’t give the Saddams of the world the benefit of the doubt, and who will hunt Bin Laden and his ilk relentlessly. And I don’t mean that I want Osama or Zawahiri ‘brought to justice.’ I mean that I want them dead.

I think — I hope — the remaining strong Democratic candidates ‘get it,’ though I think Gephardt or Lieberman were stronger on that score. I disagree with Kerry if he truly considers Al Qaeda style terrorism merely a ‘criminal’ matter. It isn’t. It’s a war with stateless pirates. I also disagree with Dean if he truly thinks we’re not safer with Saddam out of the picture. We are.

If a Democrat is to be elected president of this country, I don’t want him to have secured his election on such ground that he’s not inclined to aggressively defend it — pre-emptively and unilaterally, if necessary. We shouldn’t make that decision without good intelligence. But neither should we insist on proof positive of an imminent threat with dictators and war criminals like Saddam Hussein.

More Mzoudi trial* developments: German newspaper “Die Tageszeitung” reports that the Iranian goes by the alias “Zakeri,” and refers to an “Insight on the News” article in June, in which a U.S. official, responding to Zakeri’s 9/11 claims, called the Iranian “a fabricator of monumental proportion.”

Die Welt reports that the court apparently wants to proceed with hearing “Zakeri” himself next Thursday (1/29), but may not get the opportunity:

German federal prosecutor Walter Hemberger explained that because of promised confidentiality, this could only be handled “as a wish.”

Hamburg interior minister vows Mzoudi deportation

In a comment below, Scott Hanson points out this Spiegel article, “Into the clutches of the CIA by a devious route,”** detailing why Mzoudi is pressing for asylum:

…Hamburg interior minister Nockemann told SPIEGEL that he wanted to deport the suspect following the expected not guilty verdict as quickly as possible. Even if [Mzoudi], the friend of the terror pilot Atta were to leave the courtroom as an innocent man, there was “no room in Germany” for him, the senator of the Partei Rechtsstaatliche Offensive said. This attitude was shared inside the German government as well. Officials have already prepared all the formalities for a quick deportation.

Nockemann is the new leader of the Partei Rechtsstaatliche Offensive, a new party that scored some surprising gains in Hamburg a few years back. Last year its controversial leader and founder, Ronald Schill, was dismissed as Hamburg’s interior minister after attempting to blackmail the mayor with homophobic allegations against an ally. While Nockemann may be in a position to urge Mzoudi’s deportation, I’m not sure whether he can bring it off on his own. He may just be trying to be like Schill to a base that reportedly still hankers after their lost leader.

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* Scroll down for prior posts about this trial, or click these: 1, 2.

** TRANSLATION NOTES: by a devious route: ‘auf Umwegen’, which can also just mean ‘the long way around’. ‘Partei Rechtstaatliche Offensive’ is a conservative party; the name is hard to translate, but amounts to something like ‘Party for a Law and Order Offensive.’ Interior minister: Innensenator.

Moroccan national Abdelghani Mzoudi was to have learned today whether he would be judged guilty by a court in Hamburg, Germany, of being accessory to 3000 counts of murder. But German newspapers including Die Welt are reporting that the verdict will be delayed because of a new witness:

According to Mzoudi’s defense attorney G?l Pinar the witness is a man who claims to be an Iranian spy. He claims to have wanted to warn American officials before September 11, but was not taken seriously. He knows via an e-mail from Iran that Al Qaeda terror organization wants to liquidate Mzoudi, because it assumes he is cooperating with German officials. The witness claims to know, via phone calls from Iran, that Mzoudi is knowledgeable with codes, and was therefore responsible for information exchange.

Before this development, Mzoudi was all but certain to be judged innocent by the Hamburg court and judge Ruehle today. This was mainly because of a statement apparently made by Ramzi Binalshibh, (now probably at Guantanamo), claiming that Mzoudi played no role in the 9/11 planning carried out in Hamburg. Other evidence in the case, such as photos of Mzoudi together with 9/11 chief conspirator Mohammed Atta, was not compelling enough to Judge Klaus Ruehle to justify keeping Mzoudi in jail.

It’s not clear yet that the witness will actually take the stand himself, let alone how persuasive his testimony will be if it’s heard. According to Die Welt, the Iranian spy’s German interrogators and a German federal attorney will be heard from first; the court’s decision on how to proceed will be announced at the end of the day.

