A Swiss judge is recommending that smuggling charges be brought against three alleged members of the world's most notorious nuclear trafficking ring, reviving a politically sensitive case that U.S. officials have repeatedly tried to squelch because it might expose sensitive CIA secrets, NBC News has learned.
After more than two years of investigation, Swiss magistrate Andreas Mueller said he plans to announce Thursday that he is recommending that his country's attorney general criminally charge Swiss engineer Friedrich Tinner and his two sons, Marco and Urs, as middlemen in the nuclear smuggling network of rogue Pakistani scientist A.Q. Khan.
Mueller told NBC News that he had found that the Tinners, who ran a Swiss high-tech company, built and sold centrifuge parts for a nuclear enrichment facility being planned by the Libyan regime of Col. Muammar Gaddafi.
"This concerns members of the biggest nuclear proliferation network ever," said Mueller, who has called a news conference in Bern to announce his findings. "This prosecution will be a signal to other countries that proliferation doesn't pay."
Swiss lawyers representing Friedrich and Marco Tinner did not respond to requests for comment this week. The Swiss attorney general, Erwin Beyeler, who under the Swiss system of justice must now decide whether to accept Mueller's recommendation, also did not respond to an email request for comment.
Book depicts extensive smuggling network
The action comes as questions about the reach and damage done by the Khan network continue to bedevil U.S. intelligence and international non-proliferation officials. A book to be published next month, "Fallout: The True Story of the CIA's Secret War on Nuclear Trafficking," by investigative journalists Catherine Collins and Douglas Frantz, concludes that technology and secrets distributed by the Khan network were greater than was previously known, including centrifuge and components for North Korea's ongoing nuclear program.
For decades, Khan — a Pakistani metallurgist — ran a vast international black-market smuggling network that supplied critical materials and, in some cases, nuclear bomb designs for the atomic programs of Pakistan, Iran, Libya and North Korea. The CIA, working with Britain's MI6, finally shut the network down in late 2003, and Khan, widely known as the "father" of Pakistan's nuclear program, was placed under house arrest by the government of former Pakistani President Pervez Musharraf.
But even though Khan confessed to his role on national television, he has never been prosecuted and remains an essentially free man, widely celebrated as a national hero for helping his country become a nuclear power.
Mueller's move now threatens to reopen sensitive issues relating to the Khan network that the U.S. government, particularly the CIA, have long attempted to keep secret.
Although the Tinners allegedly served for years as suppliers to Khan, they became CIA informants by 2003, were paid millions of dollars in cash and are credited by U.S. officials with helping to dismantle the network — touted by agency officials as one of its major success stories of the modern era.
But Swiss officials later opened a criminal inquiry into the Tinners' actions for their years of alleged smuggling on Swiss soil. Senior Bush administration officials became so alarmed about the prospects of a criminal prosecution that they successfully pressured the Swiss government to destroy massive amounts of computer files and other documents relating to the case, according to "Fallout," which relies in part on material assembled by a Swiss parliamentary commission report.
The files — which included highly sensitive nuclear bomb designs — had been copied from the personal computers at the Swiss apartment of Marco Tinner by a CIA "intrusion team" in June 2003. But in what may have been a critical mistake, the original files were left in place and later seized by Swiss officials, according to "Fallout."
Only later, after the copied files were examined at CIA headquarters in Langley, Va., did CIA officials conclude that the material needed to be destroyed and the Swiss criminal case against the Tinners derailed.
"The CIA and senior officials of the Bush administration went to great lengths over a four-year period to kill the case against the Tinners," Frantz said Wednesday. "They wanted to protect the role that the Tinners had played in spying on the A.Q. Khan network."
(Frantz is now senior investigator for the Senate Foreign Relations Committee, but he emphasized that the book he wrote with Collins, his wife, is unrelated to his work for the Congress.)
Frantz said he and Collins also found that the agency had other motives for wanting to have the material seized from the Tinners' destroyed. The agency was concerned that a full-blown inquiry into the Tinners could lead to the criminal prosecution for spying of six CIA officers who recruited the Tinners and secretly entered Marco Tinner's apartment, he said.
More significantly, "the CIA was determined to stop the world from finding out the full extent of the nuclear secrets released by the A.Q. Khan network, much of which occurred after the CIA penetrated the Khan network and knew what he was doing," Frantz said.
Ultimately, the U.S. pressure — which included entreaties by Secretary of State Condoleezza Rice and Attorney General Alberto Gonzales — succeeded, and Swiss officials incinerated the Tinner computer files.
"The extent of the evidence destroyed by the Swiss in early 2008 at the insistence of the U.S. government was staggering and included blueprints for nuclear warheads straight from the Pakistani arsenal, as well as decades worth of financial transactions identifying still-unknown elements of the Khan network," Frantz said.
CIA said to fear exposure of secrets
A CIA spokeswoman declined to comment on any aspect of the Tinner case or any of the assertions in Collins' and Frantz's book. But a former senior U.S. intelligence official, who asked not to be identified, confirmed to NBC News that agency officials were extremely nervous about what would be exposed if the Tinners were brought to trial and the files were made public. It was widely expected that the Tinners would cite their activities as CIA informants in their defense, the former official said.
If the case were brought to trial, "who knew what would come out?" the former official said. "This was a matter of the protection of sources and methods. It was the people they were dealing with, the ways they were communications, all kinds of things."
Although the passage of time has likely lessened the concerns somewhat, "my sense is this would still be a problem," the former official said.
Despite the destruction, Mueller told NBC News that he has worked hard over the past two years to reassemble the case against the Tinners and dismissed suggestions that criminal prosecutions would result in embarrassment for the agency. Their alleged smuggling of centrifuge parts for the ultimately abandoned Libyan nuclear program took place before they become agency informants, he said.
Nevertheless, he added, criminal charges against the Swiss citizens are needed to send a message to the international community that those engaged in black-market nuclear smuggling will be held accountable. (The Tinners could face up to 10 years in prison if convicted if trafficking in "war material.")
"For a state that believes in the rule of law, it's better for these things to be treated by the courts rather than the secret services, which try to keep them quiet," he said.