FECL 33 (April 1995):
Are the secret services becoming "states within the state", engaging in conspiracies and manipulating parliament? Does the fight against "organised crime" justify the use of secret service practices in the field of law enforcement?
These and many more questions have suddenly become topical in Germany, after media revelations indicating that the German Foreign Intelligence Service, BND, assisted by obscure under-cover agents, actually staged a widely publicised Plutonium deal in Munich, last August.
The scandal deserves concern even outside Germany. Indeed, some of the key figures involved in the affair are well known for their instrumental role in promoting European police and secret service cooperation within the frameworks of Schengen and the Maastricht Treaty's Title VI.
A spectacular arrest and its political effects
On 10 August 1994, Bavarian police arrested Justiniano Torres, a Columbian national, on his arrival at Munich on a flight from Moscow. Torres carried 363.4 grams of Plutonium 239 in his suitcase. Two companions, the Spaniards Javier Bengochea Arratibel and Julio Oroz Equia, who were waiting for him in Munich, were also arrested. A third Spaniard, with the cover name "Rafa", miraculously disappeared from Munich. At that time, the Bavarian Office of Criminal Investigation (LKA) suggested that he escaped arrest by hiding in a lavatory at the airport.
Plutonium 239 is a highly toxic substance. Two grams are sufficient to kill one million people, and a millionth of a gram can cause cancer. According to nuclear experts, 9 kg of the substance are needed to build an atomic bomb.
German security authorities were quick to stress to a terrified public that the arrest proved the existence of a international criminal network of nuclear trafficking, with suppliers in the CIS and potential buyers among terrorist networks and dictatorships from Asia to North Africa. Bernd Schmidbauer, the Minister of State in charge of coordinating intelligence services, suggested that the Plutonium seized in Munich might have been destined for North Korea.
The spectacular arrest of the nuclear dealers in what was called "operation Hades" happened at a very convenient moment for the Christian conservative parties, CDU and CSU, as well as for high-ranking representatives of the country's security apparatus, who drew ample political benefit of the incident. In autumn 1994, the CDU/CSU parties won elections for both the Bavarian and the Federal Parliament with a "tough on crime" campaign emphasising, among other things, the security risk posed by alleged wide-spread trafficking of nuclear materials and other organised criminal activities originating from Eastern Europe and the CIS.
In September 1994, little more than a month after the Munich seizure, the Federal Parliament passed a law on the "fight against crime". The law, for the first time in German post-war history, provided for a role for a secret service, the foreign intelligence service, Bundesnachrichtendienst (BND), in combatting organised crime (see FECL No.28, p.1).
On the international level too, Germany made effective use of its Plutonium case. Only weeks after the seizure, Minister Bernd Schmidbauer, on a visit to Moscow, severely admonished Russia for not acting more firmly against nuclear traffickers in the CIS, and managed to push through a special Russian-German agreement on increased police cooperation in the field.
On 7 September, less than a month after the Munich seizure, Germany hosted an "informal meeting" of the EU Interior and Justice Ministers in Berlin with the EDU (Europol Drug Unit) and the Europol convention as its main items (see FECL No.28, p.5). At the meeting, German Interior Minister Kanther once again vigorously insisted on the need to extend the tasks of Europol and to develop it into a genuine "intervention task force". He justified all this by referring to the "increasing smuggling of nuclear substances" that national police forces were unable to deal with on their own. Mr. Kanther's wish was fulfilled in March 1995, when the EU Justice and Home Affairs Council decided to add nuclear trafficking, smuggling of illegal immigrants, and car theft to the list of crimes to be dealt with by the EDU and later Europol (see FECL No.32, p.6).
The BND: Germany's largest "criminal organisation"?
Since March, however, steadily growing evidence has indicated that the BND, and other agencies in charge of security and law enforcement on the federal level and in Bavaria, actually staged the Munich deal.
The revelations were made in March, by the German weekly, Der Spiegel.
After presenting its version of the Munich deal, the magazine charged the BND with "abetting serious crime, endangering human lives, lying to the public and dangerously gambling with foreign policy". The magazine's accusations culminate in the conclusion that German intelligence circles are pursuing a "parallel policy of conspiracy". The leader of the SPD (Social-Democrats), Rudolf Scharping, openly suspects secret service people of having "created a market which they had resolved to combat". In an interview with Der Spiegel, Scharping further speculated that the Munich operation might have aimed at pressing the Federal Parliament into extending the legal powers of the BND.
