Many countries in the world, particularly in the Middle East and Africa, do not bother answering such questions. Such regimes, using emergency laws passed decades ago and never repealed, simply incarcerate whoever is somehow, even peripherally, involved with a terrorist act or a terrorist organization. Most of those who are arrested never see a judge, and the trials that do take place are often a farce. A defendant's basic rights are commonly violated and punishments are harsh. Western countries, by contrast, generally respect constitutional guarantees such as the right to a lawyer and to a fair trial. The West rightly prides itself on these rights and freedoms, which should be cherished by men and women throughout the world.
Nevertheless, the West, and Europe in particular, finds itself in a difficult position. The rights granted by most European legal systems are currently exploited by terrorists who are seeking to destroy the very societies whose freedoms make their operations possible. The response to this new threat has to be firm, but what if the needed methods undercut centuries of liberalism and respect for civil rights? Europe is struggling to find the right balance between fighting for its survival and maintaining its essential identity.
In most European countries, laws prevent intelligence agents from sharing information with prosecutors or law enforcement agencies unless they follow a lengthy and complicated procedure. With few exceptions, the monitoring of individuals has to be authorized by a judge who has been presented with convincing evidence of the suspect's guilt. These safeguards, the product of a democratic legal tradition, are meant to forestall the creation of a police state. They epitomize Europe's success in creating a civil society in which the government cannot unduly interfere with its citizens' lives. But, at the same time, they create an ideal shelter for the terrorists. Europe needs to adapt to the new threat that it is facing.
Jean-Louis Bruguiere, France's most famous antiterrorism magistrate, has spoken loudly and authoritatively in support of introducing harsher measures in the fight against terrorism: "Terrorism is a very new and unprecedented belligerence, a new form of war and we should be flexible in how we fight it. When you have your enemy in your own territory, whether in Europe or in North America, you can't use military forces because it would be inappropriate and contrary to the law. So you have to use new forces, new weapons."2
The enemy that has declared war on the West hides among the civilian population and does not wear a uniform. And this is what makes it so lethal. Authorities cannot do much if they just know that certain individuals are talking about jihad and about killing themselves in suicide operations. Action can be taken only when there is specific information that an attack is pending-but such information is rarely available. What was Mohammed Atta guilty of on the morning of 9/11? Had the CIA or the FBI intercepted the cryptic e-mail in which Atta announced to his accomplice Ramzi Binalshibh that September 11 was the "big day," could US authorities have arrested him? Technically, until the moment he seized control of American Airlines Flight 11 over the skies of Massachusetts, Atta had committed no crime except planning the attack. But it is quite difficult to prove that an attack is being planned, especially when the planners are skilled murderers who have been trained to cover their tracks.
Had they known the details of Mohammed Atta's life, authorities might have suspected that the future 9/11 leader was a person of interest. His training in al Qaeda camps in Afghanistan, his role as a leader of a group of radical Muslims frequenting Hamburg's most extremist mosque, and his travel patterns should have raised red flags. If, hypothetically, this information had been put together with the e-mail declaring September 11 "the day," authorities in all likelihood would have stopped Atta and his accomplices at the gates of Logan Airport in Boston before they could board their flight on the morning of September 11. A terrible crime would have been at least partially prevented, but it is nonetheless unlikely that a solid case could have been brought against Atta, who probably would have walked free out of Logan after a few hours of questioning.
The aftermath of 9/11 showed that Western legal systems are ill-prepared to deal with the new legal issues that the war on Islamic terrorism has brought to the fore. The excellent work done by European intelligence and law enforcement agencies has often been squandered by the courts, which are governed by laws that are designed to punish individuals who form associations for terrorist purposes only when an attack is carried out-and even then, they may be inadequate to the purpose. The trials in Germany of Abdelghani Mzoudi and Mounir El Motassadeq, two of the accomplices of Atta and the other hijackers in Hamburg, have revealed Europe's legal impotence against terrorism.
