TERRORISM TRIAL AGAINST GERMANY'S FIRST "CYBER JIHADIST

UNCLAS SECTION 01 OF 03 HAMBURG 000061

SIPDIS

DEPARTMENT FOR EUR/AGS, EUR/PPD, L/LEI, AND S/CT
JUSTICE FOR BARBARA BERMAN AND PATRICIA REEDY
SIPDIS

E.O. 12958: N/A
TAGS: PTER KJUS PREL ASEC KVPR GM
SUBJECT: TERRORISM TRIAL AGAINST GERMANY'S FIRST "CYBER JIHADIST
OPENS

REF: A. A) HAMBURG 053

B. B) BERLIN 1398

C. C) 06 BERLIN 3323

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SENSITIVE


1. (SBU) SUMMARY: The trial against alleged "cyber jihadist"
Ibrahim Rashid opened on September 26 before the Higher Regional
Court in Celle, Lower Saxony. According to the prosecution,
these procedures are unique in that it is the first time that
someone in Germany has been charged for jihadist activity
carried out completely over the Internet from a PC at home.
Rashid has been charged with 28 independent counts of having
promoted membership in and support of Al Qaeda and Al Qaeda in
Iraq in the period between October 6, 2005 and October 1, 2006
(ref. A). The Defense Counsel argued that the charges impeded
Rashid's right to freedom of speech and freedom of information.
Rashid reserved his right not to testify. Rashid potentially
may be released from imprisonment on remand since continued
detention might be found disproportionate. Hamburg Consulate's
Pol/Econ staff attended the hearing. END SUMMARY.

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Background on Legal Basis for Prosecution, the Accused and
Parties of the Trial
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2. (SBU) In the one-day hearing Chief Judge Dr. Wolfgang Siolek
stated that the Federal Justice Ministry authorized the Federal
Prosecutors Office on September 18, 2002 to criminally prosecute
activities of Al Qaeda and Al Qaeda in Iraq. He also remarked
that the Federal Justice Ministry issued an additional
authorization dated August 14, 2007 to criminally prosecute
individuals who promote membership in and support Al Qaeda in
Iraq from Germany. Rashid is an Iraqi citizen of Kurdish
ethnicity and Sunni faith, who was born on July 1, 1970 in
Kirkuk. He is married to Shilan Ismail and has four children.
Rashid was arrested on October 10, 2006 based on a September 28,
2006 arrest warrant (ref. A). Siolek, who has experience with
PKK (Kurdish Workers' Party) terrorism trials, chaired the panel
of judges. The Federal Prosecutors Office is represented by
Peter Ernst and Wolfgang Mertig. Klaus R|ther and J|rgen
Mvthrath are Rashid's defense attorneys.

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Prosecution: Accused Contributed to Global Jihad from His Home
PC
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3. (SBU) The prosecution's reading of charges consisted of two
parts: an extensive description of the terrorist organization Al
Qaeda, and a meticulous account of the charges against the
accused. Federal Prosecutor Ernst pointed out that Al Qaeda
aims to create Islamic theocracies and combat the western world
- particularly the U.S.A. and Israel - through global jihadist
activities. He listed a number of past and more recent
terrorist attacks and used the attacks on U.S. embassies in 1998
and on New York and Washington on 9/11 as reference points. He
underscored that despite terrorist networks having largely been
defeated following 9/11, terrorists are still being fought in
the Afghanistan/Pakistan border region and in Pakistan. He
pointed out that Al Qaeda is still able to carry out
centrally-ordered terrorist acts to a limited degree and cited
the attacks on the synagogue in Djerba on April 11, 2002 and
planned attacks on U.S. financial institutions in Pakistan
uncovered on July 13, 2004 as evidence of that ability. Ernst
also reiterated that Al Qaeda supports local networks such as Al
Qaeda in the Islamic Maghreb. Moreover, Ernst said that Al
Qaeda still holds the leadership position with respect to
terrorist activity and carries out its propaganda through
audio/video messages that contain calls for attacks and provide
strategic direction. He repeatedly pointed out that the
Internet is of central importance to terrorists, as their "war
is largely carried out over the Internet."


4. (SBU) Ernst sought to establish a direct connection between
the overarching Al Qaeda terrorist network and Rashid's actions
in Germany. He said that Rashid disseminated audio and video
messages of Al Qaeda's leadership (e.g. Osama Bin Laden, Ayman
Al-Zawahiri and Abu Musab Al-Zarqawi),engaged in jihadist chat
room discussions, created lists of hyperlinks leading to
extremist content, and spread his own written jihadist messages
over the Internet. He stressed that Rashid was active in chat

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rooms that are exclusively jihadist-oriented and that are
directly aimed at recruiting fighters for the global jihad.
Ernst stated that Rashid adopted a jihadist ideology, for
example with respect to the combat against coalition forces in
Iraq, and that he authored approving statements which he spread
over the Internet. Ernst pointed out that Rashid used nine
aliases such as "Kurdistan_26," and "3mer_Kurdi" to conceal his
identity. Ernst further elaborated on each of the 28
independent counts of Rashid's alleged promotion of membership
in and support of Al Qaeda and Al Qaeda in Iraq during the
period between October 6, 2005 and October 1, 2006. His
elaboration was extremely specific, providing precise details on
the duration of dsl-connections and the content of Internet
websites and chat room contributions.

