Prosecuting Conspiracies Before Attacks Occur: Comparing German to American Law in the El-Kabir Case

Last week I noted that the United States seeks the extradition of Abdeladim El-Kabir, a man currently held in Germany based on allegations that he was part of an al Qaeda-related cell trained in Pakistan and now planning a bombing somewhere in Europe.  I posed the question why the Germans would be willing to extradite him rather than prosecute him themselves.  The answer may turn on the particularities of the elements of the offense with which El-Kabir was charged.  My understanding is that he is charged there with “membership in a terrorist organization,” in violation of section 129a of the German Penal Code.  That law provides, in relevant part:

(1) Whoever forms an organization, the objectives or activity of which are directed towards the commission of: 1. murder, manslaughter or genocide (Sections 211,212 or 220a); 2. crimes against personal liberty in cases under Sections 239a or 239b; or 3. crimes under Section 305a or crimes dangerous to the public in cases under Sections 306 to 306c or 307 subsections (1) to (3), 308 subsections (1) to (4), 309 subsections (1) to (5), 313, 314 or 315 subsections (1),3 or 4, 316b subsections (1) or (3), or 316c subsections (1) to (3), or whoever participates in such an organization as a member, shall be punished with imprisonment from one year to ten years. ... (3) Whoever supports an organization indicated in subsection (1) or recruits for it, shall be punished with imprisonment from six months to five years. ...

The key point is that prosecutors must show that El-Kabir either formed or supported an organization directed toward the commission of one of the listed offenses, which in this case would include murder.  Now it may seem at first blush that this would be simple enough, since the reporting is focused on the idea that these uys were planning to carry out a bombing. But there is a spectrum that runs from having the general idea of carrying out such an attack, through the preliminary steps of preparing and selecting a target, and culminating in the attempt—and the million dollar question here is where German law attaches liability on that spectrum for this purpose.  I’m no expert on German law, but my impression is that it requires at least some degree of specificity as to the particular target, as opposed to attaching liability at the point where the men simply agree to carry out a bombing against someone.  If that is correct, it is easy to see how it might make it hard to convict these men.  American conspiracy law, in contrast, would permit prosecution so long as the men had agreed to carry out an unlawful attack, even if the particulars were to be determined later.  This, in short, may explain why  the U.S. is stepping in with an extradition request.