The sheer mass was staggering. Sitting inside a large room at the federal police headquarters in Bern was the accumulation of a lifetime of nuclear trafficking by the Tinners. The room was protected by an electronic lock on a metal door; several burly policemen stood guard outside. Inside, stacked along one wall, were 360 thick files, each bulging with thousands of pages of financial records, blueprints for centrifuges, and all manner of other technology necessary to enrich uranium to produce an atomic bomb. A large table along one wall was covered by the small, rectangular hard drives that had been removed from ninety computers. Alongside them were three laptop computers and more than a dozen flash drives, each of which held gigabytes of information. Elsewhere in the hall were bins containing more than six thousand CDs and DVDs, all of which had been seized from the various Tinner businesses and homes in eastern Switzerland. Pieces of centrifuges, from the six-foot cylinders to flanges, were in packing crates. In the center of the room stood several industrial-strength paper shredders and a couple of power drills with large bits capable of penetrating metal. In total, there was 1.9 tons of paper and 1.3 terabytes of digital information. Everything was waiting to be shredded, drilled, hammered, and incinerated into oblivion.
On February 25, 2008, eleven senior officials gathered in the office of Peter Lehmann, which was just up the hill from the police headquarters. They were there to carry out the final orders of the Federal Council. The records would not be turned over to the United States. They would not be preserved for possible prosecution of the Tinners. Only some of the records stood a chance of being spared a few more weeks, long enough for the IAEA to sort through them for additional clues about the Khan network.
Some of those present that morning were pleased to see what they thought was the end of the line for an investigation that had meant nothing but trouble from the start. Others worried that they were obstructing justice and participating in a cover-up that would damage Swiss democracy and derail international efforts to use the law as part of the battle against nuclear proliferation.
The Swiss were represented by the senior officials who had been involved in the Tinner investigation over the past four years. They were led by Michael Leupold, the deputy justice minister. Only months earlier, Leupold had prepared a legal brief arguing that the Federal Council lacked the authority to destroy the records. But once the decision was made to destroy them, Blocher had put Leupold in charge of overseeing the destruction protocol. Kurt Senn, the senior police official who had led the Swiss investigation and cracked the book code, was there. From the start he had been outraged at the pressure applied by the U.S. government and the actions of the CIA officers who he was convinced had violated Swiss law and Swiss territory. Accompanying him was Jean-Luc Vez, the director of the federal police. Trevor Edwards was there, along with another observer from the IAEA. The Americans had sent a man named Tom. Official records listed him as a counselor at the U.S. mission. Everyone in the room knew that he was the senior CIA officer in the country, the station chief for the agency that had pushed the hardest for this day. Joining Tom was Jon Kreykes, an American nuclear weapons expert from the national laboratory in Oak Ridge.
Edwards had arrived in Bern a week before the February 25 meeting. He had spent four days going over the records. In keeping with the deal struck back in December, he identified the material that the IAEA wanted to retain, singling out twenty-five folders and marking each with a red dot. The Swiss agreed not destroy those folders until the end of May, to give the IAEA time to analyze the contents and take notes.
The actual destruction was a monumental task, which spanned two days. At times it nearly seemed like a comedy. Police in plain clothes were feeding the papers into the industrial shredder as fast as possible. The shredding increased the volume of the paper about threefold, and as the process continued, the paper began to fill the room at police headquarters. Boxes were brought in and packed with the shredded documents, which were then taken under guard to a loading dock on the ground floor of the building, where they were loaded into three unmarked vans. For security the vans were driven in a convoy to a commercial incinerator, where the shredded material was tossed into the fire.
The shredded material produced by hundreds of thousands of pages of paper records filled so many boxes that the convoy required more than a dozen trips. The police were not in uniform, but the operators of the incineration plant had been notified to give them special treatment and not ask questions. So, each time the convoy arrived, the vans were motioned to the front of the line. Bern’s regular trash haulers were mystified by the sight. The Swiss banking giant UBS was enmeshed in a growing scandal with the U.S. Internal Revenue Service over hidden bank accounts at the time, and one of the trash haulers was overheard telling another, “They must be bankers.”
The process was equally thorough when it came to the hard drives and computer disks. Each one was drilled individually, then put in a crushing machine and smashed. The flash drives, which were much smaller, were broken in half and tossed into the crusher. The pieces of equipment were reduced to tiny pieces of twisted metal in the largest of the crushing machines.
