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The following is a guest post from *Oliver Meier*, the international representative and correspondent of the “Arms Control Association”:http://armscontrol.org/ and a researcher with the Hamburg Institute for Peace Research and Security Policy, also known as “IFSH”:http://www.ifsh.de/IFSH_english/personal/m_omeie.htm. Dr. Meier is based in Berlin.

Take it away, Oliver…

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On July 20, the _Wall Street Journal Europe_ ran an op-ed by German journalist Bruno Schirra, its headline declaring that “Germany’s Spies Refuted the 2007 NIE Report”:http://online.wsj.com/article/SB124803669414063037.html.

The article was quickly seized upon by “those who”:http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/07/21/david-frum-reality-overcomes-fantasy-as-iran-races-for-the-bomb.aspx “have argued”:http://www.americanthinker.com/2009/07/did_the_cia_cook_the_books_on.html “all along”:http://www.weeklystandard.com/weblogs/TWSFP/2009/07/german_spies_refute_2007_nie.asp that that the NIE — which concerned Iran’s nuclear weapons development activities — was wrong. But this conclusion may be overstated.

Specifically, Schirra claims that the German foreign intelligence agency (the “Bundesnachrichtendienst”:http://www.bnd.de/EN/__Home/Startseite/startseite__node.html?__nnn=true, or BND) had found that Iran continued to work on nuclear weapons after 2003, contradicting the “Key Judgments”:http://www.dni.gov/press_releases/20071203_release.pdf of the above-mentioned 2007 U.S. National Intelligence Estimate.

Schirra bases his argument on a decision by Germany’s Federal Court of Justice, which decided an appeal in the case of a German-Iranian businessman accused of illegally brokering the transfer of dual-use items to Iran.

The details of the technologies in question are blacked out in the legal opinion, but one charge brought against the defendant involves the transfer of high-speed cameras, which the legal opinion describes as “essential for the development of nuclear warheads.” The Court also claims that the defendant “correctly assumed” that the cameras would be used in Iran’s nuclear weapons program.

A second charge involves counting tubes for radiation-resistant detectors, which the legal opinion describes as being specifically designed to withstand nuclear detonations. The U.S. company that produces the instruments describes these instruments as being designed for use in nuclear installations and says that they can be used “for military purposes.”

The counting tubes are covered by Annex 2 of the April 19, 2007 EU Iran Sanctions Act (“423/2007”:http://eur-lex.europa.eu/LexUriServ/site/en/oj/2007/l_103/l_10320070420en00010023.pdf), which concerns nuclear technologies. The cameras were not covered in 2007 (and thus the brokering of that technology did not violate EU regulations). High-speed cameras that can take more than 225.000 frames per second were added to the EU sanctions list only in early 2008 (with the amended Iran Sanctions Act 116/2008).

_[The paragraph above has been corrected.]_

Both technologies also have benign uses. In the case of the high-speed cameras, which were supplied by a Russian company, the official end-user was a university in the Middle East. In the case of the counting tubes, which were to be delivered from the U.S. manufacturer through a German firm to an Iranian end-user via Dubai — the defendant apparently considered several possibilities to justify the export. These included uses in agriculture and medicine. In the end, he wrote to the German export control authority (“BAFA”:http://www.bafa.de/bafa/en/export_control/index.html) that the instruments could be used in nuclear facilities, but that their intended use was in the production of cement. BAFA didn’t buy this story, and indeed, it seems difficult to imagine why one would need radiation-hardened detectors in the cement industry.

A lower court in Frankfurt had dismissed the case in August 2008, partly because the prosecution could not convince the judges that Iran was pursuing the development of nuclear weapons in 2007, when the defendant tried to broker the sale of the technology.

The prosecution appealed against this ruling and was partly successful. The Federal Court of Justice ordered the case to proceed for two of three charges brought against the defendant. Schirra uses the Court’s “30-page legal opinion”:http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=e3222e48831092294418803c4fa76d86&nr=48143&pos=10&anz=18 and a “press release”:http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=e3222e48831092294418803c4fa76d86&nr=48109&linked=pm&Blank=1 by the Court to claim that the BND “has amassed evidence of a sophisticated Iranian nuclear weapons program that continued beyond 2003.”

However, the information publicly available about the Court’s ruling does not support such a broad claim.

In fact, the Court found only that, based on a May 2008 BND report, “it is sufficiently likely” that Iran was working on nuclear weapons in 2007 to reopen the case. The lower court in Frankfurt had described the same BND report as “extremely vague” (a fact conveniently ignored by Schirra). The Federal Court came to a different conclusion, saying that the BND made a “plausible case” that Iran continued working on nuclear weapons. But the judges made it explicitly clear that it was not their job to arrive at a substantive judgment about whether Iran had actually been working on nuclear weapons in 2007.

This is more than a matter of semantics. The Federal Court stated that it will be possible to arrive at any conclusion about whether Iran did indeed work on nuclear weapons only after the case against the defendant has been reopened. The Federal Court also stated that it will be necessary to hear additional witnesses and consider new evidence to reach a conclusion about whether Iran did indeed work on nuclear weapons in 2007.

Of course, the BND report itself is classified, but the Federal Court’s legal opinion cautions that the intelligence report is only “secondary evidence” that does not reveal the sources on which its findings are based. The legal opinion states that the BND report is itself partly based on information about Iranian procurement activities involving “well-known institutions” and dual-use technologies. Information about procurement, of course, does not provide direct evidence that Iran is actually developing nuclear weapons (a point not lost on the 2007 NIE).

According to the Federal Court, a second report supplied by the BND on August 28, 2008 “specifies and supplements” the first BND document by highlighting (for example) Iranian efforts to develop nuclear weapons delivery systems, and similarities between Iranian, North Korean, and Pakistani procurement patterns. But again, the Court’s description of the document does not support the claim that it contains actual evidence of Iranian nuclear weapon development efforts.

Schirra calls the Federal Court’s conclusion “unusually strong.” Actually, the opposite is true. Whether the BND actually made a convincing case that Iran continued its nuclear weapons program after 2003 appears to lie in the eye of the beholder. One court (in Frankfurt) dismissed the case, while the higher court found it sufficiently plausible to justify reopening the collection of evidence. It will be worthwhile to follow the proceedings when the case resumes: the question of Iranian nuclear weapons efforts is likely to take center stage.

In any case, the legal opinion provides fascinating reading about continued Iranian efforts to get its hands on dual-use technologies with nuclear applications. And the news is not all bad. While the defendant was able to supply Iran with two high-speed cameras that can be used for nuclear-weapons diagnostics, he failed to deliver the counting tubes for radiation resistant detectors. In the latter case, the German export control authority kept on questioning the end-user certificate until he gave up.