The evidence phase of the Hamburg, Germany trial of Abdelghani Mzoudi, who is accused of supporting the 9/11 attacks and charged as an accessory to over 3000 counts of murder, has ended with yet another setback for the prosecution. The Hamburg newspaper Abendblatt explains:

The court ruled against deposing author and Al Jazeera reporter Yosri Fouda, who had interviewed terror planners Ramzi Binalshibh und Khalid Scheikh Mohammed for his book “Masterminds of Terror”. The deposition requested by the German federal prosecutor’s office was “not required for investigation of the truth,” said presiding judge Klaus Rühle. The prosecutor’s office had wanted to prove among other things that a great part of the attacks were planned in Hamburg and not in Afghanistan. Ruehle countered that it could not be concluded from Fouda’s book that the journalist had acquired corresponding information from Binalshibh or Sheikh Mohammed. “Fouda presents suppositions as facts,” said Ruehle.

Together with Ruehle’s previous rulings in this case*, it seems likely the scheduled January 22 verdict will be an acquittal. One of the most curious and — for the prosecution — damaging turns in the case came last fall when American authorities apparently provided weakly exculpatory evidence to German prosecutors. As ABC News relayed an Associated Press summary just before Christmas,

The government’s case was undermined this month with the introduction of information believed to have come from Binalshibh. The government has not identified the informant, but the Hamburg judge said he was sure it was Binalshibh.

The informant reportedly said only he and the three Hamburg-based suicide hijackers Mohamed Atta, Marwan al-Shehhi and Ziad Jarrah knew of the plot.

Since Binalshibh is in U.S. custody at an “undisclosed location,” his comments appear to have been forwarded by American authorities to German law enforcement and prosecutors. The court ruled against accepting testimony by a German law enforcement officer that there was also incriminating evidence — but that he couldn’t reveal what it was under the terms of use of the information agreed to with the United States.

The German periodical Spiegel reported last month that German Justice Minister Otto Schily made a secret visit to Washington, D.C. to tell Attorney General Ashcroft that he feared that the Hamburg court would overvalue Binalshibh’s comments and acquit Mzoudi. The Hamburg court did free Mzoudi for the remainder of the trial when the exculpatory evidence was presented. But Schily’s plea for help did not meet with success:

The request of the German government to be allowed to present at least parts of heretofore secret documentation of Binalshibh’s interrogations to the judges was turned down by the U.S. government. The investigating authorities wanted to prove with these materials, that Binalshibh had earlier made other statements about the composition of the Hamburg terror cell.

The Spiegel article editorializes plausibly that “Despite the looming acquittal of Mzoudi, the USA declines to provide further evidence — it fears domestic political difficulties if it serves German justice more generously than its own — the White House is denying important witnesses and documents to US courts as well.”

As Deutsche Welle reported in mid-December, Mzoudi’s next step will be to fight for asylum in Germany, claiming that

asylum in Germany will protect him from being sent back to Morocco, where he fears he would be handed over to U.S. officials.

Now it’s surely possible that Mzoudi was just playing checkers with Atta et al when they’d meet up in Hamburg. It’s also unlikely. That said, I can sympathize with presiding judge Ruehle’s position, which seems to be, “you won’t give me hard evidence incriminating Mzoudi, you try to introduce hearsay evidence, and you do provide statements casting doubt on his guilt. Guess what?”

It’s hard to admire anyone in this mess. If Judge Ruehle thinks he’s up for a “Profiles in Courage” nomination, I’d point out he’s not likely to ever be at Ground Zero version 2.0, a point I’ll wager concentrates my thinking differently than it does his. And Ruehle’s standards for evidence and logic seem questionable at times, as when he claimed that the alleged Binalshibh statement “clearly exonerates” Mzoudi — despite being no more credible than the testimony he refused to hear by reporter Fouda.

But if American officials know Mzoudi deserves to be in jail, they should have figured out how to give the Germans some evidence to that effect. If they know he doesn’t or they aren’t sure, they should have done more, too.

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* Timeline of the case in German, via German radio network NDR: 10/10/2001: Mzoudi arrested; 8/14/2003: trial begins; 9/23/2003: convicted cell member Motassadeq refuses to testify; 10/1/2003: FBI agent testifies, but provides only publicly availabe materials; 10/24/3003: Heinz Fromm of the German constitutional protection authority (”Verfassungsschutz”) contradicts prosecution; his office is convinced that the attacks were not planned by the Hamburg group, but in Afghanistan.

