Germany's Spies Refuted the 2007 NIE Report

'Work on nuclear weapons can be observed in Iran even after 2003'

By BRUNO SCHIRRA | FROM TODAY'S WALL STREET JOURNAL EUROPE.

President Obama has committed to trying diplomacy to stop the Iranian bomb. Time, though, is on the mullahs' side, not least because so much of it was wasted after the 2007 U.S. National Intelligence Estimate made the improbable case that Iran had suspended its nuclear weapons program in 2003. This assessment not only contradicted previous U.S. intelligence consensus but -- as recent court documents show -- also the conclusions of a key U.S. ally with excellent sources in Iran -- Germany.

The Bundesnachrichtendienst (BND), Germany's foreign intelligence agency, has amassed evidence of a sophisticated Iranian nuclear weapons program that continued beyond 2003. This usually classified information comes courtesy of Germany's highest state-security court. In a 30-page legal opinion on March 26 and a May 27 press release in a case about possible illegal trading with Iran, a special national security panel of the Federal Supreme Court in Karlsruhe cites from a May 2008 BND report, saying the agency "showed comprehensively" that "development work on nuclear weapons can be observed in Iran even after 2003."

Barbara Kelley

According to the judges, the BND supplemented its findings on August 28, 2008, showing "the development of a new missile launcher and the similarities between Iran's acquisition efforts and those of countries with already known nuclear weapons programs, such as Pakistan and North Korea."

It's important to point out that this was no ordinary agency report, the kind that often consists just of open source material, hearsay and speculation. Rather, the BND submitted an "office testimony," which consists of factual statements about the Iranian program that can be proved in a court of law. This is why, in their March 26 opinion, the judges wrote that "a preliminary assessment of the available evidence suggests that at the time of the crime [April to November 2007] nuclear weapons were being developed in Iran." In their May press release, the judges come out even more clear, stating unequivocally that "Iran in 2007 worked on the development of nuclear weapons."

The judges had been asked to consider an appeal in the case of a German-Iranian businessman accused of brokering supplies for Iran's nuclear weapons program. The Federal Prosecutor had charged the defendant, identified by the authorities only as "Mohsen V.," with violating Germany's War Weapons Control Law and the Foreign Trade Act. A lower court in Frankfurt refused to try the case on the grounds that it was unlikely that Iran had a nuclear program at the time of the defendant's activities in 2007, citing the NIE report as evidence.

That's why the Supreme Court judges had to rule first on the question of whether that program exists at all. Having answered that question in the affirmative, the court had to rule next on the likelihood of the defendant to be found guilty in a trial. The supreme court's conclusions are unusually strong.

"The results of the investigation do in fact provide sufficient indications that the accused aided the development of nuclear weapons in Iran through business dealings."

The supreme court thus annulled the lower court's decision to throw out the case, demanding that the Frankfurt-based judges try the defendant on the original charges.

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