Minister Schmidbauer, who appears to be personally involved in the Munich operation, has hitherto rejected all such accusations. In his view, the Munich seizure amounts to no more or less than a proof of the efficiency of "offensive secret service strategies". The Plutonium deal "was a successful action, and important too. It brought us cooperation with Russia", Schmidbauer boasted.
How everything began
According to Der Spiegel, the deal was staged mainly by the BND's Section 11A, in cooperation with the BND's Madrid field agency. Also involved were Peter (alias "Roberto"), an under-cover agent employed by the BKA (Federal Office of Criminal Investigation) and later by the BND, and a Spanish under-cover agent, Rafael Ferreras, called "Rafa", hired for the purpose by the BND.
According to Spanish sources, "Rafa", who appears to have played a crucial role in the set-up, joined the Guardia Civil at age 18 and was, in due course, awarded a honorary medal by dictator Franco in person. While remaining an "active reserve officer" of the Guardia Civil, he later worked both for Spanish military intelligence and as a drug investigator.
Dealers or under-cover agents?
"Operation Hades" appears to have begun already in autumn 1993. According to "Rafa", a "Spanish contact man" proposed him a Plutonium deal. As it happened, the "contact man" was a long-standing associate of "Rafa".
In May 1994, "Rafa", together with companions met an "obscure German" in Madrid. The Spaniards proposed all sorts of deals, ranging from Russian helicopters to Osmium, but the German, secretly assisted by "Rafa" (who was working for the BND), persistently brought back the conversation to the only deal he was interested in: Plutonium.
A further meeting between "Rafa", a Basque "business man", Javier Bengochea Arratibel, and the "obscure German" took place in the Madrid Novotel hotel on 10 June 1994. The German was presented to Bengochea as "a friend" of "Rafa". According to an unnamed secret service source quoted by Der Spiegel, he was actually a full-time under-cover agent of the BND (possibly Peter, alias "Roberto, who also worked for the BKA). According to Bengochea, the German insisted on receiving a Plutonium sample before making any deal and refused to pay anything in advance. Moreover, he demanded that the delivery take place in Munich only, with the pretext that he had access to a laboratory there.
Under-cover agent offers 2 million dollars commission for Plutonium delivery
Some time later, Bengochea was offered a $2 million commission for the delivery of Plutonium by his German business associate.
Between mid June and mid July, a Spaniard doing casual business in Russia and obviously another "acquaintance" of under-cover agent "Rafa", told a Moscow based business friend, the Columbian Justiniano Torres Benites, that "somebody" in Spain was urgently asking for Plutonium. Torres was running a sales company in Moscow for a large helicopter manufacturer in the CIS and had a lot of Russian business connections. Via Russian contacts, Torres procured a 3 grams sample of Plutonium.
According to Oroz, an "acquaintance of "Rafa"" (the German under-cover agent in Madrid?) informed him in Moscow, that the sample absolutely had to be brought to Munich. Only there could the deal be concluded.
Minister Schmidbauer involved
On 3 July 1994, "Rafa" met his contact officer from the BND's Section 11A, Mathias Hochfeld, and officers of the Bavarian LKA (Land Office of Criminal Investigation). "Rafa" told them about the planned Plutonium deal.
On 11 July, Torres and Oroz arrived in Munich by train from Moscow, with the Plutonium sample. They waited for the purchaser in a Munich hotel. In Madrid, "Rafa" informed the head of the Madrid BND agency, Peter Fischer-Hollweg, of the two men's arrival in Munich, whereupon Fischer-Hollweg warned the BND headquarters that the two would leave Munich shortly and urgently demanded remuneration for "Rafa".
It seems that the BND leadership had some hesitations about the planned proceedings and therefore tried to protect its back by asking Minister Schmidbauer, how much a hint at a nuclear deal was worth.
On 22 July, "Rafa" travelled to Munich with the instruction to mediate between the BND and the dealers from Moscow. "Rafa" met the two men on the same day. He told them that he wanted 4 kg of Plutonium and that he had brought 400,000 dollars with him. Torres showed the 3 grams sample and said that the rest of the substance was still in the CIS.