Two days later, on February 27, everything except the folders with the red dots had been consigned to the dustbins and incinerators. The group returned to the attorney general’s office. There was an air of satisfaction among most of the people in the room. Leupold praised the cooperation and stressed the need to maintain the strictest security about what had just transpired, telling those around the table that they should only share the information with their immediate supervisor. Tom said that he would inform his colleagues orally only, but he wanted to send a letter to the Swiss Ministry of Justice praising its handling of the case.
The celebratory mood was too much for Senn, who had become convinced that the destruction constituted political interference in his investigation. Senn reflected the position of a faction within the Swiss government that deeply resented the interference of the U.S. government.
“I am speaking for myself and not for my colleagues at the table,” he said, gesturing to the other senior police officials seated alongside him. “This is a very sad day for me today. I thought I lived in a democracy. Yet in a real democracy, the political decisions are kept away from the police investigations. This Switzerland is a banana republic now.”
Senn went on for about five minutes, castigating those who had succumbed to American pressure and damaged the chances of prosecuting the Tinners. After he had had his say, the Swiss inspector turned to the IAEA representative and said, “I’m sure that Mr. Edwards from the agency agrees.”
Edwards hesitated. The IAEA respects protocols and consensus above all else. But he was angry, too, both at the loss of material that he believed would help fight future proliferation networks and at the smugness of the other participants. “I am upset and I am sad,” he said finally. “It appears that because they changed sides for the last four or five years and worked for the CIA, we forgot what the Tinners did before, what they did for the last three decades.”
DESPITE THE SECRECY, WORD HAD leaked to the press that something was afoot even before the material was destroyed. On February 7, the largest-selling Swiss newspaper, Blick, published an article hinting that the Federal Council had decided to destroy documents in the Tinner case. By then there had been numerous press reports about the family’s involvement in the Khan network. There had also been a handful of indications that Urs Tinner had worked for the CIA and that the Americans might be trying to protect him by pressuring the Swiss government to destroy the evidence. But the extent of the Tinners’ involvement with the CIA and the massive amount of evidence seized from them remained unknown outside a handful of government officials.
Still, the newspaper article attracted the attention of Senator Claude Janiak, the head of parliament’s oversight commission. The day after the article was published, Janiak contacted the Justice Ministry and asked if it was accurate. In December, Blocher had been replaced as justice minister by Eveline Widmer-Schlumpf, a more moderate politician.
Widmer-Schlumpf had not been involved in the decision to destroy the documents, but she told Janiak that the council had tentatively decided last November to get rid of most of the material. Her understanding was that the council had acted on the recommendation of the IAEA.
Janiak, a lawyer and member of the liberal Social Democratic Party, suspected that the council had overstepped its constitutional authority and interfered with the independence of the judiciary and police. After consulting with other lawyers and officials at the IAEA, Janiak came to a different understanding of the advice that the IAEA had provided to the Federal Council. Instead of recommending destruction of the records, he believed the international agency had suggested that the Swiss keep the documents secure until they were no longer needed for criminal investigations. Destruction was seen as a last resort. Janiak believed that the Federal Council was wrongly trying to shift the blame from itself to the IAEA. He was too late to stop the destruction, but in early March, Janiak opened a formal parliamentary investigation into the episode. And his investigation put pressure on the government to disclose its actions, forcing the secret out in the open.
On May 23, 2008, Pascal Couchepin, the interior minister serving his rotation as the Swiss president, stepped to a podium in Bern to announce that the government had ordered the destruction of records in the Tinner case. By then, even the twenty-five “red-dot” folders had been destroyed. “The information contained in these papers presented a considerable risk to the security of Switzerland and the international community as a whole,” he said. “There were detailed construction plans for nuclear weapons, for gas ultra-centrifuges to enrich weapons-grade uranium as well as for guided missile delivery systems.”
Couchepin emphasized that the action had been taken under the supervision of the IAEA and that it was necessary to fulfill Switzerland’s obligations under the Nuclear Non-Proliferation Treaty. Couchepin also acknowledged that the Federal Council had blocked a request by the attorney general to investigate whether Urs Tinner had broken Swiss law by working for a foreign intelligence agency. At that time, only Urs had surfaced in the press as a possible CIA spy. The Swiss president made no mention of the spying by Urs’s father and brother, and he did not say a word about the pressure applied by the U.S. government or its involvement in the destruction of the documents. In another bit of subterfuge, he downplayed the quantity of material involved, suggesting that about thirty thousand records were destroyed. As the reporters called out questions, Couchepin walked off the stage without answering.