Mzoudi and Motassadeq, the only two men to be tried in Germany in connection with the 9/11 attacks, have been waging a complicated legal battle against German prosecutors for more than three years and are currently free men. According to prosecutors, Mzoudi's Hamburg apartment served as the meeting place of a group of Islamic radicals who, bound by their common hatred for the United States and Jews, planned an attack that would shock the world. After gathering countless times at Mzoudi's apartment, some members of the Hamburg cell went to the United States to attend flight schools and carry out the lethal 9/11 plan; others remained in Hamburg to provide logistical support. Prosecutors assert that while the men who worked from Germany may not have known every detail of the plot, they were well aware of the fatal intentions of their US-based associates. For instance, Mounir Motassadeq allegedly told a friend that they "want to do something big. The Jews will burn and we will dance on their graves."3
Mzoudi helped facilitate this murderous scheme by allowing Mohammed Atta and Marwan al Shehhi, pilots of the planes that hit the Twin Towers, to use his Hamburg apartment address.' This arrangement enabled Atta and al Shehhi to conceal their real whereabouts while they traveled to Afghanistan and applied to flight schools in the United States. Al Shehhi also used Mzoudi's address on a new passport issued to him by the United Arab Emirates after he claimed to have lost the one he had.' Terrorists wishing to conceal their visits to Afghanistan frequently claim such "losses" so that they can acquire clean passports.
Mzoudi had an integral role in managing the finances of Hamburg cell members. For example, Mzoudi sent money to al Shehhi while al Shehhi was attending flight schools in the United States. He also took care of the finances of another Hamburg cell member, Zakariya Essabar, as Essabar trained in an al Qaeda camp in Afghanistan (Mzoudi himself attended an al Qaeda training camp near Kandahar in 2000).6 Motassadeq, too, was involved in the finances of the operatives in Florida, as Marwan al Shehhi had granted him power of attorney and thus access to his bank account. That Motassadeq also was a witness to Mohammed Atta's will provides further evidence of his close relationship with the hijackers.'
Motassadeq and Mzoudi were charged in Hamburg with being accessories to the murder of more than three thousand people and being members of a terrorist organization. Motassadeq was initially found guilty and sentenced to fifteen years in prison. Mzoudi's trial was more complicated, as it began after the September 2002 arrest in Pakistan of Ramzi Binalshibh, one of the key members of the Hamburg cell. Mzoudi's lawyers demanded that they could examine Binalshibh, claiming that his testimony was essential to demonstrate Mzoudi's real role in the plot. Because the US government, which has detained Binalshibh since his arrest, refused to disclose even his location, the German judges reluctantly released Mzoudi. "Mr. Mzoudi, you are acquitted, but this is no reason to celebrate," said the presiding judge, adding that the court was not convinced he was innocent and that he had been acquitted only because the prosecution had failed to prove its case.' A month after Mzoudi's acquittal, an appeals court ordered a retrial for Motassadeq, on the grounds that the US refusal to allow Binalshibh to testify had denied him a fair trial.' In August 2005 a Hamburg court convicted Motassadeq again. Nevertheless, the Moroccan was found guilty only of belonging to a terrorist group and was acquitted on charges of accessory to murder in the 9/11 attacks. He was sentenced to just seven years, a sen
tence that he immediately appealed.
The difficulty for German prosecutors was that both Mzoudi and Motassadeq were facilitators, sending money and providing apartments to terrorists but not actually carrying out terrorist acts themselves. Indeed, the lawyers for both men have argued that their clients believed they were simply helping fellow Muslims. When asked why he wired money to al Shehhi, Motassadeq explained: "I'm a nice person, that's the way I am." Mzoudi also claims he knew members of the Hamburg cell only casually and had no knowledge of their violent intentions.
