Image: Mounir el Motassadeq
Christof Stache  /  Pool via Reuters file
Moroccan Mounir el Motassadeq is pictured in Hamburg in this Feb. 12, 2003 photo.
msnbc.com news services
updated 3/4/2004 10:00:47 AM ET 2004-03-04T15:00:47

A German appeals court on Thursday ordered a retrial for the only person convicted in the Sept. 11 attacks, a Moroccan found guilty last year of aiding the Hamburg cell of suicide hijackers.

The Federal Criminal Court overturned Mounir el Motassadeq's conviction on more than 3,000 counts of accessory to murder and membership in a terrorist organization. The 29-year-old's case was sent back to a lower Hamburg court.

"The case is to be sent back to another panel of judges at the Hamburg court for a new trial and decision," Presiding Judge Klaus Tolksdorf said in reading the verdict.

Tolksdorf did not immediately explain the verdict, but el Motassadeq's lawyers have argued he was denied a fair trial because the United States refused access to a key witness.

El Motassadeq is serving a 15-year prison sentence after a Hamburg court convicted him in February 2003 of giving logistical support to the Hamburg-based al-Qaida cell that included Sept. 11 suicide hijackers Mohamed Atta, Marwan al-Shehhi and Ziad Jarrah.

An electrical engineering student in Hamburg, el Motassadeq has denied the charges.

Founder of victims family group ‘frustrated’
Stephen Push, founder of the New York-based Families of Sept. 11 organization, said he was “frustrated” by the decision.

“I am hopeful that he can be (convicted),” Push, whose wife was aboard the plane that crashed into the Pentagon, said by telephone from the United States. “I believe he is guilty.”

State prosecutor Rolf Hannich said the court had dealt the war on terror a serious setback.

“It is quite clear that higher hurdles have been set for the prosecution of terrorism,” he said.

The U.S. Embassy declined to comment.

El Motassedeq's lawyers had asked the appeals court for acquittal or a retrial, alleging he was wrongly convicted because the United States refused to allow court testimony by Ramzi Binalshibh, thought to be the Hamburg cell's key contact with al-Qaida.

Binalshibh was captured in Pakistan on the anniversary of the Sept. 11, 2001, attacks and is in secret U.S. custody.

The same Hamburg court last month acquitted el Motassadeq's friend Abdelghani Mzoudi of identical charges for lack of evidence.

Binalshibh's absence was a factor in that decision, though the acquittal did not directly affect el Motassadeq's appeal.

The U.S. Justice Department has told the Hamburg court that Binalshibh is "not available." The German government refused to turn over transcripts of his interrogations, saying they had been provided by the United States for intelligence purposes only.

Germany’s federal prosecutor, Kay Nehm, criticized the United States last month after Mzoudi's acquittal, saying that it had failed to make available information from captured suspects that could help secure convictions. He called U.S. conduct “incomprehensible.”

Defendant denies he knew of hijacking plans
El Motassadeq acknowledges knowing the hijackers, but denies that he knew anything of their plans and maintains that Binalshibh could confirm it. The Moroccan's lawyers say the court should have pressed the matter further before giving him the maximum sentence.

"Without this key witness, the rest of the evidence is not sufficient for a conviction," defense attorney Josef Graessle-Muenscher said.

In convicting el Motassadeq, the Hamburg court cited a mosaic of evidence that included his payment of tuition and rent for other cell members. That helped them maintain appearances of a normal student life in the city while plotting the attacks, the court said.

Federal prosecutors had wanted to see el Motassadeq's conviction confirmed, insisting that the Hamburg court made every effort to get Binalshibh's testimony. But experts believe a retrial is likely after critical questioning by the appeals judges at a January hearing.

El Motassadeq's lawyers also argued that al-Qaida hatched the Sept. 11 plot in Afghanistan and the hijackers trained to fly in the United States, so Atta's group did not constitute a German-based terrorist organization under laws in force at the time.

The Associated Press and Reuters contributed to this report.

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