IN LANDMARK CASE, DUESSELDORF COURT CONVICTS THREE FOR

UNCLAS SECTION 01 OF 02 DUSSELDORF 000034

SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: PTER KJUS KLIG KISL GM
SUBJECT: IN LANDMARK CASE, DUESSELDORF COURT CONVICTS THREE FOR
SUPPORTING AL-QAEDA

REF: A) DUESSELDORF 30; B) DUESSELDORF 22

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Sensitive But Unclassified -- Not for Internet Distribution


1. (U) After a trial lasting more than 18 months, the
Duesseldorf Higher Regional Court on December 5 convicted Syrian
national Ibrahim Mohamed Khalil (32) and the Palestinian
brothers Yasser Abu Shaweesh (34) and Ismail Abu Shaweesh (30)
for belonging to and/or supporting al-Qaeda -- AQ (Ref B).
Khalil, an asylum seeker whose nationality has since been
established as not Iraqi as he previously claimed, and the elder
Shaweesh, a former medical student, received seven and six year
terms, respectively, for belonging to AQ, attempting to recruit
combatants, attempting to purchase 48 grams of radioactive
material for a "dirty bomb," and committing 28 counts of
insurance fraud valued at more than 4.3 million euros for the
benefit of AQ (about 20 percent of which was destined for AQ,
with the remainder going to their private consumption). The
younger Shaweesh, who received a three and one half year term
for a more diffuse form of support for AQ and for complicity in
insurance fraud, was released following the sentence because
German law allows the release of a person who has served 2/3 of
his/her sentence while in detention. The trial, which took
place on 131 separate days and included testimony from more than
200 witnesses, was repeatedly delayed by procedural and other
maneuvers.


2. (U) The defense immediately lodged an appeal, in part
arguing that evidence derived from electronic eavesdropping is
unconstitutional and that legal requirements, including in the
state of Rhineland Palatinate, were not properly followed.
Higher Regional Court Press Spokesman Dr. Ulrich Thole told the
CG December 6 that the Appeals Court in Karlsruhe will issue a
final written decision by June 2008, which will also cement the
legality of this (oral) verdict.

Landmark Case
--------------


3. (SBU) Calling the sentences a "path breaking decision,"
Presiding Judge Ottmar Breidling said the case was the first in
Germany in which defendants have been convicted of membership in
a foreign terrorist organization, a crime that became law in
August 2002. Thole confirmed that this was also the first
terrorism case in Germany in which law enforcement and judicial
authorities successfully used evidence derived from secret
electronic eavesdropping of defendants' private living quarters
in obtaining convictions. He added that the eavesdropping was
critical to obtaining the verdict, but that it also presented
challenges (e.g. audibility, language issues, and relevant
evidence gathered during Muslim prayer, which is protected).
The eavesdropping was made possible by a 16 January 1998
Bundestag law amending the German constitution and enabling
authorities to monitor individuals' living quarters.


4. (U) Note: The 1998 law is widely referred to in Germany as
"der grosse Lauschangriff," whose literal translation -- "major
bugging attack" -- only awkwardly captures the negative manner
in which many German commentators in politics and the media
refer to it. On March 2, 2004, the Constitutional Court in
Karlsruhe ruled that the 1998 law was indeed constitutional, but
required that several aspects of law needed to be amended, which
the Bundestag did on June 24, 2005. This law is not to be
confused with the "kleine (minor) Lauschangriff," which permits
eavesdropping in public places. End Note.

Comment
--------------


5. (SBU) This verdict is a major victory and precedent setting
case for German efforts to combat terrorism through the courts.
It also reaffirms the reputation of Presiding Judge Ottmar
Breidling as one of Germany's most pro-active, thorough and
committed legal figures in the field of counter-terrorism (Ref
A). He expressed satisfaction that he was able to prove in
court that AQ is a concrete organization and not, as the defense
argued, a diffuse ideological movement. This, he said, was a
prerequisite to the verdict. It will be important to watch the
effects of this case on legal and political thinking in Germany,
as well as how public debate and practice over electronic
eavesdropping evolves. The "legal grey areas" mentioned in some
media commentary refer to eavesdropping undertaken between the
March 2, 2004 Court and the amendment of the law by the
Bundestag on June 24, 2005. Editorial comment in the NRW media
has been overwhelmingly positive regarding the admissibility and
acceptability of eavesdropping of private living quarters in
cases dealing with terrorism, a view law enforcement authorities
here share.


6. (SBU) German critics of the Administration's legal approach
to the War on Terrorism may use this case to illustrate the view
that terrorism cases can be tried successfully in civilian

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courts. We note that Breidling also publicly highlighted the
unusually long and complex legal process that produced his
decision. He remains frustrated with the means currently at the
disposal of the German state to try terrorism cases, calling
them "too restrictive" and a "dull sword," comments some
national papers found objectionable, arguing that a presiding
judge should only pronounce on a case, and not express views
about the adequacy of laws and procedures. The conviction was
indeed only possible because police followed exactly the
detailed legal prescriptions set forth by the Constitutional
Court in its March 2004 ruling. Had any procedural oversights
taken place along the way, the defendants would have been
released.
BOYSE