- The Washington Times - Thursday, March 4, 2004

KARLSRUHE, Germany — A German court yesterday overturned the world’s only conviction for the September 11, 2001, attacks and ordered a retrial for a Moroccan found guilty last year of aiding the Hamburg cell of suicide hijackers.

Mounir el Motassadeq’s conviction on more than 3,000 counts of accessory to murder and membership in a terrorist organization was flawed because the lower court failed to properly consider the absence of evidence from a key witness in U.S. custody, the Federal Criminal Court ruled. The jailed 29-year-old’s case returns to court in Hamburg.

“The defendant el Motassadeq is certainly far removed from being clear of suspicion,” presiding Judge Klaus Tolksdorf said.

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

After the appeal ruling, el Motassadeq’s attorneys said they would ask the Hamburg court to release the electrical-engineering student from custody.

Stephen Push, founder of the New York-based organization Families of September 11, said he was “frustrated” by the decision.

“I am hopeful that he can be [convicted],” Mr. Push, whose wife was aboard the plane that some of the hijackers crashed into the Pentagon, said by telephone from the United States. “I believe he is guilty.”

El Motassadeq’s attorneys argued that he was denied a fair trial because the United States refused to allow testimony by Ramzi Binalshibh, thought to be the Hamburg cell’s key contact with al Qaeda.

Binalshibh was captured in Pakistan on the anniversary of the attacks and is in U.S. custody.

The U.S. Justice Department has told the Hamburg court that Binalshibh is “not available.” Also, the German government refused to release transcripts of his interrogations, saying the United States provided them only for intelligence purposes.

El Motassadeq acknowledges knowing the hijackers. But he says he knew nothing about their attack plans, and maintains that Binalshibh could confirm this.

The Thursday ruling brought a new setback for prosecutors after the same Hamburg court last month acquitted el Motassadeq’s friend Abdelghani Mzoudi of identical charges for lack of evidence.

Mr. Mzoudi benefited from a statement presented by German investigators in which an unnamed source — thought by the court to be Binalshibh — said the only people in Hamburg who knew of the plot were hijackers Atta, Al-Shehhi and Jarrah, and Binalshibh.

Without ruling on el Motassadeq’s guilt, the appeals court said the lower court erred by failing to consider whether the lack of direct evidence from Binalshibh should have influenced its decision.

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

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