After three years of failing to hold anyone accountable for the attacks of Sept. 11, 2001, Germany is preparing to expel accused members of the Hamburg-based cell that led the hijackings and send them to countries with more aggressive records of prosecuting terrorism.
Although two criminal trials are still pending, German officials, legal experts and lawyers involved in the cases said the massive investigation into the al Qaeda cell has been stymied by this country's lax anti-terrorism laws, unfavorable judicial rulings and a lack of evidence, making it increasingly doubtful that anyone here will be convicted.
The state of affairs is apparent at the judicial complex in Hamburg, where one of the defendants, Mounir Motassadeq, is being tried on more than 3,000 counts of accessory to murder and membership in a terrorist organization. Despite the gravity of the charges, he is a free man, walking alone from his home to the century-old courthouse each morning, unguarded.
Motassadeq was convicted of the charges last year, making him the only person anywhere found guilty of playing a role in the Sept. 11 plot to attack targets in the United States. But he was freed in April, after an appellate court rejected the verdict as based on flimsy evidence and other legal deficiencies.
A retrial began in August and is scheduled to last at least two more months, but the basis of the prosecution's case has been undermined by its own witnesses, including one whom the presiding judge accused of "fantasizing" during his testimony. Attorneys for victims of the Sept. 11 attacks have filed a civil suit against Motassadeq, in part to prevent him from collecting as much as $50,000 in compensation from the German government for wrongful prosecution if he is acquitted.
In another sign of the widespread doubts surrounding the investigation, officials in Hamburg filed papers in July to deport Motassadeq and a second suspect, Abdelghani Mzoudi, to their native Morocco, a preemptive measure in case they are found not guilty or receive a light sentence.
Bernd-Ruedeger Sonnen, a law professor at the University of Hamburg, said German officials want to minimize any political embarrassment that would result from a failure by kicking the defendants out of the country as quickly as possible.
"It would be an affront to the U.S. population to acquit them," Sonnen said. "The German public is also asking: Why are the judges making it so difficult? Why can't we convict them? That's the huge problem that Germany now faces, and that's why Germany would be very happy to deport them to Morocco to rid themselves of this problem."
Tolerant laws
Meanwhile, German authorities are also trying to extradite to Spain another alleged member of the Hamburg cell, Mamoun Darkazanli, a Syrian-born German national. He has been indicted in Spain for allegedly playing a supporting role in the Sept. 11 attacks. He also has been listed as a terrorism financier by U.S. Treasury Department officials, who have accused him of being a longtime financial backer of al Qaeda and its leader, Osama bin Laden.
Germany has been investigating Darkazanli for years but has not charged him with any crimes. He remained free in Hamburg until last month, when he was arrested on a Spanish warrant seeking his extradition.
When it comes to dealing with Islamic radicals, Germany has some of the most tolerant laws in Europe. Before the Sept. 11 attacks, it was legal in Germany to belong to a foreign terrorist organization such as al Qaeda as long as it was not active inside the country.
Germany has also been slow to prosecute suspected terrorists wanted by other nations.
Last year, Italy filed charges against two other Islamic radicals from Hamburg who were acquaintances of the Sept. 11 hijackers. Italian prosecutors accused the two men, Abderrazak Mahdjoub and Mohamed Daki, of recruiting religious extremists from Europe to launch suicide attacks against U.S. troops in Iraq. German investigators said they had the men under surveillance in Hamburg but did not have enough evidence to arrest them.
German legislators have tried to stiffen their anti-terrorism laws in recent years and have made it easier to deport immigrants for belonging to Islamic radical groups. But police and prosecutors complain that they are still hampered by a legal code that was drafted after World War II in hopes of reining in Nazi-style abuses and places a greater burden of proof on German investigators than their counterparts in other European countries.
Motassadeq and Mzoudi have acknowledged that they visited al Qaeda training camps in Afghanistan and were close friends with the ringleaders of the Hamburg-based cell, including hijackers Mohamed Atta, Ziad Samir Jarrah and Marwan Al-Shehhi. Testimony and evidence also have shown that they gave legal and financial cover to the hijackers when they left Germany to prepare for the attacks.
But their attorneys have argued, successfully so far, that there is no proof that they intentionally aided in or knew specific details of the plot in advance, two elements necessary for a conviction.
Prosecutors suffered another setback at the start of Motassadeq's retrial in August, when the U.S. government provided the Hamburg court with summaries of interrogations of two captured al Qaeda leaders, Ramzi Binalshibh and Khalid Sheik Mohammad, whom investigators have described as the architects of the plot.