As politicians have learned over the decades, stonewalling rarely solves a problem. Couchepin’s limited statement, and his refusal to answer questions, inflamed the controversy, which the Swiss press quickly dubbed “Operation Shredder.” The mention of a foreign intelligence agency seemed to confirm suspicions that the CIA’s cloak-and-dagger tactics had ended up interfering in a sensitive Swiss domestic matter. “There are more questions about this affair than there are answers,” Ken Egli, an editor at the International Relations and Security Network at the Swiss Federal Institute of Technology, told a reporter from Time magazine.
The public disclosure in Switzerland put the IAEA in an uncomfortable spot. The agency’s spokeswoman, after consulting with Heinonen, told reporters in Vienna that she would not comment on any possible IAEA involvement in the episode. Agency officials had no desire to get in the middle of a Swiss political spat. Nor did they want to cross the Americans by explaining that the IAEA’s first proposal to the Swiss government had been for them to keep the records for any criminal trials, not destroy the material. In fact, some senior IAEA officials believed the U.S. government had unwisely elevated the issue by using high-ranking officials like Alberto Gonzales and Condoleezza Rice to lobby the Swiss government. They also believed that the Swiss president’s announcement that crucial nuclear documents had been destroyed probably had the effect of causing everyone in the market for a nuclear weapon to start scrambling for their own copies.
In the end, there was a split among the handful of senior people who knew what had happened. Heinonen is a pragmatist, and he was satisfied that the agency had seen as much material as its mandate required. He believes the IAEA is responsible for understanding proliferation patterns and stopping the diversion of nuclear material to weapons programs, not prosecuting individuals. Others were deeply disappointed that evidence that could have contributed to prosecutions of major figures in the Khan network and to the discovery of other participants was now gone forever. People in both camps, however, agreed that the manner in which both the Americans and the Swiss had handled the material contributed to the danger of nuclear proliferation in a world where electronic information is spread so easily.
A. Q. KHAN HAD BEEN largely absent from the international scene since he was placed under house arrest in Islamabad in early 2004. But the destruction of the evidence offered him a blank slate on which to rewrite history. He quickly claimed that the material would have proven his innocence by showing that the information and equipment he had confessed to supplying to Iran, North Korea, and Libya was easily available on world markets.
A few days after the Swiss president’s announcement, a family friend smuggled out Khan’s written response to questions from Japan’s Kyodo News. “The documents revealed that all the information which I am accused of proliferating was available with the suppliers,” he wrote. “It proved that the Western suppliers from Switzerland, Germany, and South Africa all had complete details on nuclear weapons. They provided this technology to all who were willing to pay.”
Khan’s assertion was false on its face; much of the material destroyed by the Swiss had originated with Khan himself. But his argument served a larger purpose. A quiet campaign was under way in Pakistan to rehabilitate the disgraced scientist and eventually restore his freedom.
THE DESTRUCTION OF THE EVIDENCE by the Swiss did not attract much attention in the United States. In the midst of two wars, the beginnings of an economic recession, and a presidential campaign, the newspapers and airwaves were filled with other news. On August 25, however, David E. Sanger and William J. Broad, reporters for The New York Times who had been writing incisively about the Khan network for years, produced an article exploring what they described as “the compromises that governments make in the name of national security.” The piece disclosed that the U.S. government had urged the Swiss government to destroy the Tinner files, but unidentified sources told the reporters that the goal was less to thwart terrorists than to conceal evidence of the CIA’s relationship with the Swiss family. The article said that the CIA had paid the Tinners as much as $10 million in exchange for a flow of secret information that helped reveal aspects of Iran’s nuclear program, end Libya’s bomb program, and bring down the Khan network.
At the CIA, there was a strong sense that they had won a victory in terms of keeping the Tinners out of court and therefore protecting its secrets. The destruction of the Tinner material had no impact on the agency; its team had copied everything of relevance in 2003. “We didn’t want any of this stuff aired in public, though once the arrest [of Urs] happened, it was inevitable that some of it would come out,” said a former senior CIA official who was involved in aspects of the investigation for several years. “The agency never wants anything to get into the public or political sphere. Agency to agency, we can handle that and any fallout. But when the politicians get involved, things get sticky.”
The former official had closely monitored the machinations behind the scenes in Switzerland and he was convinced that the Federal Council was on board with the destruction from the start. “When they talk about being upset about destroying the documents, that is not what they are really upset about,” said the former official, who spent a considerable part of his career working in Europe. “The thing they are most upset about is, I think, that this could somehow embarrass them or bring down a government.”