Tony Adragna makes an excellent point:

[Democrats] allowed themselves to be portrayed as soft on National Security at the same time that folks like Cleland, Carnahan, and Johnson — two of whom lost their seats — were voting with Mr. Bush on going to war against Iraq. [...]

Now, you’ll hear it said & read it written that September 11th & all that’s transpired since are responsible for a swing in votes. I’m not buying that notion, the most facile form of which suggests [Democratic losses were due to] that voters took into account a politician’s position on Iraq. If that were true, then Durbin, Levin and Reed should have lost. Instead, they won their races by overwhelming majorities — 60 - 38, 61 - 38, and 78 - 22 respectively. Of the three Democrat senate seats that changed hands, two of the incumbents — Cleland & Carnahan — voted for the resolution authorizing force against Iraq. Something else is going on.

Being one of those 9/11 theorists, I feel compelled to reply.

First, I don’t claim “rallying round” could have overcome a Democratic blowout when that rare event happened (Durbin, Levin, Reed). I just think those Gallup numbers about “most important problem” being are so remarkably different from past years that they just about have to have had an impact on the election; they were at minimum a very important distraction from issues like the environment, privatizing Social Security or moderating Bush’s court picks that Democrats were far more united on.

As for Cleland, as Adragna points out himself, he was tarred as being not committed enough to defense — specifically homeland and missile defense, which isn’t a huge stretch from what I was talking about. The issue here isn’t the patent unfairness of that charge; it’s that the charge worked so well that even a Democrat like Cleland could be ousted. We’ll be sifting through the Georgia and Minnesota wreckage for weeks, but the political framework of a looming war simply can not have helped the opposition party in a close race.

This is not about scoring points in a debate with Adragna — luckily for me, I imagine many of you are thinking. It’s about the direction the Democratic Party should take after a disappointing election. I submit that it was mainly disappointing if you counted on the midterm boost as an automatic given, that should have at least maintained the Democrats’ hold — their razor-thin, Jeffords-given hold — on half a branch of government. The real disappointment is two years old: Gore letting the supposed automatic advantages of incumbency go to waste — but only to the point where a notoriously divisive election process could wrest the presidency from his grasp. And that despite winning the popular vote and — by at least one analysis– even the electoral vote, had a full and fair accounting of all Florida’s ballots been undertaken.

Rephrasing: if some Palm Beach county official had had a second cup of coffee and decided to order better ballots, I think that Gore would be the one basking in the mid-term glory Bush is enjoying right now.

Now Gore, whatever Republicans choose to think of him now, was and is no dove. Kenneth Pollack’s book “The Threatening Storm” portrays Gore as one of the Clinton administration hawks when it came to Iraq. And lest Republicans among my readers think “so what”: the Clinton administration took repeated military action to oppose Iraq, in the aftermath of Bush the First’s fumbled Gulf War opportunity to oust Hussein. Andrew Sullivan’s foamings notwithstanding, the Clinton administration’s internal divisions and hesitations about Iraq were no more than those plainly shown in Bush the Second’s administration as late as mid-summer this year — well after the mind-focusing events of 9/11.

Rephrasing: if some Palm Beach county official had had a second cup of coffee and decided to order better ballots, I argue that Hussein would be worrying about very nearly the same U.N. resolution that’s coming down the pike today or tomorrow. (And I argue that Bin Laden and his evil — yes, evil — cohorts would be just as much on the run.) Republicans have no monopoly whatsoever on being willing to fight to preserve this country and its legitimate interests.

This is speculation, of course, but it’s reasonably grounded in fact, and it has a bearing on the course of the Democratic Party. I submit it would be extremely unwise, as a matter of self-definition (but I also have come to think on the merits) for the Democratic Party to tie itself to an anti-Iraq-war strategy. But for a ballot it might well be Democrats, not Republicans, preparing to wage that war.

Great news that Binalshibh, a key 9/11 plotter, has been caught (Arrests in Karachi Raising Hopes in Hunt for Al Qaeda). Mixed feelings that the Al-Jazeera reporter who interviewed Binalshibh a week ago fears for his life as a suspected snitch (WPost, 9/15/2002, “Arab Journalist Fears Al Qaeda Retaliation”). Also a relief — for those of us who still care about relations with that country — that Germany has apparently passed on any effort to extradite Binalshibh to its own jurisdiction.

