On February 6, 2009, Pakistani nuclear scientist Abdul Qadeer Khan was released from house arrest in Pakistan. [1] Detained since 2004, Khan is considered the brains behind an extensive global network that smuggled nuclear technology and related sensitive equipment into Pakistan to support its nuclear weapon program and subsequently provided similar goods to Libya, Iran, and North Korea. (For an introduction into the Khan network and a breakdown of alleged members, see “Special Report: The A.Q. Khan Network: Crime … and Punishment?” WMD Insights, March 2006.) Coupled with a number of reverses in investigations elsewhere of alleged members of the nuclear smuggling ring, Khan’s release appeared to deal a serious setback to global nonproliferation efforts.
Court Grants Khan Freedom
Reviewing a petition by Khan to end his detention, the Islamabad High Court ruled that the charges against Khan could not be proved. [2] The court also rejected counter-arguments by prosecutors, who insisted that Khan’s house arrest was in his best interest and intended solely to ensure his safety. [3] In granting Khan’s petition for release, the court declared that Khan was now a “free citizen,” allowing Khan to move freely within Pakistan. [4] Khan also told reporters that he could travel abroad, provided he received the government’s permission in advance. [5] Upon his release, a spokesman for the Pakistani government added that Pakistan would provide security for Khan in light of his “V.I.P. status,” most likely an effort to monitor Khan’s actions and prevent further proliferation by the nuclear scientist. [6]
Even before his release from house arrest, Khan often made incendiary statements to the media. For instance, in one interview with foreign media, Khan reportedly claimed that former Pakistani President Pervez Musharraf had given his personal consent to the shipment of uranium enrichment centrifuges to North Korea. [7] (The centrifuges can enrich uranium to the level needed for nuclear weapons.) Khan later claimed that he had been misquoted, but he was nevertheless prohibited from speaking publicly about the nuclear ring. [8] The recent court decision permits Khan once again to voice his views concerning his detention and alleged crimes. [9] In the days after his release, Khan claimed that his new status was personally authorized by Pakistani President Asif Ali Zardari and Prime Minister Syed Yousaf Raza Gillani. [10]
Reactions to Khan’s Release and the Re-Introduction of Restrictions
Within Pakistan, Khan’s release was greeted with widespread enthusiasm. Many Pakistani newspapers praised the court’s decision, proclaiming that, “There is no doubt that Dr. Khan has an exalted place in the hearts of 160 million Pakistanis.” [11] An unattributed report from Azadi Online proclaimed that, “The political circles in Batkhaila [a city in North West Frontier Province] have demanded that Dr. Khan be appointed the president of the country.” [12]
In India, however, Khan’s release incited a wave of criticism. India’s Minister of State for External Affairs, Anand Sharma, declared that Khan’s release was an act of deception: “Pakistan as a state has allowed individuals and organizations to act in a manner which is detrimental to regional and world peace. If these were non-state actors, why deny their act? … Pakistan must stop deflections and pointing to red herrings.” [13] In an editorial to Outlook India, a former Indian cabinet official warned that Khan could provide help to “anti-U.S. jihadi groups, including Al Qaeda, in acquiring a military nuclear or a dirty bomb capability.” [14]
Possibly in response to such criticism and likely pressure from the United States and European governments, a few days after Khan’s release, Khan’s house arrest was reinstated. Pakistani government officials said that the Islamabad High Court’s decision would be appealed to Pakistan’s Supreme Court; until the appeal is concluded, Khan was once again to be restricted from leaving his home. [15] In response to the re-introduction of restrictions, a number of Pakistani politicians have declared their opposition to the appeal, arguing that “the restrictions [are] a violation of the court’s verdict.” [16] It is not clear when the appeal to the Supreme Court will be heard, or to what degree Khan’s movements will be restricted until the appeal process has been completed. However, in late March 2009, Khan was permitted to travel to Karachi under “strict security arrangements” to console family members following the death of his sister-in-law and niece, suggesting that Khan will still retain some freedom of movement within Pakistan while he awaits his Supreme Court appeal. [17]
Recent Failures in Western Europe
Khan’s temporary, and potentially permanent, release from house arrest – which would lift the only penalty he has suffered for his smuggling activities – is in keeping with the results of investigations of other members of his operation elsewhere. In sum, prosecutions of the smuggling ring’s members have rarely succeeded in imposing significant penalties. In the past year, a number of investigations in Western Europe into alleged members of the Khan network have either been abandoned or have suffered significant setbacks. Even in the case of Germany’s successful prosecution of Gotthard Lerch, the court of jurisdiction sentenced him only to the time he had served in pretrial detention and released him from custody. (See German Case Highlights Difficulties of Prosecuting Nuclear Smugglers, in this issue of WMD Insights).