There is ample reason to criticize the lax manner in which Switzerland and other European countries have treated nuclear proliferation in recent years. In cases from Pakistan and Iraq to Iran and Libya, many countries have turned a blind eye to the sales of dual-use technology. Among those that have shared technology with dictators is the United States itself. The administrations of Ronald Reagan and George H. W. Bush allowed the transfer of dual-use technology to Saddam Hussein in the 1980s when Iraq was fighting a bloody war with Iran. Sharing nuclear-related technology for profit or policy is a dangerous game, which assumes that no country or terrorist organization will ever actually detonate a nuclear device. Unfortunately, it is a game that only needs to be lost once to change the world.
But the position of those in the U.S. government who argued for destroying the documents to protect intelligence operations and avoid embarrassing the CIA was at least equally shortsighted. The loss of the evidence meant it was likely the Tinners would never be prosecuted. Instead the time that Urs and Marco spent in jail could be seen as a cost of doing business. Not only that, but other network participants would see that illegal actions do not result in serious consequences. Fights between countries like Germany and South Africa over access to evidence and witnesses damaged some cases. Political considerations derailed tough action in Pakistan, Malaysia, and Dubai. Even those who were convicted faced little or no time in custody.
In September 2007, Gerhard Wisser pleaded guilty in South Africa to attempting to export centrifuge equipment to Libya and transferring other sensitive equipment to Pakistan; he was given an eighteen-year prison sentence, which the court reduced to only three years of house arrest. A few months later, his accomplice, Daniel Geiges, pleaded guilty to manufacturing and exporting equipment to Libya and Pakistan; he was given a thirteen-year suspended sentence. Johan Meyer, whose company built the feed system for Libya, was granted complete immunity in exchange for helping prosecutors in the Wisser and Geiges cases. B. S. A. Tahir was released from custody in Malaysia in June 2008 without ever being formally charged. In October 2008, after three earlier failures, the Germans finally convicted Gotthard Lerch for shipping uranium enrichment equipment to Libya between 1999 and 2003. He was sentenced to time he had served in pretrial detention, which meant he was released immediately.
On December 22, a Swiss court released Urs Tinner from custody on bail of $9,300. After four and a half years in prisons in Germany and Switzerland without being charged, he emerged angry and bitter. After his release, he said he had spent at least two years in isolation. When Tinner asked why he was not allowed out of his cell to exercise along with other prisoners, his jailers told him that he was the only man on the women’s side of the prison and it was against regulations to allow him outside at the same time as the women. They claimed that the men’s section was full. “That was their way of keeping me alone,” he said later.
Once Tinner was freed, his lawyer, Roman Boegli, asserted that the destruction of the documents meant his client could never get a fair trial. Boegli said he would never be able to show that Tinner had worked for the CIA and sabotaged equipment destined for Libya. The lawyer also complained about the length of time Tinner had spent in jail without being charged, calling it a record for detention without being charged in Switzerland. In fact, a month before Tinner’s release, Boegli had filed a case with the European Court of Human Rights arguing that the detention and destruction of evidence violated his client’s rights. Tinner’s incarceration, he said, was “worthy of Guantanamo.”
Marco remained in prison after his brother was freed. Prosecutors argued that Marco still had access to nuclear secrets stored on computers around the world. A month later, however, he was freed after posting bail of ninety-three thousand dollars and was allowed to move back to Thailand.
PETER LEHMANN’S ESPIONAGE CASE AGAINST the Tinners and CIA agents was stopped by order of the Federal Council, and his efforts to build a case involving export violations had disappeared with the evidence. But he remained determined that some kind of justice would prevail. In January 2008, two months after the Federal Council ordered the destruction of the documents, Lehmann had tried to save part of his case by handing over the portion that dealt with export violations to an investigative magistrate in Bern, Andreas Mueller. Unlike Lehmann, Mueller did not report to the Justice Ministry. His independence provided an opportunity to preserve at least the part of the case that involved possible violations of Swiss export laws.
Mueller’s first step was to review the files that the attorney general’s office had sent over to him. Each file was recorded on a master index, something akin to the docket sheet in an American case file. The index listed seventy files, each of which should have contained a massive amount of written material that could be used to build the case. But the files were empty; every piece of paper that should have been in them was gone. “I could tell that tons of material was gone,” Mueller said later.
