Kerry’s Exaggerated Terror Problem
The Germans demonstrate the folly of the law-enforcement approach.


Andrew C. McCarthy

At a nationally televised debate on January 29, Massachusetts senator John F. Kerry delivered the jaw-dropping assessment that the threat of terrorism had been “exaggerated” by the Bush administration. Terrorism, he asserted, was “primarily an intelligence and law enforcement operation that requires cooperation around the world–the very thing this [Bush] administration is worst at.”

One might have thought it more than a tad daring for anyone to tell post-9/11 America that the jihadists who have killed thousands of us since 1993 are not so big a deal after all. It should have seemed even more startling coming from Senator Kerry, since he would lay the exaggerated problem in the lap of intelligence agencies whose funding he could not cut deeply enough as a lawmaker. But this is par for the course. After the Cold War, it was the need for intelligence itself that Senator Kerry thought was exaggerated. When the good senator uses that e-word, it’s probably time to start buying insurance.

Nor should it come as a surprise that Senator Kerry, far from being wounded by his remarks, steamrolled the rest of the Democratic field in the ensuing six weeks, securing the party’s nomination. For his words were lifted straight from the gospel according to Bill Clinton. They are an admirably succinct reflection of entrenched party orthodoxy. The salient question of the 2004 election is whether the rest of the country has been converted.

Oddly enough, a good place to start finding out is Germany. During the same week in which Kerry locked up the nomination, a German appellate tribunal was throwing out the conviction of Mounir el-Motassadeq, the only terrorist on the planet to have been tried for and found guilty of complicity in the September 11 attacks. This, moreover, marked the second time in a month that the German judicial system had rocked the world. In early February, Motassadeq’s friend and fellow Moroccan, Abdelghani Mzoudi, was acquitted by a Hamburg trial judge of the same 9/11 terrorism charges.

The Germans, of course, echo the widespread Democratic disdain for the Bush philosophy that terrorists are military enemies who cry out for a decisive military response. Berlin is far too nuanced for such benighted notions as enemy combatants, military tribunals, and preemptive strikes against an evil that would, in a heartbeat, destroy (and in fact may gradually be destroying) the rights and privileges of German civil society. Like Kerry, they are committed to an enlightened law-enforcement approach–and the cases of Mzoudi and Motassadeq are textbook examples of what that approach portends.

The two Moroccans were members of the Hamburg cell led by Mohammed Atta that spearheaded the carnage of September 11. Of that even Klaus Ruehle, the judge who acquitted Mzoudi last month, had little doubt. In court, both defendants pretended they were merely friends of Atta and the other cell members–hijackers Marwan al-Shehhi and Ziad Jarrah, and financier Ramzi bin al-Shibh (who would no doubt have been a hijacker had he not been unsuccessful in seeking authorization to enter the U.S. in 2001). The defendants’ stories, however, were risible: Both men were shown to have traveled to al Qaeda camps for terrorist training in the late 1990’s, and they were well known in Hamburg as virulent jihadists of the most anti-American, anti-Semitic stripe. Manifestly, their association with the Qaeda cell was no accident. Their conduct in support of the hijackers was extensive and blatantly purposeful–handling financial transactions and generally covering tracks in Germany so the hijackers could unobtrusively prepare for, and ultimately carry out, their deadly attacks in America. Mzoudi even helped prepare Atta’s will before the latter went off on his suicide mission.

Both Mzoudi and Motassadeq were charged with 3,066 counts of accessory to murder and membership in a terrorist organization. In the rarified progressivism of Germany’s law-enforcement system, that meant they faced a maximum, if convicted, of fifteen years in prison–i.e., a little less than two days per homicide. The laughable insufficiency of the penalty causes the Germans no embarrassment: They would not even consider extraditing Mzoudi and Motassadeq to the U.S., where the death penalty–that bane of European sensibilities–would have been a very real possibility.

