Transatlantic Solidarity Tested in Terrorist Case

After September 11, the German government pledged "unlimited solidarity" to the United States in the international war against terrorism. Troops bearing the German flag were dispatched to Afghanistan and the Horn of Africa. German authorities also became active in the investigation of suspected and known terrorists - especially those linked to the Hamburg cell that planned the attacks in New York and Washington.

Nine months on, "unlimited solidarity" is turning to critical solidarity as fundamental differences between the two countries hinder aspects of their unified fight against terror.

Germany's ban on capital punishment has creating problems for transatlantic legal cooperation. The limits of such cooperation are underscored by the current legal proceedings against Zacarias Moussaoui.

The path to the so-called "20th hijacker" goes all the way to the Hamburg-based terrorist cell in which Mohammed Atta was active. Officials in the U.S. arrested Moussaoui, who is of French-Morrocan origin, on August 16 because they became suspicious about his training at a Minnesota aviation school.

U.S. officials now believe that Moussaoui intended to be the fifth hijacker on the United Airlines flight that crashed in rural Pennsylvania on September 11. The flight carried only four hijackers, whereas the other planes each carried five. Had he not been behind bars, they say Moussaoui would have been on the jet, too.

A vexing constitutional issue

In his upcoming trial on six counts of conspiracy to commit terrorism, Moussaoui is now being treated as a proxy for his suspected collaborators, and he's even being threatened with the death penalty. That's where the problems start.

U.S. justice officials have requested that Germany hand over files on financial transactions involving Moussaoui that they say could help convict him.

The smoking gun

At the center of the dilemma are two money transfer slips found by investigators in the basement of the Reisebank in Frankfurt, which U.S. authorities say contain crucial evidence against Moussaoui. According to the newsmagazine Der Spiegel, a young Arab man going by the name Ahad Sabet twice wired funds from the Reisebank to Moussaoui via Western Union.

In total, $14,123 in funds were transferred in order to pay for Moussaoui's pilot training at the Pan Am Academy.

Authorities believe that Sabet was an alias used by Ramzi bin al-Shibh, a close associate of Mohammad Atta who is now one of the most-wanted suspected terrorists in the world. Both the finger prints and handwriting on the document matched those of bin al-Shibh, according to Der Spiegel.

German investigators provided copies of the documents to U.S. prosecutors, who have cited them extensively in the charges filed against Moussaoi. But U.S. law requires that only original documents be used as evidence in a criminal trial.

Seeking a deal

For months, German negotiators have sought to strike a deal with American prosecutors: If the Americans agree not to impose the death penalty, the German government would turn over the originals.

"The responsible authorities must very carefully examine whether one can assume that legal aid in such a case, where the death penalty will possibly be spoken of, is illegal," says Christian Tomuschat, a professor at the Human and European Rights Instititute at Humboldt University in Berlin. "The ban on capital punishment is part of the foundations of the German law."

German law, for example, unambiguosly prohibits the extradition of a suspected criminal if the other country is threatening to carry out the death penalty.

"Such a specific rule does not exist for legal aid alone. But it is also implicit in the logic of the ban of the death penalty to say, we also need to be reserved when it comes to a proceeding in a foreign country where the death penalty could be used in the end," Tomuschat notes.

German Chancellor Gerhard Schröder told the International Herald Tribune on Tuesday that the U.S. and Germany are close to striking a deal on the transfer of the evidence. "It's exclusively to do with differing legal systems," he said. "I think that a common solution will be found very soon."

"Constitutional norms must be respected"

The 40 countries of the European Council have long banned the use of capital punishment and have generally refused to extradite suspects to any country threatening to impose it. Governments attempt in such cases to reach an agreement with the country seeking the extradition that it will not carry out the execution of the suspect if convicted. The same holds true for handing over evidence that could aid in a conviction.

"Effectively combating terror must be in the foreground, but it's well understood in the United States that constitutional norms must be respected," Schröder said.

France has also said it will withhold evidence relating to Moussaoui if the U.S. does not agree to set aside the possiblity of the death penalty.