He did not find out what had happened to the evidence until May 2008, several months after he took the case, when Couchepin announced that the material had been destroyed. Since then, Mueller had been trying to collect evidence from other sources to reconstruct the case as much as possible. A determined and inventive lawyer, he set about trying to recover portions of the records from Germany and other countries where the Khan network had been active. It was slow going, and in the spring of 2009 his inquiry was about to take a bizarre turn.
A FEW DAYS BEFORE URS Tinner was released from prison in December 2008, a new cache of evidence was discovered gathering dust in the archives of the attorney general’s office. Hundreds of pages of blueprints, shipping invoices, and weapons designs were arranged neatly in thirty-eight large folders, each of which was dedicated to a different aspect of the original investigation of the Tinner family. A thirty-ninth folder contained a summary of the evidence and an outline of the plans to prosecute them for espionage and export violations. Somehow the damning compilation had escaped the destruction ordered by the Federal Council.
There are conflicting stories about how the folders were discovered. One version was that a custodian cleaning the document storage area stumbled across the folders. In a second scenario, a secretary had set aside the material and forgotten about it until some unknown event or conversation jogged her memory. Neither is convincing. And both beg the central question: Was the material really forgotten, or was it hidden in hopes of keeping the investigation alive? The only certainty was that the resurrected material put the Swiss government in another embarrassing bind.
Peter Lehmann immediately alerted the Justice Ministry. Trying to explain how the files had eluded destruction, Lehmann said they were copies of material prepared by the federal police in May 2006 as part of their investigation. He said his office had asked for the copies as a courtesy, but because of storage constraints the files had been transferred to the archives. When the order was issued in November 2007 to destroy all of the evidence, Lehmann said no one remembered the archived files.
Lehmann had a real problem. Inadvertently or not, he now possessed material that the government had ordered destroyed months earlier. Michael Leupold, the deputy justice minister who had overseen the destruction, was livid. He and others in the ministry debated firing Lehmann. The public sacking of a senior prosecutor would attract more attention and controversy, however, so Lehmann kept his job while the powers above him tried to figure out how to handle the newest bombshell in a case that refused to go away.
The timing of the discovery could hardly have been worse. Senator Janiak’s parliamentary oversight commission had ended its investigation and was scheduled to release its report at the end of January. The report was expected to be highly critical of the decision by the Federal Council to destroy the material. Christoph Blocher had pushed for the destruction and would probably take most of the blame, but he had already been voted out of office. It was up to his successor, Eveline Widmer-Schlumpf, to find an acceptable path for mitigating the potential new scandal. After several days of quiet discussions with some of her colleagues, they decided to withhold a formal report of the discovery from the full Federal Council until after the release of the parliamentary report. Delaying the formal acknowledgment allowed the government to avoid informing the Janiak commission until after its report was issued. This meant that the report would not include the explosive new information.
On January 22, the commission released its findings. As expected by the government, the commission faulted the Federal Council for destroying the evidence in the Tinner case and compromising the ongoing criminal investigation. The commission determined that the Federal Council had overstepped its constitutional authority by invoking articles of the constitution reserved for emergencies in time of war. The report rejected the council’s rationale that it was acting to protect Swiss security in destroying the material. It also declared that the council’s assertion that it had relied on recommendations from the IAEA was unconvincing.
At a press conference, Janiak said cryptically that the Swiss government had “acted under pressure.” The report laid out a precise timeline showing that the council had acted in response to extraordinary pressure from senior officials of the Bush administration. The report listed contacts between Swiss officials and various American intelligence officers and senior Bush administration figures dating back to 2004. The parliamentary investigation concluded that American pressure, not security concerns, had driven the premature destruction of the records. “The commission could not prevent itself from thinking that, relative to the Tinner case, it was the pressure exerted by the United States more than the risk of proliferation that preoccupied the department in charge of the files and the Federal Council,” said the report. “The destruction of all the means of proof in the Tinner file was a method that permitted them to rapidly yield to pressure exerted by Washington.”
The findings were an indictment of both the Swiss and American governments, but the mainstream press in both countries ignored the details about of U.S. pressure. The Swiss press treated the release more like a political document than an investigative report. Articles focused on the behavior of Federal Council, describing the destruction of the records as an overreaction because the evidence was not a threat to Swiss national security. Some commentators argued that the council had not only compromised the criminal inquiry, but had also sacrificed Switzerland’s cherished neutrality by bowing to American pressure.
