BERLIN – In a dramatic turn in a Sept. 11 trial, the defense -- and now a growing segment of the German media -- is charging that the government's case against a terror suspect in Hamburg (search) is on the verge of collapse. But legal experts say the prosecution could still win a conviction.
The defense is citing the testimony of a German intelligence official who said the Hamburg cell of Sept. 11 suicide pilots became involved in Usama bin Laden (search)'s plot to attack the World Trade Center (search) only after four cell members attended Afghan training camps in late 1999.
The indictment alleges they had decided to attack the United States with hijacked airliners months earlier, before visiting Afghanistan.
Lawyers for Abdelghani Mzoudi, a Moroccan accused of supporting the Hamburg cell, immediately moved for their client's release from custody following the testimony Friday by German intelligence agency chief Heinz Fromm, arguing his timeline was inconsistent with the government's. The court is expected to respond this week.
"Federal prosecutors have built their case around the fact that the attack was planned in 1999 in Hamburg, and when that is not right, do the other charges against Mzoudi hold?" said defense lawyer Guel Pinar.
Fromm, testifying that the plot originated with bin Laden's terror network in Afghanistan, told the court that members of the Hamburg cell did not know the chosen targets or the plan to use airplanes until suicide pilots Mohamed Atta (search), Marwan al-Shehhi and Ziad Jarrah and suspected Al Qaeda contact Ramzi Binalshibh attended Afghan training camps in late 1999.
However, the indictment -- which charges Mzoudi with 3,066 counts of accessory to murder and membership in a terrorist organization -- says the group devised the plan in Hamburg in early 1999. Another Moroccan, Mounir el Motassadeq, was found guilty of the same charges, using identical arguments and timeframe, in February.
Legal experts say the purported discrepancies do not necessarily undermine the prosecution, although the German media has been quick to question the strength of the government's case.
"Of course, this by no means proves that he and el Motassadeq are innocent," Der Spiegel wrote in its latest issue. But "Fromm's testimony makes it more difficult to prove that the opposite is the case."
A Berlin daily, Der Tagesspiegel, raised doubts about el Motassadeq's conviction. "A double embarrassment is threatened. The second Al Qaeda trial in Hamburg against Mzoudi, using nearly the same indictment, could collapse."
A terrorism expert at the Federal College for Security Studies in Bonn said the supposed inconsistencies really aren't that at all. For example, even if the hijackers received their instructions in Afghanistan in late 1999, that does not disprove the government's assertion they formed an Al Qaeda terror cell that summer, intent on attacking the United States.
"In my opinion, Fromm's testimony didn't change much at all," said Kai Hirschmann, a terrorism researcher at the Federal College for Security Studies in Bonn. "But because now a public discussion has begun over what he said, I'm a little afraid this train will move onto the wrong tracks."
Still, Fromm's statements were not new.
His testimony basically repeated comments made by CIA Director George Tenet to Congress last year. And the German intelligence chief told the court that his assessment was based on material readily available to the public, such as an Al-Jazeera interview with Binalshibh aired shortly before his capture in Pakistan on the first anniversary of the 2001 attacks.
It was unclear why the defense hadn't introduced such evidence earlier, or why the prosecution hadn't altered its indictment to account for the new developments in the case since el Motassadeq went to trial.
Nevertheless, the government provided evidence in both trials that Atta and the others were actively involved in the Sept. 11 plot in Hamburg after returning from Afghanistan, locating flight schools and setting up payments for example.
This, experts say, should be enough to prosecute members of the cell under the German law at the time, which did not criminalize membership in a foreign terrorist organization, thus making it necessary to prove they were a domestic group.
"In that sense it doesn't really matter whether they agreed to the plot in Afghanistan or whether they developed it in Germany," said Stefan Oeter, a Hamburg University law professor who has been following the case.
The Fromm statements may force the panel of five judges to reconsider, but not necessarily disregard, testimony from two key witnesses who heard cell members talking about the plot in early 1999, Oeter said. One said el Motassadeq told him that Atta was "our pilot" and another heard al-Shehhi mention the World Trade Center and that there "will be thousands of dead."
"A court is used to getting contradictory evidence and the court has to make up its mind out of that," Oeter said.