AQ KHAN TRIAL - NPA MAKES CASE FOR IN CAMERA

C O N F I D E N T I A L SECTION 01 OF 04 PRETORIA 001723 SIPDIS SIPDIS DEPT FOR P, T, ISN/CPI, AF/S E.O. 12958: DECL: 05/02/2017 TAGS: PARM MNUC PREL KNNP SF SUBJECT: AQ KHAN TRIAL - NPA MAKES CASE FOR IN CAMERA PROCEEDINGS REF: A. PRETORIA 1497 ¶B. PRETORIA 1156 ¶C. PRETORIA 0757 Classified By: Deputy Chief of Mission Don Teitelbaum. Reasons 1.4(b) and (d). -------------- SUMMARY and INTRODUCTION -------------- ¶1. (C) On 02 May, Pretoria High Court Judge Joop Labuschagne heard arguments on the National Prosecuting Authority (NPA) application requesting that extensive portions of the A. Q. Khan prosecution be held in camera. Intervening parties opposing the application were South African weekly Mail & Guardian, the Freedom of Expression Institute, the South African National Editors' Forum, and the South African Chapter of the Media Institute of Southern Africa. DepPolCouns observed the hearings, which were not heavily attended and received minimal press coverage. ¶2. (C) The State argued that the proposed blanket in camera authorization represents the optimal balance between the public's right to know and the government's responsbility to protect its citizens and meet its non-proliferation obligations. The intervening parties did not dispute the fact that certain aspects of the trial would require secrecy, but argued that the State's application was overly broad and that individual determinations should be made for each witness, piece of testimony, and item of evidence. USDoE Deputy Administrator Tobey's affidavit featured prominently in the discussion. ¶3. (C) Judge Labuschagne stated he would rule on the application within ten court days (ooa 16 May). While the State made a strong case, it is possible the Judge could narrow the scope of the State's precedent-setting application. No matter the outcome, the losing side is expected to appeal the Judge's decision. Any such appeal is likely to be presented before the Constitutional Court in June and should be completed in time to allow presentation of evidence to begin on 31 July, as planned. Main arguments from both sides are summarized below. Reftels report on prior trial developments. -------------- NPA Argues for Blanket In Camera Provisions -------------- ¶4. (C) NPA Constitutional law expert Advocate Win Trengove argued that the A. Q. Khan case is an extraordinary one because defendants Daniel Geiges, Gerhard Wisser, and Krisch Engineering are being prosecuted "for divulging secrets which no one may divulge." This need for secrecy is well established under existing international and domestic law. The case is therefore based on a different paradigm, namely, that it is in the interests of people of South Africa and of the State that the essential facts and technical evidence be kept secret. He acknowledged that the State was hampered in making its case for in camera proceedings, because it cannot present in open court specific examples of evidence which meets the criteria for secrecy without compromising same. ¶5. (C) Trengove outlined international legal obligations under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT),South Africa's IAEA Safeguards Agreement, IAEA trigger lists and guidelines regarding dual use items, UNSCR 1540, and the Pelindaba Treaty (establishing the African nuclear weapons free zone). He detailed parallel State obligations under South Africa's Nuclear Energy Act of 1993 and Non-Proliferation Act of 1993. He also noted that evidence seized in the course of the investigation has been placed under IAEA seal and, while available for purposes of prosecution, must be strictly safeguarded. ¶6. (C) Adv. Trengove acknowledged the fundamental South PRETORIA 00001723 002 OF 004 African principle of open justice as a countervailing concern, but stated "there are exceptions, and this is one." He reminded the Court that the defendents were not contesting the State's in camera application, therefore, their constitutional right to a fair trial was not in dispute. The only constitutional issue at stake was freedom of the press and the public's right to know. Per South African case law, exceptions to the open justice principle can be made based on the "paramount duty" to ensure justice is done, the obligation to ensure that the proceedings are fair to both the accused and the public, and where "compelling considerations" exist (sex offenses, tax courts, offenses committed by minors, etc.). ¶7. (C) Trengove detailed sections of the South African Criminal Prosecution Act permitting in camera proceedings in the interests of state security, good order, public morals, or administration of justice and permitting concealment of witness identity in those four sets of circumstances, as well as in cases where revealing witness identity may place the witness at risk of harm. He also cited sections of the Nuclear Energy and Non-Proliferation Acts which provide for in camera proceedings where it is in the interests of national security or where disclosure would undermine the function of the SAG's Non-Proliferation Council, subvert controls on trigger list and dual use items, or otherwise impede the State's implementation of its non-proliferation responsibilities. He highlighted the fact that controls on trigger list and dual use items included both the items themselves and the relevant technological information. ¶8. (C) Trengove summarized how each of the various affidavits submitted by the State supported the above legal grounds. He argued that the State had clearly documented that the evidence and information for which in camera proceedings were requested was trigger list and/or dual use technology and that failure to protect it would be in direct conflict with the State's domestic and international legal obligations and would impede the function of the NPC. He characterized interveners' arguments that some elements of this information might be innocuous as "spurious" and "based on speculation." He conceded that certain routine questions and responses during witness testimony might not require in camera treatment, but argued these elements were too interwoven with controlled information to separate them out for delivery in open court. (For example, it was impractical to have a SAPS inspector appear in open court to state his name, position, and confirm the existence of the search warrant, but then to empty the courtroom in order to bring in the items seized under that warrant so he could identify them.) ¶9. (C) Trengove argued that, while no specific threats to witnesses were identified, the State had shown evidence of prior attempts by the "rogue community" to "buy" nuclear experts and the threat was "not invented" since international experts had conditioned their assistance on anonymity. In any event, the risk to society at large was clear and merited protection of witness identity on state security grounds, even if the threshhold for risk of harm to specific witnesses had not been met. He also stressed that the State's application was interlocutory in nature and the Court would be able, from time to time, to reconsider the application and to amend it if it proved overly permissive