In many ways, however, the report’s release was overshadowed by a documentary that aired the same night on Swiss national television. The hour-long film, which was produced by documentary producer Hansjuerg Zumstein, explored the Swiss connections to the Khan network. The big news came when Urs Tinner appeared on camera for the first time. He described sabotaging parts bound for Libya and alerting the Americans to the cargo that was on the BBC China in the summer of 2003. “I had identified the last delivery of the BBC China, the biggest cargo,” he said. “I said to myself, ‘We must prevent this material from reaching its destination.’” Tinner went on to describe how he had made a copy of the shipping records by pressing the wrong button on the fax machine, which copy was eventually passed on to his CIA control officer. Tinner had offered only a tiny piece of the story, but it grabbed headlines around the world for a day. Then he retreated into silence.
THE SWISS GOVERNMENT REMAINED UNAPOLOGETIC despite the findings of the Janiak commission. The problem of what do with the remaining records, however, had not gone away. On February 11, Widmer-Schlumpf finally sent the official notification to the Federal Council that thirty-nine files had been discovered. The justice minister proposed that the files be preserved and made available to prosecutors in the event of a criminal case, but only after material considered “proliferation sensitive” was removed and destroyed. The council accepted the recommendation, and the IAEA was asked to send someone back to Bern to cull through the folders once again.
The decision to retain some of the documents contradicted the actions of the council back in November 2007, when the material was deemed so dangerous that all of it had to be destroyed. The council offered no reasoning for its inconsistency. But there was a significant difference in how this decision was reached: This time the Americans were not involved because they knew nothing of the discovery back in December. The council, which had been stung by the criticism that they had bowed to American pressure the first time, was determined to keep it that way. The American government would not be told of the existence of the files. As part of the effort to keep it secret, the federal police ordered that the Swiss intelligence official suspected of leaking to the CIA in the past not be told anything about what was under way.
On March 18, Trevor Edwards returned to the federal police headquarters in Bern to start the process of evaluating the few remaining documents. Vez, the head of the police, explained to Edwards that the new files were in the same room where Edwards had examined some of the previous files. He asked that Edwards identify documents that he believed the Swiss were prohibited from maintaining by the Nuclear Non-Proliferation Treaty (NPT) so they could be destroyed. The remaining records, Vez said, would be available to prosecutors and defense attorneys in the event of a criminal case against the Tinners for export violations.
Edwards was concerned. He had not seen the thirty-nine files, but he feared that eliminating “NPT-related” documents would not go far enough. Since his first exposure to the Tinner files in late 2005, Edwards had learned enough about the architecture of a nuclear weapon to be deeply worried about the contents of the files. So he proposed also destroying an equally dangerous class of records that might not be covered by the nuclear treaty. He described those records as “proliferation sensitive.” The documents that he proposed sparing would be those that dealt with the export case that the Swiss magistrate was trying to develop and those that had value to the IAEA because they exposed the inner workings of the Khan network. Lehmann objected to the expanded definition, arguing that records relevant to the possible prosecution of the Tinners would be lost a second time.
Vez agreed to postpone the final decision on what would be destroyed. For now, Edwards would mark documents that he declared NPT-related with a green tab; those that were proliferation sensitive would get a red tab; and those that were both would be marked with a tab of each color. With the structure in place, Edwards began reading the files.
Edwards spent the better part of that day and the next going through the files, which contained about a thousand pages. The federal police had compiled a good sampling of the most damaging material seized from the Tinners. A few files held weapons drawings marked “PAB.” Another held a single page of a report on how to manufacture the hemispheres of a nuclear device. Edwards decided that these records were covered by the treaty, and he affixed green tabs to the files. He determined that the records had been compiled by the Swiss police during the interrogation of witnesses.
Other files contained information from the police searches of Marco’s business and apartment. Among them were designs for manufacturing centrifuges, and their possession was not strictly prohibited by the NPT. Centrifuges, after all, have civilian uses, too. Still, Edwards felt they should be destroyed, so he affixed red tabs identifying them as proliferation sensitive.
Only three files were judged so sensitive that they got both red and green tags. Those folders contained specifications for enriching uranium to the 90 percent level, which is optimal for nuclear weapons, and designs for a six-thousand-centrifuge production plant to turn out the highly enriched uranium. The files Edwards proposed sparing held shipping records, invoices, and supplier lists memorializing years worth of involvement in nuclear trafficking by the Tinners. They also contained transcripts of interviews with potential witnesses.
