Witness Unavailable:
How the U.S. Hinders Terrorism Prosecutions Abroad

By JOANNE MARINER

Wednesday, Mar. 17, 2004

The deadly bombings last week in Madrid, which now appear to be the work of Al Qaeda, lend further support to the notion that terrorism is a global threat that demands coordinated international action. But while the United States has made a strong rhetorical commitment to international cooperation in fighting terrorism, it has also, in practice, hindered other countries' efforts to bring terrorists to justice.

Recent setbacks in the prosecution of suspected terrorists in Germany and Indonesia have underscored this problem. By barring other countries' courts from gaining access to people held in incommunicado detention -- mostly notably, alleged al Qaeda operatives Ramzi bin al-Shibh and Hambali -- the U.S. has thwarted key prosecutions abroad.

This U.S. law enforcement unilateralism has to stop. In Spain, as investigators and prosecutors piece together evidentiary leads from the worst act of terror in that country's history, U.S. cooperation may turn out to be crucial. If, indeed, the perpetrators of last week's attacks are part of a global network, it will require a coordinated international law enforcement effort to bring them to justice.

The Spanish courts will very likely need the testimony of leading al Qaeda suspects now in U.S. custody. It would be unwise -- and in the view of the Spanish public, unforgivable -- for the U.S. to deny them such access.

International Law Enforcement Cooperation in the Fight against Terrorism

After the September 11 terrorist attacks in New York and Washington, U.S. officials stressed that international law enforcement cooperation would be a pillar in the fight against terrorism. "Remember, this war will be fought on a variety of fronts," declared President George W. Bush, stressing cooperative international relationships. Bush specifically noted that, given the global threat of terrorism, "the sharing of information is vital."

But in practice the U.S. has jealously guarded its most direct sources of information about global terrorist networks. All of the high-profile and notorious terrorist suspects that the U.S. has captured in recent years have been held in incommunicado detention in undisclosed locations. Neither the U.S. federal courts nor foreign courts have been allowed access to these detainees, who include Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Abu Zubaydah, and Hambali.

While the U.S. has in some instances provided foreign intelligence services with summaries or partial transcripts of its interrogations of these men, such documents cannot satisfy the courts. In criminal prosecutions -- where potential sentences are heavy -- defendants have the right to direct exculpatory testimony, and to cross-examine witnesses against them. A piece of paper is not enough, especially when no one can assess the reliability of the information on that paper, or the circumstances under which it was obtained.

Moussaoui, el-Motassadeq, and Mzoudi

The U.S. refusal to grant access to these detainees has already harmed the prosecution of Zacarias Moussaoui. Moussaoui, the sole defendant being tried in the United States for the September 11 attacks, claims that alleged terrorist mastermind Ramzi bin al-Shibh and three others in U.S. custody could attest to his lack of culpability. The district court ruled in Moussaoui's favor and limited the scope of his prosecution, a decision that is now being reviewed on appeal.

In other countries, the damage caused by the U.S. approach has been even more tangible. In early March, a German appeals court overturned the conviction of Mounir el-Motassadeq, a man previously sentenced to fifteen years' imprisonment for aiding the September 11 hijackers. El-Motassadeq's lawyers had tried to obtain the testimony of Ramzi bin al-Shibh, allegedly the defendant's key Al Qaeda contact, but the U.S. government had said that he was "unavailable."

Echoing the reasoning of the Moussaoui court, the German appellate tribunal ruled that the U.S. refusal to supply bin al-Shibh's testimony had unfairly limited el-Motassadeq's defense. Because the verdict was critically tainted, it ordered that the defendant be retried. And there is little doubt that bin al-Shibh's testimony -- or lack thereof -- will be the fulcrum on which the new trial's outcome hinges.

A close precedent for an acquittal based on the denial of evidence already exists. In February, a month before the al-Motassadeq ruling, another German court absolved Abdelghani Mzoudi of complicity in the September 11 attacks. Mzoudi, an associate of al-Motassadeq, was charged with membership in the same Hamburg terror cell, and he had similarly demanded access to bin al-Shibh.

The judge that freed Mzoudi made clear his reluctance to do so. He told Mzoudi that he was being released "not because the court is convinced you are innocent," but because, under the rules governing criminal prosecutions, "the defendant must not bear the burden of missing evidence." Ramzi bin al-Shibh, the absent witness, had determined the outcome of the case.

Bashir and Others

In Indonesia, too, similar issues are arising. Muslim cleric Abu Bakar Bashir, whom the U.S. accuses of "intense and deep involvement" in terrorism, will soon be released from prison, since his sentence for a relatively minor offense was just cut in half. Although U.S. officials have expressed dismay about Bashir's release, they have also denied Indonesian law enforcement authorities access to testimony that might strengthen the case against him.

Indonesian terrorist suspect Riduan Isamuddin, known as Hambali, has been in U.S. custody since his August 2003 arrest in Thailand. The Indonesian authorities claim that Hambali's testimony would be crucial to the successful prosecution of terrorism in their country, but they have been unable to convince the U.S. to grant them access to him.

A comparable dynamic may soon emerge in Spain. Spanish prosecutorial officials have already concluded that Ramzi bin al-Shibh and other terrorist conspirators made final preparations for the September 11 attacks at a group meeting in Tarragona, Spain. If prosecutors link some of the people implicated in the Madrid attacks to this same group, then they will almost certainly seek bin al-Shibh's testimony.

Detentions Outside the Law

The shroud of secrecy around U.S. custody of men like bin al-Shibh and Hambali is worrying enough. The detainees are held incommunicado in undisclosed locations, with no charges and no judicial oversight of their treatment; they are not even allowed visits by the International Committee of the Red Cross.

But even if one ignores the compelling human rights objections to these detentions, and focuses solely on their effectiveness, they remain objectionable. It is short-sighted and unwise to hold people outside of the law, when it is the law's very protections that provide our best long-term defense against terrorism.

It is the operation of law that allows us to distinguish the guilty from the innocent, and to put the guilty behind bars. This is what courts here, in Germany, and elsewhere have been trying to do. The U.S. should support their efforts, not hinder them.


Joanne Mariner is a human rights attorney based in New York. Her previous pieces on the prosecution of Zacarias Moussaoui and on the detention of terrorist suspects may be found in FindLaw's archive.

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