The Swiss investigation into the activities of Urs Tinner and his brother Marco has been the most publicized setback. The two men had been arrested in 2004 (along with their father, Freidrich, who was released from custody in 2006). In May 2008, Swiss government officials revealed that they had destroyed key documents seized from the Tinners, citing national security concerns. [18] Swiss officials claimed that the documents had been destroyed under the supervision of the International Atomic Energy Agency (IAEA), which informed Swiss officials that the documents included schematics for centrifuge components and – according to Swiss reports citing Olli Heinonen, the IAEA’s Deputy Director General and Head of the Department of Safeguards – designs for nuclear weapons. [19] Following the destruction of evidence, speculation has been widespread as to why the Swiss government would intentionally undermine the Tinners investigation. Aside from the vague official “national security” explanation, a number of media sources have speculated that the Tinners had been cooperating with U.S. intelligence agencies and that the documents were therefore destroyed to hide this connection and protect the Tinners from prosecution. [20] In a recent television interview, Urs Tinner appeared to admit his family’s connections with U.S. intelligence agencies and claimed that he had an integral role in exposing the Khan network. [21] A.Q. Khan, however, has publicly denied that the Tinners were cooperating with intelligence agencies, insisting instead that the Swiss documents were destroyed to hide the significant roles played by his European partners in an effort to place disproportional blame on Khan. [22] With much of the evidence against him destroyed, Urs Tinner was released from pre-trial detention free on bail of SFr 10,000 ($9,300) in December 2008. [23] In January 2009, Marco Tinner was also released, on SFr 100,000 ($93,000) bail. [24] In light of the destruction of documents potentially central to their case, it is not clear whether Swiss authorities will be able to continue their prosecution of the two brothers.
The investigation into British businessman Peter Griffin has likewise collapsed. According to reports, the four-year investigation into Griffin – alleged to have worked with Khan for more than two decades – was abandoned by British prosecutors in January 2008. [25] Griffin is alleged to have provided dual-use equipment to the smuggling ring, including key components destined for a Libyan uranium enrichment centrifuge facility. Griffin has denied any knowledge of the intended use of his products, insisting that he had been misled by Khan. [26]
B.S.A. Tahir: Khan’s Middleman Set Free
On June 6, 2008, Buhary Seyed Abu Tahir — an admitted linchpin to Khan’s operations across multiple continents — was released from prison by Malaysian authorities. [27] Detained in 2004 under Malaysia’s Internal Security Act, Tahir spent four years in a high-security detention center without ever being charged with a crime. [28] During his detention, Tahir reportedly provided Malaysian authorities important insight into the Khan network, including key information about other members of the network that reached investigators in the United States and Europe, as well as the IAEA. [29] Following his arrest, Tahir was identified by then-President George W. Bush as Khan’s “chief financial officer and money launderer,” the network’s middleman who procured sensitive machinery from manufacturers in Europe for clients in the Middle East and Asia. [30]
The reasons behind Tahir’s release are unclear. According to Malaysian Foreign Minister Datuk Seri Syed Hamid Albar, Tahir was released because, “He is not a threat to anyone.” [31] Others claim that Malaysian authorities detained Tahir only as a result of U.S. pressure, and that Tahir was therefore released when U.S. attention to the Khan network diminished. [32] Regardless of the motivations behind his release, U.S. officials in Malaysia have issued assurances that Tahir will continue to be monitored by Malaysian authorities to ensure that he will not again be involved in proliferation-related activities. [33]
South African Prosecutions More
Successful
While other countries have had great difficulty prosecuting suspected members of the Khan network, South Africa has achieved considerable success in bringing alleged members of the nuclear smuggling ring to justice. In September 2007, Gerhard Wisser, founder of the firm Krisch Engineering, was convicted of attempting to export gas centrifuge equipment to Libya and transferring other sensitive technology to Pakistan. Wisser received an 18-year prison sentence, which the court then suspended for five years (in effect, five years of probation), together with three years of house arrest and a fine of $3 million, to deprive Wisser of the proceeds from his crimes. (For greater detail on the prosecution of Gerhard Wisser, see “South Africa, Germany Announce Significant Developments in Prosecution of Suspected Khan Network Participants,” WMD Insights, December 2007 / January 2008.)