The outlier among the thirty-nine folders was No. 10. The file contained some detailed drawings of the P-2 centrifuge. It also held extensive written records of interrogations by the Swiss police in which the Tinners recounted the meetings that they had held with the IAEA in Vienna and Innsbruck, all under the supervision of the Central Intelligence Agency. The Tinners had been expansive in describing their contacts with the CIA and the IAEA because they had believed the Swiss government would back away from prosecuting them. As a result, the folder held evidence that proved what everyone was running away from as fast as possible—that the CIA and the Tinners had broken Swiss espionage laws. The originals of these reports were what Tom, the CIA station chief, had convinced the Swiss to destroy back in February 2008. This time, Edwards tagged the P-2 drawings red for proliferation sensitive, but he saw no proliferation danger in the interrogation transcripts, so he left them untagged. It would prove the most troublesome of all down the road.
When the Swiss returned to the storage room on March 20, they found the files arranged in four separate stacks. No single sheet of paper or drawing constituted a proliferation threat. Taken together, however, the material represented some of the most dangerous design material available outside the weapons laboratories of the world’s nine nuclear powers. Michael Leupold, the deputy from the Justice Ministry, joined the small group. As he looked through the stacks, Leupold asked Edwards if the IAEA would consider taking possession of all of the material. Such a decision was above Edwards’s pay grade. He said he would ask his superiors as soon as he returned to Vienna. In the meantime, all of the documents would remain locked in the room.
After Edwards’s departure, the Swiss officials faced a decision on whether to disclose the existence of the thirty-nine folders. They were worried that word would leak, and they decided it would be better to release the news on their own terms. On March 31, Couchepin and Widmer-Schlumpf met with Senator Janiak to tell him about the re-discovered documents. The justice minister explained that steps had been taken to secure the records while the IAEA determined whether it could take possession of them. Janiak asked for a pledge that the material would not be destroyed before a decision was made on whether to prosecute the Tinners. He also recommended that the Justice Ministry tell the public that about the discovery of the records before it leaked.
ANDREAS MUELLER SAT IN HIS office in the modern, mid-rise building that also houses the attorney general’s headquarters on the morning of April 1. Mueller is a slim man in his forties, about five foot ten, with a close-cropped beard and a soft voice. He has a low-key manner and a reputation for being particularly meticulous, even for a Swiss lawyer. Despite his diligence, after a year of investigating the Tinners, he had little to show for his effort and he was mildly frustrated.
Leafing through his internal mail that morning, he came across a press release freshly issued by the Justice Ministry. He read the heading, and then looked more closely. It was April Fool’s Day and he could not believe what he saw. Only after reading the full document did Mueller realize it was no joke. The Justice Ministry press release said the authorities had discovered thirty-nine folders containing evidence against the Tinners. Material central to his inquiry had escaped destruction or detection, and Mueller was learning about it in a press release.
In a normal investigation, Mueller would have been notified weeks earlier about the discovery of the documents, which were vital to his case. But since he had been handed the Tinner file, the magistrate had learned there was nothing normal about the investigation. At every juncture he had run into a stone wall. He had discovered that the Federal Council had ordered the destruction of the evidence against the Tinners only when he read about Couchepin’s press conference in May 2008. The federal police, who would normally work as the magistrate’s investigators, had been ordered by senior police officials not to cooperate with Mueller. Instead the magistrate had to rely on the cantonal police, who had less experience with complex national security investigations. Requests had been sent to seventeen countries that he believed had evidence that would help him rebuild the Tinner case. Most countries had cooperated to some extent. But the United States, which held the most critical material, had maintained complete silence in response to requests for assistance that dated back to Lehmann’s review.
“There is only one word that applies to this case,” Mueller said later. “It is weird, just weird.”
Now the newly discovered files promised a major break. Mueller had been handed only a few files in March when he started his inquiry, and he had immediately recognized that there were extensive gaps in the material. The press release made it likely that some of those gaps might be filled, but the magistrate did not ask to see them immediately. He observed strict independence from the Justice Ministry, so he thought it better to wait, assuming someone from the ministry would come and explain that new evidence had been discovered. But Mueller underestimated how weird and politically charged the Tinner case had become. After several days of silence from the ministry and speculation in the press about the newly discovered material, Mueller made some telephone calls. He got nowhere. He ordered the attorney general’s office to turn over the thirty-nine files to him, but the prosecutor referred him to the federal police. He sent an order to the federal police, demanding the files, and he was told that the police did not have them. The police referred him back to the attorney general’s office. The press release said the records were “open for inspection,” but apparently not by the magistrate with the legal authority to review them.
