UNCLAS SECTION 01 OF 02 HAMBURG 000002

SIPDIS

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

E.O. 12958: N/A
TAGS: PTER KJUS KHLS PREL ASEC GM
SUBJECT: GERMAN AL QAEDA ACCOMPLICE FOUND GUILTY

REF: A. A) DUSSELDORF 0002


B. B) 07 HAMBURG 0052

C. C) 07 DUSSELDORF 0037

D. D) 07 BERLIN 1398

HAMBURG 00000002 001.2 OF 002


SENSITIVE BUT UNCLASSIFIED - NOT FOR INTERNET DISTRIBUTION


1. (SBU) SUMMARY: On January 24, the Schleswig- Holstein
Higher Regional Court (OLG) convicted Redouane El-Habhab of
founding a foreign terrorist organization and assisting a
terrorist organization and sentenced him to a five year and nine
month prison term. The verdict is not yet legally binding and
can be appealed before the Federal Supreme Court (BGH) within a
week following the verdict. The case was unique in that for the
first time the Internet was considered both a tool and crime
site in a German terrorist trial. Intricately gathered evidence
from Internet phone protocols played a critical role in the
trial, which prompted the chief judge to speak out strongly in
support of online searches - an issue that continues to be
contentiously debated nationally. A reference in the reading of
the verdict indicated that fugitive Hamburg 9/11 cell member
Said Bahaji is still attempting to contact his wife in Hamburg.
END SUMMARY.

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Guilt Proven to the Full Extent
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2. (U) On the evening of January 24, the First Criminal Senate
of the Schleswig OLG in Schleswig-Holstein sentenced
Moroccan-born German national El-Habhab to a five year and nine
month prison term, thus ending a trial that lasted exactly six
months. Chief Judge Mathias Hohmann stated that El-Habhab was
clearly guilty of forming a foreign terrorist organization and
"doubtlessly and directly benefited Al Qaeda in Iraq." He added
that El-Habhab's actions had clear indications of terrorist
activity (e.g. secured evidence on El-Habhab's hard disks such
as details on military operations, weapons, and guerilla
warfare). Similar to the information portal Wikipedia, Hohmann
added that Al Qaeda succeeded in creating a site that could
arguably be named "Wikiqaeda," which Muslim extremist users both
uti

lize and expand. Moreover, he pointed out that El-Habhab had
contact with the highest Al Qaeda levels through his
relationship with Abu Taisir. The judge pointed out that
El-Habhab swore an oath of faith to Taisir. He also stated that
Taisir called El-Habhab to instruct him to get in contact with
the wife of fugitive Hamburg 9/11 cell member Said Bahaji and
bring her to Pakistan. To further underscore El-Habhab's
contacts with the senior Al Qaeda leadership, the judge said
that El-Habhab met Khaled (ph.), the Syrian proconsul of Al
Qaeda in Iraq.


3. (U) The judge stated that El-Habhab took Osama bin Laden's
call on jihadists to "focus their attention on Sudan" to heart
by organizationally and tactically recruiting jihadists for the
fight against "infidels" and "crusaders" (e.g. by the use of a
questionnaire on jihadists' abilities and qualifications). The
judge added that the core of the Sudanese terrorist organization
was created through El-Habhab's efforts, and that the
organization would likely have grown further.

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"Second Life" is Not Applicable: Real Crimes Committed in Real
World
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4. (U) At the outset of the reading of the verdict, the judge
alluded to the importance of the Internet in the trial. He
noted that it was the first time in a German terrorist trial
that the Internet was both a tool and site of crime. He noted
that this fact made the circumstance surrounding the case less
clear cut than in the case of a bank robbery where there are
"witnesses, victims and a police car chasing the culprits."
However, he underscored: "The actions took place at a PC and
not in `Second Life.' The nicknames (of jihad sympathizers)
were no avatars such as in `Second Life' and the actions of the
accused manifested themselves in the real world (i.e. money
transfers through Western Union, logistics and recruitment for
Sudanese terrorist organization). The offer of 5,000 USD was in
real dollars, not `Linden Dollars.' He concluded that true
offenses and crimes were committed via the Internet."

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Online Searches Would Assist in Uncovering Terrorist Activity
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HAMBURG 00000002 002.2 OF 002


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5. (U) Hohmann pointed out that classic written messages were
first introduced as evidence, with records from Internet
telephone conversations added later. He explained this delay by
noting that "it takes time to develop complex new software able
to decrypt signals." The judge underscored that it was not the
court's business to engage in policy-making. However, referring
to the current debate on online searches, he pointed out that
"we know that part of the call for online searches is to tap
Internet phone calls before data is encrypted in order to avoid
the difficulty of decryption;" and expressed appreciation for
this practice.

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The Guilty Charges in Detail: Bonus for Remorse
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6. (U) The court found El-Habhab guilty on one count of
founding a foreign terrorist organization (in Sudan) and six
counts of terrorist assistance actions. Following are the
sentences for the individual charges:

-- 1 year and 6 months for the transfer of 1,000 Euros for the
purpose of trafficking three Egyptians to Iraq;
-- 2 years and 6 months for attempted bomb-building training in
Algeria;
-- A total of 8 years and 9 months for smuggling four
individuals;
-- 2 years and 9 months for the foundation of a foreign
terrorist organization.

However, in accordance with paragraph 46 of the German Criminal
Code, the overall sentence was reduced to five years and nine
months. In determining the sentence, the judge favorably
considered El-Habhab's willingness to testify, his one and a
half year imprisonment on remand, his abdication of restitution
of cash confiscated during the search of his Internet cafi, and
his critical self-assessment of his activities and reference to
them as "adventurous mischief."


7. (SBU) COMMENT: Five years and nine months is a moderate
sentence by American standards for a conviction of Al Qaeda
terrorist activities. Under the German Penal Code the court
could have imposed a maximum sentence of up to ten years.
However, even the Federal Prosecutor only pleaded for six and a
half years. With 18 months imprisonment on remand deducted and
one third of the overall sentence forfeited for good conduct,
Habhab can walk free in two years and four months. The wider
importance of the trial lies in the judge's vivid illustration
of how online searches could contribute to uncovering terrorist
activity and simplifying the lines of reasoning in terrorist
trials. In view of the continued controversy concerning online
searches in Germany, this trial underscored and supported
arguments in favor of this practice in fighting terrorism. END
COMMENT.


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