Also in 2007, initial proceedings began in the Pretoria High Court in the trial of Daniel Geiges, a Swiss national and colleague of Wisser, who served as the project manager at Krisch Engineering. The Court decreed that the trial, which had been delayed many months after Geiges was diagnosed with terminal cancer, would take place behind closed doors and with a strict media blackout. [34] Newspapers in South Africa challenged the decree, however, and successfully fought to keep the trial public. [35] A public trial presented significant challenges for prosecutors, given the sensitive nature of the evidence and the alleged connections to other proliferators in several other countries. [36]
On February 5, 2008, Geiges entered into a plea bargain just days after court officials announced that the trial would be held in public. Geiges pled guilty to manufacturing and exporting sensitive equipment to Libya in 2001 and the United Arab Emirates (en route to Pakistan) in 1995. [37]
Geiges further agreed to cooperate with South African investigators, and in return he received a 13-year suspended sentence. [38] The plea effectively precluded the opportunity for outsiders to gain greater insight into the South African dimension of the Khan network. Although the plea agreements named only Libya and Pakistan, the South African newspaper Mail & Guardian claimed that the list of Krisch Engineering’s partners also included Iran, which was allegedly excluded from public documents due to political concerns. [39]
Conclusion
If one takes the September 2003 seizure of the Khan network’s Libya-bound enrichment plant cargo as the point at which authorities began to roll up his smuggling ring, it is instructive to realize that less than six years later virtually all of its key participants are free men, and its leader may soon be as well. To be sure, many have been penalized, if not with post-conviction imprisonment, at least through public exposure, multi-year pre-trial detention, and, in one salient case, substantial fines. Nonetheless considering the magnitude of the crimes at issue, in particular enabling Iran to develop the capability to build nuclear weapons and attempting to do the same for Libya, the question arises whether such penalties are sufficient.
On the other hand, the challenges of prosecuting nuclear technology smugglers have now been well identified and prosecutors have found means to overcome them in a number of cases. Thus, even if the penalties imposed may appear inadequate, the tenacity of authorities around the globe in pursuing the Khan network and the publicity they have generated may serve as a deterrent to at least some would-be nuclear traffickers.
Finally, the deterrent effect of classic criminal prosecutions may be strengthened by complementary measures the United States and the UN Security Council are employing to penalize such traffickers. On January 12, 2009, for example, the Department of State announced that the United States had imposed sanctions on 13 individuals and three private companies for their involvement in the A.Q. Khan nuclear proliferation network, including Khan, Geiges, Griffin, Lerch, Tahir, and Wisser. The sanctions include a freeze on the assets of the designated individuals and entities and their isolation from the U.S. banking system and related organizations, as well as bans on exporting WMD-related goods to them from the United States. [40] The Security Council has also acted to freeze the assets of designated individuals and entities who are believed to be materially assisting Iran’s nuclear and missile programs. [41]
Adam P. Williams – Jamestown Foundation
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 SOURCES AND NOTES
[1] “Pakistan Court Declares A.Q. Khan a ‘Free Man,’” AFP, February 6, 2009, http://www.google.com/hostednews/afp/article/ALeqM5iFdevEYTiSkP_ssnojhusgEvSMYA. [View Article]
[2] “Pakistan: High Court Allows Dr. Qadeer Khan Freedom of Movement, Expression,” Geo News TV, February 6, 2009, OSC document SAP20090206081001. The Islamabad High Court is the appellate court for the Islamabad federal district.
[3] Ibid.
[4] See source in [1].
[5] “IHC Declares Dr. Qadeer Free Citizen,” News Online, February 7, 2009, http://www.thenews.com.pk/top_story_detail.asp?Id=20141. [View Article]
[6] “Pakistan to Ensure Nuclear Scientist A.Q. Khan’s Security,” APP, February 6, 2009, OSC document SAP20090207950008.
[7] A.Q. Khan: N. Korea Received Centrifuges from Pakistan with Musharraf’s Consent,” Associated Press, July 4, 2008, http://www.usatoday.com/news/world/2008-07-04-pakistan-nuclear_N.htm. [View Article]
[8] “Pakistan Editorial Asks Govt, Dr. Khan to be Careful About Country’s Nuclear Plan,” The Post Online, February 8, 2009, OSC document SAP20090208101017.
[9] See source in [1].
[10] See source in [5].
[11] “Pakistani Editorial Urges Rulers Not To Accept Foreign Pressure on Nuclear Issue,” Wahdat, February 7, 2009, OSC document SAP20090209048002.
[12] “Pakistan: People From All Sections Welcome Dr. Abdul Qadeer Khan’s Release,” Azadi Online, February 9, 2009, OSC document SAP20090210105004.
[13] “India Says Nuclear Scientist Khan’s Acquittal Example of ‘Pakistan’s Deception,’” Tribune Online, February 7, 2009, OSC document SAP20090207384007.
[14] “Indian Article: A.Q. Khan’s Release Shows Pakistani Govt ‘Deceptive’, ‘Insincere,’” Outlook India, February 7, 2009, OSC document SAP20090209494008.
[15] “Suspended Freedoms,” News Online, February 11, 2009, http://thenews.jang.com.pk/daily_detail.asp?id=161925. [View Article]
[16] “Pakistan: Politicians Flay Restrictions on Dr. Khan, Say Violation of Court Order,” Jang, February 11, 2009, OSC document SAP20090211105019.
