If a German court can see the unfairness of denying the defendant the opportunity to invterview those with favorable information, as did the trial judge in the Moussaoui case, why didn't our Supreme Court?

The other issue of course is whether the information from a prisoner who has been secretly detained abroad - and likely tortured - is even credible. From the Die Zeit article (English version):

In February 2003 a different Chamber of the Superior Court agreed with the prosecution's arguments. What Motassadeq had done, the court judged, was not normal friendly cooperation among Arab students, but rather a criminal conspiracy. The sentence at the time was 15 years in the penitentiary. However, the following spring the Federal Court reversed the conviction and referred the case back to Hamburg for a new trial. The charges that Motassadeq was an accomplice to the deed, according to federal judges, "may be, in and of themselves, sustainable" - but the State Superior Court had not heard the possibly decisive evidence that could have exonerated him.

What the federal court was referring to was testimony of presumed al-Qaeda chief planner, Ramsi Binalshib. The Yemeni Binalshib has been in U.S. custody since September 2002. For reasons of "national security" the U.S. Government refuses to allow German judicial officials to question the man. What the Hamburg Court got in lieu thereof was a short fax with a summary of interrogation transcripts, which, in the words of the defense, was "evidence that is unique in the history of justice."

Where and, above all, how these summaries came about is unclear. The suspicion that Binalshib could have been tortured in Guantanamo or elsewhere seems reasonable. Appropriate inquiries by the Court of the German Ministries of Justice and of the Interior as well as of the Office of the Federal Chancellor yielded the response that the Federal Government could say nothing on the subject. Passing on information on U.S. interrogation conditions would "lead to a disruption of international diplomatic relations and the relationships among intelligence services."

Although the Binalshib-fax exonerated the accused, Motassadeq, the fundamental issue of whether or not testimony that may have been acquired under torture is admissible in German courts remains unanswered. After all, in the next, similar trial it could be a matter of testimony that incriminates the accused. Nevertheless, the Hamburg Superior Court decided that such evidence may be used. After all, the testimony was not proven to have been acquired under torture. In its decision, the Hamburg Superior Court put astonishingly little weight on principles of the rule of law. With Guantánamo in mind, the Court determined that excluding evidence can only be considered in cases of "especially serious cases of violations of human rights" and "simple imprisonment and segregation from outside contacts as well as the denial of a regular judicial process … for the period of less than three years, which can be assumed in this case … are not yet included as such a violation."