Mueller did not see any of the evidence until May, when the Justice Ministry allowed him to inspect about half the files. He was limited to those that did not contain information that had been identified as “proliferation sensitive” or “NPT-related.” One of the files Mueller examined was No. 10. As he read through the interrogations in which the Tinners recounted their cooperation with the CIA, the magistrate recognized that the evidence would play a major role in any prosecution. “The Tinners’ cooperation with a foreign secret service could lead to a justification of their action, at least from a certain time onward, and could also have an impact on the sentencing by the court,” he said later. “From this perspective, the issue of cooperation is relevant to our work.”
Based on what he found in those files, the magistrate realized that he would have to inspect all of the files before he could reach a conclusion on whether to recommend prosecution of the Tinners. There was always a chance the other files contained exculpatory material. What he did not yet understand was that he would need the help of armed police officers to fulfill his responsibilities.
On June 10, the legal director of the IAEA, Johan Rautenbach, sent an e-mail to the Swiss federal police in which he said the agency was refusing to take possession of any of the records in the thirty-nine files. The IAEA had debated for nearly three months over how to handle the Tinner records. The delay reflected the unprecedented nature of the situation, as well as the general caution that pervaded the IAEA. Some officials had argued that the material should be transferred to the agency for safekeeping and use in ongoing investigations. Others had contended that the IAEA had neither the legal mandate nor the security procedures to take possession of weapons-related material. In the end the ball was tossed back into the Swiss court. The decision on what to do with the documents under the NPT, wrote Rautenbach, rested solely with Switzerland. In careful language, the e-mail suggested that the documents could be retained for use in any prosecutions so long as they were maintained in a secure environment. “Access should be on a strictly need-to-know basis and once the purpose for which it was obtained had been served, no further access would be justifiable,” wrote Rautenbach. “Unfortunately, the IAEA is not in a position to take custody of any nuclear weapons related or other sensitive documentation.”
This was not the answer that the Federal Council wanted. The IAEA had not recommended that the Swiss destroy the plans, even those that dealt with nuclear weapons. Instead the agency suggested that the material be kept under lock and key until the criminal proceedings were finished. At that point, the Swiss should destroy everything. The three-paragraph e-mail had buried the hopes of the Federal Council that it could transfer responsibility to the international agency. As a result the council faced a tough political decision: It could order everything destroyed, which would be consistent with its action in November 2007, or it could maintain some or all of the records for what could be a lengthy criminal investigation and possible trial.
Criticism of the secret decision to destroy the original documents had died down, but the controversy had never gone away completely. All seven ministers were, at heart, politicians and they understood the dangers of being perceived as kowtowing to American pressure. The council had justified its order to destroy the records in 2007 by citing its emergency powers under the war articles in the constitution. But it would be harder to justify this as an emergency, given the months that had passed. After several days of debate, the council decided to take a half-step. It ordered the destruction of 103 pages of the records that were judged the most dangerous—the PAB weapons designs and specific instructions for enriching uranium to weapons-grade levels and constructing the hemispheres for a nuclear device. The fate of the remainder of the files, including No. 10, would be decided later.
The decision was announced on June 24. Citing security concerns, the Federal Council said that a hundred pages dealing with atomic weapons designs would be destroyed shortly to keep them out of “the wrong hands.” Less sensitive documents, such as those dealing with uranium enrichment, would be kept under high security at the Justice Ministry, the government said. Investigators, prosecutors, courts, and the Tinner family’s lawyers could view the remaining records under tight restrictions. The council press statement added that the remaining records would be destroyed at the end of the legal proceedings.
Janiak and other members of the parliamentary commission objected to destroying any of the documents until the criminal proceedings were completed. Surely, the senators argued, the government could maintain sufficient security to protect a mere hundred pages. “There is no international obligation to destroy the documents,” said Hansruedi Stadler, a senator on the commission. The council agreed to postpone the destruction. Instead the pages deemed most dangerous were removed from the files and put in a more secure location. The missing pages were replaced by sheets summarizing their contents.
Andreas Mueller watched the debate with rising concern. He had seen enough of the records to know that they were essential to his investigation. The files contained evidence that the Tinners had shipped centrifuge components and other material for the Libyan project without obtaining the proper licenses. If he were denied access to the files, it would be far more difficult to prove his case or to show that the Tinners were innocent. Now, as the argument between the council and the parliament grew louder, Mueller worried that history was going to repeat itself. He feared the council would order the destruction of everything. He began to formulate a plan to rescue the evidence. For Mueller, the action he was contemplating would be totally out of character, but he believed firmly that his responsibilities as a magistrate required him to do anything within the law to obtain the evidence.