The Tension Between Politics and Justice: German Courts and the 9/11 Suspect Trials.

While the United States has declared war on terrorism and restricted the role of criminal courts by detaining some individuals indefinitely without filing criminal charges, Germany has chosen to fight terrorism within its existing criminal justice framework. Despite the fact that the two countries have adopted different strategies to combat terrorism, the German government has repeatedly reiterated its strong commitment to cooperating with the United States. While Germany strongly questioned the efficacy and legitimacy of the U.S. invasion of Iraq, it responded to 9/11 by enacting its own anti-terrorism legislation, strengthening ties between German and American law enforcement agencies, and by deploying troops to Afghanistan. However, these cooperative efforts mask an underlying tension in the transatlantic relationship. The source of that tension is the Bush Administration's decision to employ tactics that violate international treaty obligations as well as domestic law. This decision, which led to the indefinite imprisonment of foreign nationals at Guantanamo Bay and the loosening of the prohibitions against the torture of prisoners, reflects a fundamental disagreement between the United States and its European allies about the rules of the game that govern the fight against terrorism. While there has been widespread debate about the wisdom of U.S. policy, opponents have not been able to identify significant concrete costs of it, beyond a decline in respect for America abroad. This paper provides tangible evidence of the costs of the U.S. terrorism policy. Critically, it shows how the actions of the American government hamstrung Germany's prosecution of two individuals suspected of providing logistical support to the 9/11 terrorists. This paper argues that the U.S. government's refusal to grant the German courts access to key witnesses in both cases undermined the ability of German prosecutors to convict these individuals. While one cannot draw a definitive conclusion about the counter-productiveness of U.S. policy from the outcome of only two cases, these cases illustrate how the American government's decision to operate at the boundaries of the law may have unanticipated consequences. These consequences possess the potential to challenge the future effectiveness of international cooperation. To set the stage for that claim, this paper first briefly reviews the sequence of key events that transpired during the prosecution of these cases. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]