or constrictive. Trengove stated that it was entirely appropriate to err on the constrictive side at the outset, since "an error one way involves no appreciable harm" only a slight delay in making information available to the public, while "an error the other way can have calamitous consequence" there being no way to recall proliferation-sensitive information once publicly released. Finally, he reminded the Court that beyond the legal arguments it must also consider the "factual" one that any release of information which might assist nefarious elements in constructing a nuclear weapon would put the public at devastating risk, far outweighing any public benefit associated with access to that information. PRETORIA 00001723 003 OF 004 -------------- Media Argue for Case-by-Case Determinations -------------- ¶10. (C) Advocates for the intervening parties countered that the idea the interlocutory order sought by the prosecution can be revisited later and eased if necessary "inverts the principle at stake." Rightfully, the trial should be held in open court until the proceedings enter into a substantive area requiring greater protection. Any such determination should be made by independent assessment of the information in question, not by the State, which has a vested interest. The intervening parties conceded that there are valid exceptions to the principle of open justice and that in any non-proliferation case it can be expected that certain aspects must be heard in camera. However, they argued that the NPA application amounted to an "unprecedented request for a secret trial" and that it was unconsionable for the defendents' wives, family and friends to be excluded from the majority of trial proceedings. ¶11. (C) Adv. Marcus rebutted the State's position that they could assert only the right to freedom of the press, presenting Canadian case law supporting the concept that once a party has standing, they may challenge a law on any ground. They cited Australian and U.S. Supreme Court decisions (Richmond Newspapers v. State of Virginia) establishing the instrumental effect open justice has on ensuring quality of evidence and hence, a fair trial. ¶12. (C) Marcus acknowledged the unusual nature of the case, but faulted State affidavits in support of the in camera application for failing to provide the level of detail the Court needed to grant an in camera order of the breadth requested. They argued that on all prior occasions, in camera proceedings have been requested on a case-by-case basis, with the assistance of independent experts. The intervening parties do not have the capacity to make an independent assessment of the State's allegations, nor does the Court have sufficient information to do so. The number, identity, qualifications, and publishing/lecturing history of the witnesses is unknown. The only specific evidence the State had presented in support of its claims of risk to witnesses was a single failed recruitment attempt. The reference in USDoE Deputy Administrator Tobey's affidavit to terrorism "has a dramatic ring to it" and is so broad one could conclude that every USG employee is a potential target for attack. A vast amount of literature on the topic of uranium enrichment is publicly available and the State has not established how its evidence differs from what already is out there. NECSA nuclear safeguards expert Dietlib Tillwick's affidavit notes that he has studied only a small sampling of the documents in evidence, thus he cannot confirm that every single item of evidence for which the State requests protection is not already in the public domain, nor does he convincingly establish that the A.Q. Khan video cited in an August 2006 New Yorker article differs from the one held in evidence by the State. "The onus is on the State. They can do this properly, but they haven't as yet." ¶13. (C) Finally, the intervening parties offered a confused argument regarding the dual use items in question. They asserted that these deserved particular case-by-case scrutiny because the Court does not know which were in the public domain before being placed on dual use control lists. NPA advocates subequently pointed out that the Court must abide by current domestic and international controls on these items, which require in camera treatment to avoid any risk of proliferation. ¶14. (C) The intervening parties concluded that the State has a responsibility to protect and promote the bill of rights, to set an example -- the in camera application flies in the face of these responsibilities. They argued that the NPA undertakings to protect the identities of NECSA and USDOE witnesses improperly exceed the State's authority. They also argued that it was not acceptable to grant so broad an in PRETORIA 00001723 004 OF 004 camera application on the basis that separating the sensitive elements of the State's case from the non-sensitive elements will entail disruption to the trial and additional work for the prosecution. The Court is required to establish a process entailing "the minimum possible infringement of the open justice principle." The State's in camera application does not meet this threshhold, therefore the Court must require the State to present additional evidence demonstrating the need for closed proceeding for each witness and piece of evidence. -------------- Press Coverage -------------- ¶15. (C) To date, media coverage of the hearings has been minimal. Six articles in various local publications reported on the facts of the hearings, making reference to the U.S. component, but applying no particular scrutiny to it. Mission has received only one press inquiry about the USG role in the hearings -- a call from John Kaninda of South African daily Business Day, which plans to run a story on the hearings in conjunction with Judge Labuschagne's eventual ruling. Mission responded to this inquiry with established interagency press guidance. -------------- Comment -------------- ¶15. (C) The State appears to have made a strong case in support of its in camera application. Lawyers for the intervening parties did not even address the NPA's fundamental justification of risk to state interests and to the general public. However, a blanket application of this nature is unprecedented. It is possible, as a compromise measure, that the Court could decide to require further justification from the State for the various categories of witnesses and evidence for which in camera proceedings have been requested. ¶16. (C) No matter the content of Judge Labuschagne's ruling, it is highly likely the losing party will appeal his decision and the opposing party will contest that appeal. Because the fundamental issue at stake is the constitutional right to freedom of expression, it is likely any appeal would go directly to the Constitutional Court. Notice of intent to appeal must be filed within ten court days of the judge's ruling. Notice of intent to oppose an appeal must be filed within ten court days of filing of the appeal itself. Thus, any appeal is likely to be argued in June and should be resolved in time for presentation of evidence to begin on 31 July, as planned (Ref A). (U) Minimize considered. Bost