Motassadeq was convicted after a five-month trial and sentenced to fifteen years. As his proceedings and, subsequently, Mzoudi’s multi-month extravaganza snailed along, the actual military war on terror–in which terrorists were killed or captured–proceeded in Afghanistan and Iraq. Other 9/11 plotters started being rounded up. These included Ramzi bin al-Shibh, one of the Moroccans’ Hamburg cellmates. Bin al-Shibh is reported to have made exculpatory statements about Mzoudi and Motassadeq–to the effect that they did not know the details of the 9/11 plot.

While the media have sensationalized this disclosure, it is so routine in these types of cases as to have been robotically predictable. Bin al-Shibh is toast. Because the Bush administration is handling him the way a military enemy who commits a war crime (the indiscriminate slaughter of 3000-plus innocents) ought to be handled, he will never again see the light of day. He has nothing to lose, so he is making some mischief in a transparent effort to help his fellow jihadists, who are not being treated seriously and who thus have an opportunity to slither out of their current straits and get back to the important business of plotting more American deaths from the safety of Hamburg. So he reportedly told his interrogators that the only people in Hamburg who knew of the 9/11 plot were himself and the three dead guys, Atta, al-Shehhi, and Jarrah. Yawn. This scenario is so commonplace that the American Federal Rules of Evidence expressly anticipate it. Because of their patent unreliability, interrogation statements that incriminate the maker but exculpate the accused are presumptively inadmissible at U.S. trials.

Not so in high-minded Germany, where such twaddle was regarded as grave and worthy of close inspection. U.S. authorities are reported to have shared bin al-Shibh’s conniving with their German counterparts, some of whom shared it with the judge and prosecutor in the Mzoudi trial. Immediately, the plangent posturing began: The Americans must make bin al-Shibh available; fairness demands that this critical exculpatory evidence be carefully probed. But when carefully probing Germany’s behavior, as well as Senator Kerry’s afore-described grandstanding about international cooperation, what’s actually critical is to recognize what is going on here.

The Germans well knew that bin al-Shibh’s paean to his confederates was incredible. The Mzoudi trial judge even said so. But the Germans hate the Bush administration’s rejection of the notion that terrorists are best attacked by legal proceedings in which predators benefit from mass disclosure of the government’s intelligence files. And they doubly resent the president’s prudent refusal to sign on to such farces as the International Criminal Court, where American soldiers and political leaders fighting to protect us can now be indicted as war criminals for failing to conform to European norms of appeasement and accommodation. They fully understood that a) the U.S. was never going to hand bin al-Shibh over, since there would have been no assurance that we’d get him back and he’d then be looking at max fifteen years instead of lethal injection; b) the U.S. was not going to make bin al-Shibh otherwise available to a German court, since we have already refused to do that for an American court in the case against Zacharias Moussaoui (who, unfortunately, was indicted in a civil court instead of held for an eventual military tribunal, and who has thus learned–as have Mzoudi and Motassadeq–that a defendant can easily gum up the works of his prosecution simply by demanding access to intelligence from captured al Qaeda leaders); and c) bin al-Shibh would certainly have refused to testify in a court proceeding in a manner consistent with his interrogation, for to do so would effectively have been to confess to a capital offense.

The Germans, however, engaged in the high-profile gamesmanship that legal proceedings enable in an effort to embarrass the U.S., to extort us into bending to European practice (selling out our steadfastness in the Moussaoui case in the process), and to imply that Bush’s no-nonsense military approach has somehow run roughshod over the apparently universal “rights” of terrorists–who, it might be remembered, are not Americans, have no connection to our country except to have helped launch the most devastating single assault on the homeland in history, and who thus have no rights under our Constitution (particularly in a German trial).