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Defense Pleadings and Prosecution Rebuttal
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5. (SBU) Defense lawyer R|ther opened his pleadings with the
following statement: "Asked by friends and colleagues how one
could defend a terrorist these days, let alone one who is
accused of supporting Al Qaeda, there is only one answer: from
the perspective that freedom of speech and freedom of
information must be defended." R|ther stated that although the
Rashid's entire Internet traffic was recorded, phones were
tapped, post and banking traffic were monitored, and movements
were put under surveillance; authorities were unable to
ascertain concrete terrorism promotion actions, such as urging
people to join the jihad or fight in Iraq or Afghanistan.
R|ther added that the prosecution could not ascertain money
transfers for terrorist organizations, membership in Islamist
organizations, or visits to radical mosques in Germany. R|ther
stated that it could not be established that Rashid himself
called for terrorist actions "in the real world or on the net."



6. (SBU) The defense counsel's pleadings culminated with the
statement: "This trial will show whether this state of rule of
law is willing to convict an individual for uploading a speech
by Usama Bin Laden in a chat room, which Al Jazeera had already
disseminated in the first place." In his rebuttal Ernst pointed
out that "the right of freedom of speech is not unlimited, not
even in the U.S. legal system" (Note: He exemplified this by
saying that it was illegal to shout "fire" in a fully occupied
theater. End Note.). Ernst reiterated that according to Art.
5, II of the German constitution, freedom of speech has its
limits in general laws. Ernst added that the "worst terrorist
activity, incitement of hatred and barbarian actions of
murderous thugs and the approval of such actions" certainly do
not fall under freedom of speech. Ernst also highlighted that
Rashid did not act publicly, but rather used nine code names and
made an effort to conceal his identity, which showed that he was
aware of violating laws.

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Comment
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7. (SBU) From the outset of the trial, the scope of the
indictment has been limited. Originally, the Federal
Prosecutors Office charged Rashid with support of a terrorist
organization. However, in an April letter to the Federal
Prosecutors Office, the Federal High Court (BGH) rejected that
charge, arguing that following a revision of the Criminal Code
in 2003, the sheer promotion of terrorism by expressing sympathy
for terrorism does not qualify as supporting a terrorist
organization. Therefore, the challenge for the prosecution will
be to establish that Rashid did not "merely" express sympathy
for terrorism, but promoted membership in and the support of Al
Qaeda and Al Qaeda in Iraq.


8. (SBU) In his reading of charges the prosecutor provided a
comprehensive and detailed account of Al Qaeda's ideology,
objectives, development, organizational structure, and methods.
His elaborations concluded with the statement that the accused
played a concrete and important role in carrying out Al Qaeda's
war over the Internet, by using the Internet as a propaganda and
recruitment tool in its global jihad. The description of
Rashid's Internet activities was striking in its detail.
Against the background of the contentious German debate on the
pros and cons of online searches, these proceedings will serve
as a forceful reminder to the German public of the untold and
underestimated role of the Internet as a platform for
terrorist-related activity and communication. Interestingly,
the investigation leading to the arrest and indictment of Rashid

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was the result of preventive telecommunication surveillance,
which might eventually be found unconstitutional by the Federal
Constitutional Court (BVerfG). However, according to the
Spokesperson of the Celle Higher Regional Court, Dr. Stephanie
Springer, this would not mean that the whole trial would
collapse. Evidence would be differentiated between what would
be admissible or not.


9. (SBU) The prosecution hopes that this trial will have a
deterrent effect on would-be extremists. Twenty-five trial
sessions have been scheduled through January 31, 2008. Since
much of the evidence must be translated from Arabic into German,
the prosecution expects that the trial will last significantly
longer than six months. According to the chief prosecutor, if
convicted, Rashid could be sentenced to up to five years,
although a term of no more than three years is more likely. In
a meeting with selected press, Ernst stated that because Rashid
has already served over a year in pre-trial detention and
continues to remain in prison, he may be released on remand
since continued detention might be found disproportionate to
what his actual sentencing may be if he is found guilty. END
COMMENT.


10. (U) This message has been coordinated with Embassy Berlin.
JOHNSON