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Cablegate: Trial of A.Q. Khan Linked Defendant Gotthard Lerch Resumes

VZCZCXRO5066
OO RUEHAG RUEHDF RUEHLZ
DE RUEHFT #1817/01 1620733
ZNR UUUUU ZZH
O 100733Z JUN 08
FM AMCONSUL FRANKFURT
TO RUEHC/SECSTATE WASHDC IMMEDIATE 6853
INFO RUCNFRG/FRG COLLECTIVE IMMEDIATE
RHEBAAA/DEPT OF ENERGY WASHINGTON DC IMMEDIATE
RUEHSA/AMEMBASSY PRETORIA IMMEDIATE 1593
RUEHIL/AMEMBASSY ISLAMABAD IMMEDIATE 4308
RUEHTRO/AMEMBASSY TRIPOLI IMMEDIATE
RUEHKL/AMEMBASSY KUALA LUMPUR IMMEDIATE 0235

UNCLAS SECTION 01 OF 02 FRANKFURT 001817

DEPARTMENT FOR T, EUR, ISN, SCA, AF, EAP

SIPDIS

SENSITIVE

E.O. 12958: N/A
TAGS: PARM MNUC PREL KNNP ETTC KJUS KCRM PREL GM
SUBJECT: TRIAL OF A.Q. KHAN LINKED DEFENDANT GOTTHARD LERCH RESUMES

REF: A. 07 BERLIN 2239
B. 06 BERLIN 2194
C. 06 BERLIN 1170

FRANKFURT 00001817 001.2 OF 002


Sensitive but unclassified; not for internet distribution.

1. (SBU) SUMMARY: On June 5, the 4th Senate of the Higher Regional
Court (a federal court) in Stuttgart re-opened the trial of Gotthard
Lerch, a German engineer allegedly linked to the A.Q. Khan nuclear
proliferation network. Lerch is accused of aiding the Libyan
government in its efforts to acquire nuclear weapons technology.
The trial was suspended in July 2006 by a Mannheim district
(state-level) court because of extradition issues and unresolved
requests for judicial assistance from Switzerland, Malaysia,
Liechtenstein, and South Africa. On the opening day of the trial in
Stuttgart, the defense demanded to have the case moved back to
Mannheim, calling the acceptance of the case by the Stuttgart Higher
Regional Court "illegal" and the court's authority "objectively
arbitrary." The trial is expected to last through January 2009.
Some media outlets speculate that the case could be dismissed due to
lingering problems with evidence and other legal complications. END
SUMMARY.

New Trial - Old Strategy
------------------------
2. (SBU) On the opening day of the trial, defense attorneys
Gottfried Reims and Christof Pueschel filed a motion arguing that
the decision to move the trial to Stuttgart was "illegal" and
claiming that the Higher Regional Court was not the competent
authority. [NOTE: In 2006, the Federal Prosecutor's office in
Karlsruhe formally petitioned to have the case reassigned from the
Mannheim district court to the Stuttgart court as the result of
changes in German procedural rules that give regional (federal)
courts jurisdiction over violations of the Foreign Trade and
Payments Act (FTPA) and War Weapons Control Act (WWCA). END NOTE.]
Before Wolfgang Siegmund of the Federal Prosecutor's Office could
read the indictment, the defense requested that the case be moved
back to the Mannheim court. Lerch's attorneys also made clear that
their client will not testify in the trial. In a second motion,
both attorneys requested to have the complete trial taped, something
the prosecution opposes. The judge will rule on the motions at the
next session on June 12.

3. (SBU) Lerch's attorneys appear to be pursuing the same strategy
they employed in 2006, when the case against Lerch was still under
the jurisdiction of the Mannheim court. Lerch was released
following fourteen months of pretrial detention when the Mannheim
court suspended the trial in July 2006. The court cited missing
files and concerns over Germany's extradition law. At that time,
his lawyers argued that the Mannheim court did not have the legal
competence to conduct the trial and insisted it be moved to a
specialized court in Konstanz. This time, prosecutors argued that
the procedural changes that allow the Federal Prosecutor's Office to
take on cases of special importance -- including violations of the
FTPA and WWCA -- were adopted specifically for the Lerch case, a
charge which the prosecution staunchly denies. The judge will rule
on both motions this week. Given that the procedural changes were
institutionalized in the so-called "Second Judicial Modernization
Law," the defense argument appears to have a weak legal basis for
challenging the Stuttgart court's authority.

Lerch: A Danger to Germany's National Security?
--------------------------------------------- --

4. (SBU) Lerch stands accused of violating both the FTPA and the
WWCA. The sixty-five year old engineer currently lives in
Switzerland, but appeared in court on the first day of the trial.
The prosecution argues that he endangered the external security of
the Federal Republic of Germany, jeopardized international peace,
and damaged Germany's international reputation. Lerch is accused of
hiring a friend in South Africa to produce a system of tubing for a
Libyan enrichment facility designed to produce weapons-grade
uranium. Lerch is alleged to have worked with Pakistani nuclear
scientist Abdul Quader Kahn. Prosecutors claim he received 55
million German marks for his work.

5. (SBU) Three experts on nuclear technology were present at the
opening and will testify in the trial. One of the three, Horst
Puettner, originally examined material found and confiscated by U.S.
forces on a German cargo ship (BBC China) bound for Libya in 2003.
The detention of the ship in 2003 was followed a short time later by
the Libyan government's announcement that it would abandon its

FRANKFURT 00001817 002.2 OF 002


nuclear program. In a written statement, Puettner concluded that
the materials found on the ship were intended for the production of
nuclear weapons.

6. (SBU) Several media sources have speculated that the case will be
dismissed due to a lack of evidence. Newspapers have reported
rumors that the Swiss government destroyed key files in the case at
the request of the U.S. government. According to the papers, the
CIA worked with Lerch and his associates to gain information on
Libya's nuclear program and, in return, helped Lerch and his
associates evade prosecution.

7. (SBU) COMMENT: The opening of the trial revealed that Lerch's
attorneys plan to use similar tactics as in earlier phases of the
trial, once again employing legal nuances to question the courts
authority. Both the defense and the prosecution expect the trial to
last at least eighteen months. END COMMENT.

8. (U) This cable was coordinated with Embassy Berlin.

POWELL

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