Al Qaeda Plot in Europe? Intelligence as Evidence in the Düsseldorf Terror Cell Trial

On 26 July 2012 the trial against four terror suspects of the so-called Düsseldorf terror cell began. Amongst the charges they are accused of membership of al Qaeda. Even though there is considerable evidence that suggests they were planning a terror attack, it remains to be seen whether membership of al Qaeda (or another terrorist organisation) will be upheld in court. A key question in relation to this terror trial is whether or not the information collected by foreign - intelligence and security agencies and shared with the German law enforcement agencies could be used as evidence that one or more of the suspects are indeed members of al Qaeda?

After months of surveillance by the security and intelligence services three suspects, Abdeladim El-K. (Moroccan nationality), Jamil S. (German - and Moroccan nationality) and Amid C. (German - and Iranian nationality) were arrested on 29 April 2011 in Düsseldorf and Bochum. They were found in possession of chemicals useful in the production of explosives. Halil S. (German nationality) was arrested later in December of the same year. When dismantling the Düsseldorf group the German Federal Office of Criminal Investigation (BKA) under the supervision of the Federal Prosecutors’ Office cooperated with the CIA and the Moroccan intelligences services. They had received credible intelligence information about a Düsseldorf terror plot which was allegedly authorised by al Qaeda.

Nonetheless, from a criminal justice perspective, the evidence that a high-ranking al Qaeda member, (probably Atiyah Abd al-Rahman who was killed in a CIA drone attack last year ) had instructed the Moroccan key suspect remains questionable. This presumed leader of the Düsseldorf terror cell, Abdeladim El-K, is believed to have visited an al Qaeda training camp on the Afghanistan-Pakistan border region in early 2010. This information is partly based on information provided by an informant and another German-Afghan jihadist, Ahmed Sidiqi. This man, who has trained with al Qaeda, was captured by US forces in 2010 and convicted by a German court of membership of a terrorist organisation , told interrogators about the plot and of al Qaeda’s authorisation. The informant’s and Ahmed Sidiqi’s information was highly valuable intelligence, but whether it is legitimate evidence in a terrorist trial remains to be seen.

Even though intelligence information may have helped to dismantle the terror plot, it is a challenge to use it for criminal prosecution. The right to a fair trial is the cornerstone of the rule of law and democratic society, and therefore it is crucial that suspects such as those of the Düsseldorf terror cell have equal access to the evidence against them. Intelligence information as part of the evidence in such trials raises human rights concerns in relation to its admissibility. As reflected by this particular case information-sharing between security and intelligence services and law enforcement agencies is of strategic importance. Nonetheless, there is a difference between collecting and sharing intelligence to prevent and counter terrorism and gathering evidence for criminal investigations. Intelligence services prefer to keep their sources secret, whereas the fair trial principle demands that during a trial, the public prosecutor and defence counsel enjoy equal access to the evidence. Furthermore, the standards of reliability of information to protect national security differ from the standards that are necessary for evidence in a criminal court.

Recent developments in other European terror trials such as the Dutch "Hofstad Group" cases suggest that judges set high standards for evidence based on intelligence as well as membership of a terror organisation. The so-called Hofstad Group case consisted of 13 suspects who were arrested shortly after the murder of the journalist Theo van Gogh on 2 November 2004 by Mohammed B. In the following trials the Supreme Court determined that some suspects had to be partially retried. In one of the cases a defendant is going to be retried in Autumn 2012 because judges of the Appeals Court failed to sufficiently explain why the defence council was not able to receive more transcripts of a partially released intelligence-wiretap, or question intelligence officers in court. Furthermore, as it is not clear whether some Hofstad Group suspects were members of a terrorist group with the intent to commit terrorist crimes, two are to be retried for the second time.

The trials of the Düsseldorf group as well as the Dutch Hofstad Group suggest that an anticipatory criminal approach to fighting terrorism is developing across Europe. Counter-terrorism legislation and policies are increasingly focused on the early detection and prevention of potential terror threats and security risks, while restrictions on individual rights and liberties such as the right to a fair trial are considered inevitable and legitimate to achieve that aim. However, is intelligence information reliable enough to deal in a criminal context with the risks that terrorism poses? The right to a fair trial as protected by article 6 of the European Convention of Human Rights sets high standards for judges to accept intelligence information as evidence in criminal trials.

Whether the German judges feel that there is sufficient evidence to prove that one or more of the Düsseldorf terror cell suspects were indeed members of al Qaeda is yet to be determined. This conclusion, however, does not suggest that there may not be enough evidence to convict these particular suspects for other (terrorism-related) crimes, nor that intelligence and security agencies should not cooperate. In countering terrorism there is inherent tension between national security – and criminal justice. While intelligence and security agencies play a crucial role in discovering terror plots, criminal trials send a message that the threat of terrorism is addressed within the context of the rule of law, the cornerstone of democratic society.