Similar frustration in the courtroom occurred following a 2003 Dutch intelligence investigation of twelve Muslim men accused of selling and smuggling large quantities of drugs, then using the profits to provide support to fellow members of the GSPC (Groupe Salafiste pour la Predication et le Combat, or Salafist Group for Preaching and Combat), an Algerian terrorist group closely linked to al Qaeda. According to the indictment, the men also provided safe haven and false documents to other extremists and recruited and indoctrinated young Muslims in the Netherlands, preparing them for jihad against the West.10 Nevertheless, in May 2003 a Rotterdam court acquitted all twelve of the charge of providing material support to an international terrorist organization. The judge ruled that most of the evidence presented against the men was inadmissible, as Dutch law requires that the police conduct their own investigation. Information gathered by intelligence agencies can be used as a basis for this investigation, but not as evidence in a trial, and in this case the evidence presented by the prosecution was not enough to win a conviction.
Yet the Dutch investigation had demonstrated that the men were potentially quite dangerous and clearly constituted a cell. Prior to their arrest, the twelve men used to congregate at Eindhoven's al Furqan mosque,I I a recognized base of radical activities. For years, the al Furqan mosque hosted seminars on Islamic law organized by the al Waqf al Islami Foundation, a well-funded Saudi organization. These courses, which invariably expressed extreme anti-Western views, were attended by hundreds of Islamic radicals from across Europe, including some of the planners of the 9/11 attacks.'
The purported leader of the cell was Kassim al Ali, a twenty-eightyear-old Iraqi Shiite married to a Dutch convert. Al Ali arrived in Holland in 1997 and immediately asked for political asylum. But after discovering that al Ali had previously made an unsuccessful asylum application in Germany using the pseudonym "Talal Ala," Dutch police arrested him for carrying a false Iraqi ID. During their subsequent search of his Arnhem apartment, police found a scuba diving license. 13 This seemingly insignificant discovery took on vital importance when investigators discovered that al Ali had once attended a diving school in Eindhoven called Safe Diving. Though Eindhoven is a relatively small town, miles from the sea, more than fifty Muslims were enrolled there. Safe Diving's owner, Bill Megens, told the Dutch newspaper Rotterdams Dagblad that most of the Muslim students wore traditional Arabic garments and had long beards.14 Several were familiar to Dutch intelligence because of their radical ties. Investigators nicknamed them the "al Qaeda Diving Team."
Possible terrorist attacks launched either under or on the surface of the water seriously concern law enforcement and intelligence authorities worldwide. In May 2002, the FBI issued a bulletin warning that "various terrorist elements have sought to develop an offensive scuba diver capa- bility."'s Manuals about scuba diving have been discovered in an al Qaeda safe house in landlocked Afghanistan, and al Qaeda has already carried out a deadly high-seas attack-against the USS Cole in 2000. In addition, in 2002 Moroccan authorities thwarted a strike on British and US ships in Gibraltar, arresting three Saudis. In the phone book of one of them, Abdullah M'Sfer Ali al Ghamdi, investigators found al Ali's number-though at his trial, al Ali denied knowing al Ghamdi.16 He also denied knowing the other Muslims attending the Safe Diving school, flippantly remarking, "It is difficult to introduce yourself underwater."" Yet Megens told reporters that al Ali appeared to be the leader of the group; he recalled that on the day the men took pictures together, everybody wanted to be in a snapshot with Al Ali.' 8
Others among the twelve defendants also have ties that merit further investigation. The Eindhoven mosque came to the public's attention in January 2002 when two young Moroccans who regularly worshiped there were killed in Kashmir while fighting the Indian Army. Intelligence gathered shows that some in the cell knew these two Moroccans intimately. One of them, Anwar al Masrati, owned a photograph of one of Moroccans and admitted having taught him Arabic and the Quran.19 Another, Zouhair Tetouani, was taped while telling a friend some unpublished details about their deaths. Tetouani's two e-mail addresses include the phrases "Preparing for Jihad" and "Dreamer of Paradise."20 Tetouani, like many of the twelve, made no attempt to hide his allegiance to the jihadist cause.
