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03:23:26 PM
Written By : Richard SchwartzCategory : News And Comment
Location : Nashua, NH

I very much hope that this is just bad reporting and a mis-translation, but then again I fear that it probably isn't, and that things probably have gotten just as bad or worse here in the US as they may be elsewhere.

In this specific instance, I'm referring to Germany, based on the following quotation from an article in the New York Times titled German Court Convicts Moroccan for 9/11 Links:

the German prosecutor, Walter Hemberger, said, "We hope that this verdict will be a signal to all people who live here in Germany and have the same jihadist thinking as Motassadeq, and will show them that this is criminal in our country."

That someone could be convicted of a crime for "jihadist thinking" is something that, until these past few years, I never could have imagined anywhere other than in Orwell's 1984. That it is happening doesn't completely surpise me. I know what is going on in the world, I know what is going on at Guantanamo, That a prosecutor in Germany -- or any other Western democracy for that matter -- would actually blatantly say something so Orwellian is still disturbing.

I don't know if German prosecutors are elected. I suppose that remarks like that from a politician wouldn't surprise me as much.

When I was young, I remember hearing radio reports that would mention "the Outlawed Irish Republican Army". There was no such thing as just the plain old "Irish Republican Army". It was always prefaced by "Outlawed", and (little geek that I was) I remember reading through the Bill of Rights and thinking to myself "In the US, there's no such thing as an outlawed organization. There can't be." Of course, the RICO laws put a serious dent in that ideal some time ago, but (at least in theory) RICO is to be applied in conjunction with prosecution for specific criminal offenses, so it's not a total abandoment of the principle.

The Times also wrote that the defendant "was found guilty only of belonging to Al Qaeda and associating with the ringleaders of the Sept. 11 attacks during the time before 2001 when they lived in this north German port city". The guy may indeed be a real terrorist... in fact, I have little doubt that he is... but to be convicted merely of belonging to an organization and knowing bad people. without any proof of overt acts that are directly connected to proven criminal activities is wrong in any country.

It makes me sad.

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Comments :v

1. Stephan H. Wissel08/21/2005 12:18:04 AM

Hi Richard,

it's not that bad as the article suggest. It has either been spinned or things got lost in translation. Let me elaborate:

Being a prosecutor is a public service career, that follows two law school degrees and is a prerequisite for becoming a judge. Judges are appointed based on merits and not elected. Judges are independent from government or an electorate. The court procedures also are designed to avoid that a specific judge or prosecutor is appointed to a case at will (they use domains and round-robins).

Our criminal law requires that you have to show a criminal action and a criminal intend. Both must be there for an conviction. If one or the other is lacking you can't be convicted. E.g. if you do a criminal action (e.g. killing somebody in a road accident) but you clearly didn't want to do it (she wasn't your stepmon was she?), then it's not a case of murder but manslaughter (which leaves option for a fine or probation in contrary to murder that brings you behind bars for sure).
The discussion about criminal intend was a very fierce one and my late professor at law school Dr. Spendel was very critical about it. However, the criminal intend is evaluated AFTER the evidence of an criminal action has been proven.
So to get a full picture of what happend in the case of Motassadeq you would check the charges first, check the evidence and then check the intention.
This is of course the reverse process of how people act: first I have an intention to do something and act afterwards. Unless the court procedure has been massivly broken you can translate the remark made into: "This will detere people of even thinking of a criminal action and stop them from doing something illgal".
Hope that clarifies it

I'm curious about your remark about outlawed organizations in the US. The German penal code specifcly knows "Forming a criminal association (and being a member of one)" which targets at the likes of Mafia or The Red Army Fraction (German's terrorist in the 70/80th). How would a organisation like the Mafia being prosecuted in the US (other than on tax charges )

2. Richard Schwartz08/22/2005 02:57:27 PM

I'm not really qualified to go into legal details on this, but my understanding is that the organization is not prosecuted. The individuals are, and the RICO law (Racketeering Influenced Criminal Organization Act, passed sometime in the late 70's or maybe the early 80's) must always be an "add-on" to an existing criminal case. In other words, they have to be able to charge all the individuals with some sort of overt criminal acts in addition to simply belonging to the organization. As far as I know, even a conspiracy charge requires knowing overt acts in furtherance of another crime, so they wouldn't be able to go after Mafia-type organziations just with RICO and conspiracy charges. There's a civil portion of RICO in addition to the criminal portion, though, and I think the distinction between the organization and the individual is much weaker there, which allows the government to seize property gained by individuals as a result of even an unknowing association with a criminal organization even when those individuals aren't prosecuted for any criminal acts.

But then again, I'm really not qualified to be making statements about this... at least not much more qualified than any other regular viewer of Law & Order on television is

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