'Lost from day one'
German authorities had pressed the United States for more than a year to allow the two captives to testify, hoping they would bolster their case. Instead, the interrogation reports indicated that the hijackers did not tell Mzoudi, Motassadeq or anyone else in Hamburg of their plans in advance.
Dominic J. Puopolo Jr., a Miami Beach computer consultant whose mother was killed in the attacks, said it has been an uphill battle for the prosecution ever since.
"Everybody was saying this case was lost from day one," said Puopolo, who moved to Hamburg in August to keep tabs on the proceedings. "There was a heavy sense of that in the courtroom."
Puopolo attends the Motassadeq retrial each day and is allowed to question witnesses under a German law that gives the relatives of victims the right to assist in the prosecution. He said he planned to come to Hamburg only for the opening of the case, but decided to remain for the duration out of respect for his mother, Sonia Morales Puopolo, a passenger on the doomed American Airlines Flight 11 that took off from Boston.
Puopolo said U.S. investigators have played cockpit recordings for family members of the victims that make clear his mother was tortured by the hijackers before the jet crashed into the World Trade Center. Such knowledge, he said, makes it especially difficult for him to watch Motassadeq move freely through the courthouse and realize that there is a possibility no one in Hamburg will be held accountable.
"It takes enormous restraint sometimes," he said. "We have to remember that there's a very high threshold for guilt in this case. But you never know what happens in a trial. That's why you don't give up in the first days."
Prosecutors and the five-judge panel overseeing the trial said they still hope U.S. officials will provide fresh evidence or allow Mohammad and Binalshibh to be questioned directly. The German federal prosecutor, Kay Nehm, said Tuesday at a news conference in the city of Karlsruhe that U.S. officials had agreed to provide more information for the Motassadeq trial that he hoped would pave the way for a conviction.
Nehm did not give details about the information being sought. Spokesmen for the U.S. Justice and State departments did not respond to requests for comment.
The court has also sent invitations to members of the Sept. 11 commission to testify about the report they issued last summer, which described the formation and inner workings of the Hamburg cell in detail.
So far, however, there is no sign that the United States will be more forthcoming. Court officials said they have received no response from the Sept. 11 commission. The United States has given the German government classified reports about the Hamburg cell, but German intelligence officials notified the court two weeks ago that the documents could not be used as evidence in the trial because they were obtained on the condition that they remain secret.
In the meantime, little evidence has emerged since the retrial began in August that directly ties Motassadeq to the plot. Most witnesses have testified that they knew little about him other than that he was a close acquaintance of the hijackers.
"There's really no proof that he was involved," said Udo Jacob, one of his defense attorneys. "There's no proof that they discussed their plans with Motassadeq. It's only imagination."
Legal experts said it could take several months or years to expel any accused Hamburg cell members from Germany.
Darkazanli, the accused al Qaeda financier who holds German citizenship, is fighting his extradition to Spain. The German constitution generally prohibits the extradition of its citizens, but Darkazanli was arrested on the basis of a new warrant adopted last year by member countries of the European Union.
'A very hot issue'
The Hamburg businessman was scheduled to be extradited two weeks ago, but a German appellate court agreed to hear his case. Legal analysts predict it will rule whether the new European arrest warrant -- which officials call a major new weapon in fighting terrorism across the continent -- is constitutional.
"This is a very hot issue," said Christoph Safferling, a criminal law professor at the University of Erlangen-Nuremberg. "It is sort of the ultimate challenge to the European arrest warrant. This will be the test case."
Motassadeq and Mzoudi both came to Hamburg from Morocco in the 1990s on student visas. Their attorneys said that if they are found not guilty of the criminal charges, they would argue that there is no reason to deport them and they should be allowed to resume their studies.
"How can they prove he is a danger to someone if he has not been convicted of a crime?" said Hartmut Jacobi, a lawyer representing Mzoudi in his deportation case. "It's a good situation for us to be in."
Under a new German law, however, the government can deport immigrants even if they are only suspected of committing a crime, or if their expulsion would serve a broader "public interest."
The Moroccan government has no charges pending against either Motassadeq or Mzoudi. But their attorneys noted that the Moroccan government has a close working relationship with U.S. counterterrorism officials and has cooperated on other investigations involving al Qaeda.
In 2002, for example, Moroccan officials arrested Mohammed Haydar Zammar, an alleged recruiter for al Qaeda in Hamburg, as he was visiting the country on a trip from Germany. Moroccan investigators interrogated Zammar in a joint operation with U.S. officials, then put him on a plane two weeks later to Syria, where he was imprisoned and has not been heard from since.
Special correspondent Shannon Smiley contributed to this report.