Despite the men's radical views, terrorist ties, and declared intentions to kill themselves in suicide operations, Dutch authorities could do nothing more than keep them under surveillance, as the country's laws provided no grounds for detaining them. Sadly Holland is not the exception but the rule in this regard; the legal systems throughout Europe rarely pay sufficient attention to activities that do no direct harming but are instrumental to the execution of a terrorist attack. Though supplying a terrorist with the false documents that enable him to enter the country is as crucial to his mission as providing him with explosives, few countries punish the two crimes with equal severity. Before 9/11, most European countries permitted the recruitment of individuals for a terrorist organization, as long as that organization operated outside their own borders. With laws like these, it is no wonder that Europe has become one of al Qaeda's favorite bases of operations.
Italy experimented with a potential solution to this problem in the fall of 2003. For more than three years, Italian intelligence (Divisioni Investigazioni Generali e Operazioni Speciali, or DIGOS) monitored a cell, primarily made up of Moroccans, in the northern Italian city of Turin. Tipped off by the CIA, who had found telephone numbers of some of its members in a raid of a Peshawar office used by al Qaeda operatives, DIGOS discovered that the cell was active in recruiting youths within the wide local Muslim population, who were then sent to train and fight in Afghanistan, Algeria, and Chechnya.2' Among the most notorious of these recruits were two "Italian" detainees in Guantanamo Bay, Mohamed Aouzar and Mohamed Ben Salah Sassi.22 In addition, the leader of the cell had been involved in smuggling weapons to the Algerian Armed Islamic Group (Groupes Islamiques Armes, or GIA) since the mid-1990s and was in close contact with extremists throughout Europe and North Africa.
Despite the substantial amount of evidence that was collected, no action was taken against the members of the cell for more than three years, a delay that frustrated Italian and American intelligence agents. Although the magistrates in Turin agreed that the men posed a threat and that something should be done to disrupt the cell, they could find no legal means to do so. The men had committed no crime, and there was no intelligence indicating that the cell was planning a specific attack. Prosecutors could have charged them only with providing material support to a terrorist organization-but they realized they had little chance of winning that case. Most of the evidence pertaining to the cell comes from Aouzar and Sassi, the two recruits whose confessions were made at Guantanamo Bay; and like most Western legal systems, Italy's generally does not allow testimony from a witness whom the defense is unable to cross-examine. Even if the judge should rule that the two confessions were admissible, the defense could easily claim that they were false, made under physical and psychological pressure. Italian authorities were therefore stuck: they knew that a cell was operating out of Turin, but they could do nothing about it.
The situation became even more complicated after Moroccan authorities became interested in the cell. Moroccan intelligence agents investigating the deadly Casablanca bombings of May 2003 uncovered several European links to the attacks, which brought them, among other places, to Turin. Working closely with DIGOS, they discovered that member
s of the Turin cell had prior knowledge of the operation. In fact, the men had been collecting money for the families of the suicide bombers before the attacks took place. Moroccan and Italian authorities informally explored the possibility of extraditing the men. Nevertheless, no formal request was made, since both sides knew that it would have been pointless-the Italian constitution forbids the extradition of suspects to countries where they might face the death penalty. Although the evidence on the cell was piling up, Italian authorities still could take no action.
Then came the November 12, 2003, suicide attack in Nassaryia, which killed nineteen Italian soldiers deployed in Iraq. The attack, which was carried out by Islamic fundamentalists, understandably left emotions in Italy running high; in this changed political climate, the public was ready to accept measures of unprecedented harshness. The minister of the interior, Antonio Pisanu, decided to crack down on the cell and realized that the best method was to deport the members. Using powers granted him by a rarely used law, Pisanu decreed the expulsion of the men for "security reasons."23 By simply deporting them to their home countries, he solved all the legal problems. Prosecutors could drop their fruitless search for statutes under which to charge them; and because the men were not extradited to Morocco and Algeria to face charges, no constitutional issues arose. As cunning as the legal device was in this case, deportation cannot provide a permanent answer. Valid concerns about the human rights of the deported will likely prevent governments from using it regularly. Clearly, better legislative solutions must be found.
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