[17] “Pakistan: Dr A.Q. Khan Visits Karachi To Condole Death of Sister-in-Law, Niece,” Nawa-e Waqt, March 26, 2009, OSC document SAP20090327100007.
[18] “Swiss President Couchepin Justifies Shredding of Documents of Nuclear Smugglers,” NZZ Online, May 23, 2008, OSC document EUP20080528085002.
[19] Ibid; “Swiss TV Reviews Tinner ‘Spy’ Affair, Carries First Interview with Urs Tinner,” SF1 Television, January 22, 2009, OSC document EUP20090128085020.
[20] Juergen Dahlkamp, John Goetz, and Holger Stark, “Intelligence Agencies Undermine Nuclear Smuggling Trial,” Spiegel Online, http://www.spiegel.de/international/world/0,1518,560131,00.html. [View Article]
[21] See source in [19].
[22] “LEAD: Pakistani Nuclear Scientist Says Evidence of his Innocence Lost,” Kyodo World Service, May 28, 2008, [http://www.breitbart.com/article.php?id=D90UMT782&show_article=1]; “Pakistan: Nuclear Scientist Says Swiss Family Not CIA Agents, Charges Baseless,” Nawa-e Waqt, August 29, 2008, OSC document SAP20080829105010.
[23] “Swiss Engineer in Nuclear Secrets Probe Freed on Bail: Report,” AFP, December 28, 2008, http://www.spacewar.com/reports/Swiss_engineer_in_nuclear_secrets_probe_freed_on_bail_report_999.html.
[View Article]
[24]“ Swiss Engineer in Global Nuclear Secrets Probe Freed on Bail,” AFP, January 22, 2009, http://www.spacewar.com/reports/Swiss_engineer_in_global_nuclear_secrets_probe_freed_on_bail_999.html.
[View Article]
[25] Jonathan Calvert, Chris Gourlay, and Joe Lauria, “Inquiry into ‘Nuclear Mr Fix-it’ Dropped,” Sunday Times, January 13, 2008, http://www.timesonline.co.uk/tol/news/uk/article3177660.ece; [View Article] William J. Broad, David E. Sanger and Raymond Bonner, “A Tale of Nuclear Proliferation: How Pakistani Built His Network,” New York Times, February 12, 2004, http://www.nytimes.com/2004/02/12/world/a-tale-of-nuclear-proliferation-how-pakistani-built-his-network.html?pagewanted=all. [View Article]
[26] See source in [25].
[27] “Sri Lankan ISA Detainee Freed,” Star Online, June 23, 2008, http://thestar.com.my/news/story.asp?file=/2008/6/23/nation/21628962&sec=nation. [View Article]
[28] Ibid.
[29] “Malaysia’s Neutralized Nuclear Threat,” Asia Sentinel, June 30, 2008, http://www.asiasentinel.com/index.php?option=com_content&task=view&id=1292&Itemid=178. [View Article]
[30] George W. Bush, “President Announces New Measures to Counter WMD,” February 11, 2004, available at http://www.nti.org/e_research/official_docs/pres/whitehouse20040211_wmd.pdf. [View Article]
[31] “Malaysia: Home Minister Says Former ISA Detainee Tahir No Longer Poses Threat,” Star Online, June 24, 2008, OSC document SEP20080624130019.
[32] See source in [29].
[33] Ibid.
[34] “State Bid for Secret Nuke Trial,” Mail & Guardian Online, March 31, 2007.
[35] “From Vanderbijl to Tripoli with Love,” City Press, February 2, 2008, http://www.news24.com/City_Press/News/0,,186-187_2263543,00.html. [View Article]
[36] “Nuclear Traffic Web Stays Secret,” Mail & Guardian, February 8, 2008, http://www.mg.co.za/article/2008-02-08-nuclear-traffic-web-stays-secret. [View Article]
[37] “RSA: Swiss National Gets Suspended Sentence for Role in Nuclear Smuggling Ring,” SABCNews.com, February 5, 2008, OSC document AFP20080205509019.
[38] Noel Stott, “Second Person Convicted of Contravening South Africa’s Non-Proliferation of Weapons of Mass Destruction Act,” Institute for Security Studies, February 12, 2008, http://www.iss.org.za/index.php?link_id=19&slink_id=5497&link_type=12&slink_type=12&tmpl_id=3. [View Article]
[39] See source in [36].
[40] U.S. Department of State, Office of the Spokesman, “Designation of A.Q. Khan and Associates for Nuclear Proliferation Activities,” January 12, 2009, http://www.state.gov/t/isn/115913.htm. [View Article] The Tinners, however, were not included on the list of sanctioned persons, suggesting that there may well have been an element of truth behind rumors that they had been protected from prosecution in Switzerland at the request of the United States because of assistance they provided to U.S. investigators of the Khan network.
[41] See UN Security Council Resolutions 1737, 1847, and 1803
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