Amid the justifiable anger at French military unreliability in Operation Anaconda, I’d like to throw in two things I realized during the “9/11″ documentary:

• I am not personally acquainted with any French people.
• The two I saw in front of me seemed like the best kind of people you would ever want to get to know. I was impressed with their seriousness, and won over by their friendship and respect for the firemen both before and especially during and after the Trade Center attacks.Sure, you’ll say, it’s their government I’m really mad about. Or the culture, with its odd fear of English words, its apparent fastidiousness about McDonald’s hamburgers, etc., etc.

So I’ll add another observation: lots of people take their countries and cultures personally. I know I do; I suspect many French people do too. I’ll date myself here: I was on a “year abroad” to Germany back in 1980. The Iran hostage crisis consumed me then as 9/11 does now; I devoured German papers and the International Herald Tribune to learn as much as I could.

As I headed to a class one morning, a guy I considered a friend stopped me and told me about the failed hostage rescue attempt. I was taken aback both by his air of triumph and his words, “I stand on the side of the Iranian people,” accompanied in the ensuing, shall we say, discussion, by a disquisition on the various wrongs the U.S. had committed: Viet Nam, etc. Over beers, at another time, I might have agreed with him about some of this, but at that moment, for the sake of making inconsiderate political points — and regardless of any grains of truth in them — a friendship ended. Which was a shame. (And one of the few unpleasant memories of that time for me.)

The example doesn’t fit the present case perfectly, I know. But still, I suggest we all take a step back and remember that “the French” include people like these two filmmakers. They produced something superb for New York City and the country (and I’m glad they were reasonably well paid for it). They were also great ambassadors for their own country and culture, showing a natural friendship, respect, and bravery that undercut every foolish prejudice I’ve often shared about the French.

You’re right: it’s a sample of two. But let’s be willing to suspect there are more like them. And let’s not imply those French friends need to choose between friendship for America and Americans, and pride in their country or heritage. At minimum, next time you’re tempted to France-bash, think how you’d tell it to the Naudet brothers.

Lots of other people have pointed out the online photo gallery about 9/11, Here Is New York. Two kinds of photograph get to me the most. One kind is photographs of the onlookers, e.g. 0178, 0187. The other is of the WTC before 9/11, e.g., any of them. I liked the World Trade Center, I wish I’d visited it. It added to the skyline, it was unforgettable, unmistakable, immense, and beautiful in a spare sort of way. I liked the simplicity and starkness that others disliked; it was a contrast and a kind of quiet, superb answer to the wonderful riot of other styles all around it.

There is a very nice article, The Day Time Stopped, by Marianne Hirsch in the Chronicle of Higher Education about the power of the 9/11 photos, I forget where I first saw it, likely Jeff Jarvis or Reid “Photodude” Scott. Random excerpts:

Every major historical event since the beginning of photography has bequeathed an iconic image — in the 20th century, the picture of the little boy with his hands up in the Warsaw ghetto, or of prisoners in striped uniforms, for the Holocaust; the picture of the naked girl running down the road after a napalm attack for the Vietnam war; the picture of birds in an oil spill for the Persian Gulf war.

What will be the icons for September 11? What elements determine this process of reduction and iconization? …

To me, the definitive picture was a New York Times photograph by Angel Franco (via an excellent “Digital Journalist” site): an African-American woman, the disaster reflected in her glasses, a fist clutched to her mouth, a tear rolling down her cheek, another woman behind her unable to watch. (Yes, Hirsch mentions the firefighters/flag photo, but I’m off that topic, go read for yourself). And I’ll never forget or forgive this or this or this.*

Hirsch also mentions those helpless, hopeless photo-memorials that sprang up all over the city:

For weeks, the faces on the posters were the only smiling faces in the city. The smiles were traces of another time — a vacation on the beach or a boat, a barbecue on the patio, a wedding, a moment of familial intimacy. These are images of people looking toward a future they were never to have.

And some of them had kids. If you buy a photo from the “Here is New York” exhibit, the net proceeds will go to the Children’s Aid Society WTC Relief Fund.

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* Warning. pause over the links to see if you want to follow them.