Conflict over nuclear files intensifies

[Francois Cellier]

From SwissInfo

Conflict over nuclear files intensifies

Thomas Stephens and Urs Geiser
swissinfo.ch
July 10, 2009 - 12:29 PM


Following a police raid on a federal building in connection with a nuclear-smuggling case, tensions between Switzerland's judiciary and executive have escalated.

At the centre of the showdown is a dossier that contains roughly 100 pages of documents so sensitive that the government wants them destroyed. The original files were indeed shredded secretly in November 2007 but copies surfaced last December.

Andreas Kley, a law professor at Zurich University, rejects the government's argument that the exceptional nature of the case demands exceptional measures.

"Referring to an emergency clause in the constitution which enables it to take necessary measures in extraordinary cases, the government wants to intervene in a criminal case and destroy some files," he told swissinfo.ch on Friday.

"To do this, the government must be able to show that it is essential for the public interest that matters are resolved. This has not been shown in the current case. The government decided to destroy the files without explaining why."

At the centre of the heated debate between lawyers, parliamentarians and the government are documents related to the Tinner affair, particularly those that contain plans for a nuclear bomb.

Urs, Marco and Friedrich Tinner, engineers with ties to a centrifuge business, have been the subject of allegations that they contributed to a nuclear smuggling ring run by Abdul Qadeer Khan, the father of Pakistan's nuclear programme. The Tinners maintain their innocence.

On Thursday investigators and cantonal police stormed into federal security offices in Bern and seized a safe containing a key to a filing cabinet that holds the disputed documents. The files themselves were not taken, but it is not clear whether the government still has access to them and can order their immediate destruction.

It is believed that the documents include information about the involvement of the CIA in the Khan network. In addition, former Justice Minister Christoph Blocher is alleged to have promised his United States counterpart during a visit to Washington in 2007 that the files would be destroyed.

"This situation is absolutely unprecedented," Kley said. "There has never been such a conflict between the government and the federal criminal authorities."


Delicate issue

Investigators say the dossier with the copied files is crucial to the smuggling case and have demanded it be handed over in full. So far the government has refused, saying the documents are a matter of national security and that the ministers' decision to destroy them leaves no legal room for an appeal.

On Thursday the government said it considered the order to confiscate the safe and key to be invalid.

On Friday the justice ministry would make no further comment, although now that the justice authorities have the keys, it can appeal against the move.

"The next step is particularly delicate," said Kley, explaining that the main issue now was sorting out who had the authority to handle the files.

"Depending on who has this power, the files will either be destroyed, if it's the government, or preserved, if it's the investigating authorities. No one knows at the moment; we've got to wait. We'll probably know in a few days who has the real power over the files and their subsequent fate."

In August the Senate is scheduled to discuss the issue, amid calls for a parliamentary investigation.


"Power-mad politicians"

The police raid has been the main story in Swiss newspapers, which failed to find a common line.

In the Neue Zürcher Zeitung (NZZ) Alain Griffel, a law professor at Zurich University, described the move by the court as "high-handed".

Griffel admits that neither the constitution nor the law helped resolve the issue, but believes the government should have the trump card when the interests of the state are at stake.

The NZZ also quoted Georg Müller, a retired professor of law, as saying it was a serious conflict about the separation of powers between judiciary and executive and the question of who should have the upper hand.

Bern's Der Bund and the Zurich-based Tages-Anzeiger were more critical of their politicians.

The government was obsessed with power, said the Tages-Anzeiger in its editorial. "There are now serious doubts about whether the government is in touch with reality. The seven power-mad politicians appear to believe they rule the citizens of this country. But in reality they serve them."

The Berner Zeitung said it was high time to answer many questions. "Switzerland can't afford such a major dispute between the judiciary and the executive. The country benefits, like no other, from social, political and legal stability – particularly during a global financial crisis."

For its part, the Neue Luzerner Zeitung takes confort in that "the separation of powers works well in Switzerland."