President Bush declined to be manipulated. The Germans responded by raising the stakes: Notwithstanding persuasive evidence of guilt, Mzoudi was acquitted in February and, on March 5, Motassadeq’s conviction was reversed on appeal. The German courts announced that, even though they found that bin al-Shibh’s statements lacked veracity, German law requires that all evidence be made available whenever possible. In light of American obstinacy, they ruled, bin al-Shibh’s exculpatory snippet had to be taken at face value, and the defendants had to be found not guilty. The German prosecutor dutifully parroted the party line that the U.S. was responsible for this turn of events. You might wonder whether the Germans would have played this charade had bin al-Shibh been in the custody of, say, Iran.

The prospects here are not good. The Germans have dug in, and the Bush administration can be expected to stick to its guns. Even if the U.S. foolishly relented, it would not solve the problem: Like Moussaoui, Mzoudi and Motassadeq would simply start insisting that their fair trial rights would not be satisfied unless the U.S. also handed over other the captured combatants as well as any intelligence that might touch on al Qaeda and the 9/11 attacks. To accede to this would be to surrender to the view, now championed by Senator Kerry, that the way to confront terrorists is to arm them with trial-discovery information that, in their hands, is a perilous threat to American national security.

Meanwhile, these 9/11 plotters could be free and clear. Germany rounds out its criminals’ insurance with the lofty principle of ne bis in idem–a sort of super double-jeopardy doctrine that bars a second prosecution not only for the same charge but for any charge that is based in part on the same evidence that has already been presented in an earlier trial. Under court rulings, it is theoretically conceivable that the defendants could face new trials in Germany. But as long as they have the good sense to remain in that country (and most of Europe), ne bis in idem means they will be safe from American extradition.

This case raises some hard questions for Senator Kerry: For example, Senator:

You say that terrorism is a law-enforcement issue. As a former prosecutor, you know that a criminal trial requires disclosing to the accused all information in the government’s possession that could be considered material to the preparation of the defense; all prior statements made by government witnesses (and often witnesses not called by the government); and any information that even arguably suggests that the defendant is not guilty, that the crime was committed in a manner different from the government’s theory of its commission, or that might induce the jury to vote against the death penalty. Is handing over to our enemies this treasure trove of intelligence what you favor? If not, what exactly is it that the president is doing wrong?

The atrocities of the past eleven years have demonstrated that there are thousands of anti-American terrorists in al Qaeda and its affiliated organizations. In the eight years from 1993 to 2001, when terrorism was regarded as a law-enforcement issue, we managed to prosecute about 40 terrorists in trials that generally took six months or more, and terrorist attacks nevertheless continued apace. On the other hand, since October 2001, our military has killed or captured thousands of terrorists and there have been no domestic attacks. Why are trials better than military operations?

In legal proceedings, foreign terrorists have been given the full panoply of American constitutional rights, and at least one federal court has held that they have a Fifth Amendment privilege and should be given Miranda warnings when they are apprehended overseas. Is this what you mean when you say terrorism should be handled as a law-enforcement matter? If not, which rights would you deny to captured terrorists?

Aside from being a law-enforcement issue, you say terrorism is an intelligence matter. Yet, although Americans were repeatedly attacked and killed by terrorists, you have voted to cut funding for intelligence agencies. Why should anyone believe you are serious about fighting terrorism if you gut what you say is the key protection against it?

You say the administration is inept at securing international cooperation. Since the September 11 attacks, in his military approach, President Bush has assembled a vast multi-national coalition that has killed and captured thousands of terrorists, who consequently are no longer a threat to the United States. The administration is, however, at an impasse with Germany, which is pursuing the law-enforcement approach that you favor. What is your idea of international cooperation, exactly? Should we hand captured terrorists over to countries who rate the murder of 3000 people as a fifteen-year offense? Would you reveal sensitive national-security information so that it can be shared with terrorists in foreign trials? Would you give Mzoudi and Motassadeq access to bin al-Shibh so they can learn what else he has told us? Would you do the same for Moussaoui? If not, how exactly has President Bush mishandled international cooperation?

At this moment in history, no answers matter more.

Andrew C. McCarthy led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman. He currently consults part-time with the Department of Defense. The views expressed here are strictly his own.