In an interesting counterpoint to Roger’s post on the conviction of Abu Hamza, Reuters reports that Germany’s Federal Constitutional Court has ordered the release of Mounir el Motassadeq, the first person to be convicted in connection with the attacks on 9/11, pending resolution of defense and prosecution appeals. The court agreed with el Motassadeq’s lawyers that the Hamburg judges had been wrong to order him to return to custody with the appeals still pending, because doing so “infringed on his basic right to liberty.”
El Motassadeq was convicted in 2003 of more than 3,000 counts of accessory to murder for helping pay tuition and other bills for three 9/11 hijackers, including Mohamed Atta, while they plotted the attacks. He was also convicted of membership in a terrorist organization. After an appellate court threw out the convictions, a Hamburg state court convicted el Motassadeq only on the membership charge; it found him not guilty of the 3,000 accessory counts. The court sentenced el Motassadeq to seven years in prison.
El Motassadeq’s release – and the court’s ruling does not affect the validity of his conviction – illustrates an important difference between German and U.S. criminal law regarding “mere” membership in a terrorist organization. Such membership is criminal under Section 129a of the German Penal Code. Under U.S. law, by contrast, the defendant must have, at a minimum, conspired with or aided and abetted a terrorist organization, harbored a terrorist, or provided a terrorist organization with some sort of material support. Membership alone is not enough.
(It's worth noting, by the way, that it's not clear the U.S. couldn't
criminalize mere membership in a terrorist organization like al-Qaida. The Supreme Court case usually cited to that effect, Scales v. United States
, only dealt with a group -- the communist party -- that had both legal and illegal aims. For such a hybrid group, the Court held in Scales, proof of membership is not enough to sustain a conviction; the government must also prove that the defendant specifically intended to further the group's illegal aims. Notably, the Court did not hold that the government cannot criminalize membership in a group whose ends are solely illegal, as al-Qaida's almost certainly are -- though the same could not be said of many of the groups the U.S. government has designated as "foreign terrorist organizations." For such groups, proof of membership alone might suffice to prove that the defendant specifically intended to further the group's illegal aims.)