Attorneys for a Moroccan on trial in Germany for alleged involvement in the Sept. 11, 2001, attacks are pinning hopes of acquittal on securing last-minute access to a secret CIA interrogation report.
The German government received the report from the CIA and has shown it to prosecutors in the case. But the government is resisting defense attorneys' efforts to obtain it. The report details statements of a leading member of the Hamburg-based cell that plotted the attacks, Ramzi Binalshibh, who was captured in Pakistan last September and is now in CIA custody at a secret location.
Attorneys for Mounir Motassadeq, 28, who is being tried on 3,000 counts of accessory to murder, argued that statements Binalshibh gave to the CIA will show that their client did not know of plans to hijack the U.S. airliners that were subsequently flown into the World Trade Center and the Pentagon. That would mean he is innocent of the accessory charges, they said.
As the trial nears its end, the defense attorneys have filed emergency motions with three German appeals courts seeking the report's release to them.
"The witness Binalshibh is not only the closest witness to the crime," the attorneys said in court filings, "but also the only living, available witness for the proceedings." Earlier, the defense tried unsuccessfully to call him to testify in person.
U.S. and German officials have not said what Binalshibh told his interrogators about Motassadeq's role.
The German government contended that the transcripts are secret and that releasing them would violate an agreement with the United States. "They were provided through an intelligence agency in the U.S., but with the strict limitation that they may only be evaluated by intelligence agencies and security officials," said a filing by the office of German Chancellor Gerhard Schroeder. It argued that German intelligence officials would be "shut out" by the U.S. government if Binalshibh's testimony were made public.
But defense attorneys argued that because the transcripts were handed over to trial prosecutors for review, they are legitimately part of the court proceeding and not protected intelligence material. They also noted that prosecutors have admitted destroying their copies of the transcripts after reading them, a potentially illegal act.
Legal experts here said prosecutors have a legal and ethical obligation to turn over to the defense any exculpatory material or material open to interpretation on the question of innocence or guilt.
The defense has argued throughout the case that Motassadeq, who acknowledged having known the Hamburg-based hijackers, was an unwitting, bit player in the Sept. 11 plot, with no knowledge of what the hijackers were going to do. Motassadeq has admitted, however, to training at terrorist camps in Afghanistan, which would expose him to conviction on the lesser charge of membership in a terrorist organization, which carries a five-year term.
Legal analysts said the clash over the transcripts is likely to go to Germany's highest court and could delay the outcome of Motassadeq's trial. The fact that prosecutors have admitted destroying potentially relevant material could lead to the declaration of a mistrial, experts said. The case is the first prosecution of a suspected participant in the attacks on the United States.
On the accessory charge, which carries a maximum sentence of 15 years, prosecutors must show that Motassadeq had prior knowledge of the Sept. 11 plot, according to German law professors and lawyers.
"If . . . there are no indications of proof that a person knew what was planned, then a person cannot be convicted as an accessory to murder," said Peter-Alexis Albrecht, professor of criminal law at Frankfurt am Main University. "The person, if aware that something -- but not aware of what that something is, specifically -- would take place, could be convicted for not reporting a crime, but not as an accessory to murder."
Investigators have said Binalshibh played a key organizational role in planning the attacks, acting as liaison between the leadership of the al Qaeda terrorist network and the hijackers. The defense argued that because Binalshibh knew the details of each part of the plot and its participants, he could clarify Motassadeq's exact role and level of knowledge before Sept. 11.
Binalshibh and two other suspected members of the cell fled Germany shortly before the attacks. Motassadeq, however, remained in Germany, as did a number of other suspects, and his attorneys have offered this as evidence that he did not know the attacks were about to happen.
Another terrorism suspect, Mohammed Haydar Zammar, said by investigators to have been al Qaeda's chief recruiter in Hamburg, told Moroccan and U.S. officials after his arrest in Casablanca in late 2001 that he did not know about the attacks until he saw them on television.
"He knew nothing specific," a Moroccan official said in a recent interview detailing Zammar's 15-day interrogation in Morocco. The official added that he believed Motassadeq was also outside the inner circle. "They knew [the hijackers] were doing something, but not to the point of doing what they did in the U.S.," the official said.