276 million dollars for 4 kg Plutonium 239
Some days later, the Bavarian LKA prepared its under-cover agent "Walter Boeden" for a meeting with Torres and Oroz. "Boeden" was equipped with a secret microphone. All his negotiations with the dealers were recorded by LKA-technicians. The dealers handed him over the Plutonium sample which "Boeden" told them he wanted to test in his laboratory.
On 26 July, "Boeden" met the dealers, together with "Rafa" and an interpreter, provided by the BND, and not by the Bavarian prosecution authorities. LKA undercover agent "Boeden" requested 4 kg Plutonium 239. Torres demanded to be paid. When "Boeden" refused, Torres proposed that "Boeden" travel with him to Moscow and that the delivery could take place there.
Yet, for obvious reasons, the BND's plan required that the spectacular "strike against international nuclear traffickers" should be staged at home. "Boeden" therefore payed the two dealers 7000 DM in "reimbursement of expenses" and then showed the two men a financing confirmation for 122 million dollars, delivered by a Bavarian bank. The two parties concluded the deal. Upon delivery of 4 kg Plutonium 239 in Munich, "Boeden" would pay Torres and Oroz 276 million dollars. Torres promised to fly to Moscow and return within 2-3 days with 500 grams Plutonium.
Torres left for Moscow, while Oroz stayed in Munich. All the following telephone conversations between the two and their contacts in Moscow were tapped by German intelligence, which thus was informed in advance on the exact time of Torres' return to Munich with a Luft-hansa flight on 10 August 1994.
"Rafa" miraculously escapes spectacular arrest
Torres was arrested upon arrival at Munich's Franz-Joseph Strauss airport with 363.4 grams Plutonium in his luggage, together with Oroz who was waiting for him in the arrival hall. Their companion Bengochea was arrested at a Munich hotel. As for "Rafa" - the man on the BND's paying roll who had been instrumental in staging "operation Hades" and abetting to the deal, he was at the airport too, but, as we already know, escaped arrest by hiding in the airport lavatories and then vanishing into thin air.
What at the time looked like an embarrassing blunder by the Bavarian police, appears in a different light now, given what is known know of "Rafa's" true role. Indeed, the BND has so far paid "Rafa" 100,000 DM and the Bavarian LKA is still determined to remunerate him.
Ruthless endangering of human lives
By allowing the Plutonium transport to take place in a regular Lufthansa passenger flight, the authorities in charge of "operation Hades" deliberately exposed the public to the risk of nuclear contamination.
At the arrival of the Lufthansa flight in Munich, investigators equipped with camouflaged geiger counters immediately boarded the plane. All passengers and crew members were secretly checked for possible contamination. Abnormally high radiation was measured inside the plane, in the hatch where the suit case with the Plutonium was stored. As a precautionary measure, airport personal and police too were checked for eventual contamination after the operation.
Sources: Memorandum by Christian Busold (assistant of Manfred Such, MP at the German Bundestag), 20.4.95; 66 Fragen an die Bundesregierung zur BND-/Plutonium-Affäre, questions to the government by Manfred Such, MP, 19.4.95; Focus, 16/95, 15.4.1995; Frankfurter Rundschau, 18.4.94, 13.4.95, 12.4.95, 11.4.95; Der Spiegel 34/94, 22.8.94, 15/95, 9.4.95, 16/95, 15.4.95; Die Tat, 15/16.4.95; Frankfurter Allgemeine Zeitung, 15/16.4.95, 11.4.95, 12.4.95, Süddeutsche Zeitung, 12.4.95, 19.4.95; our sources.
We may consider as established that the German secret services have abetted the trafficking of extremely dangerous nuclear substances. Nothing indicates that the Plutonium deal would ever have taken place without the instigation of the BND, who offered such enormous sums of money that any Russian with access to the substance would have had to have been either a fool or a saint, to resist the temptation.
According to the Bureau of Political and Military Affairs at the US State Department, nowhere in the world are there even traces of any illegal market for Plutonium. Neither Minister Schmidbauer nor any other German "security expert" has hitherto presented any evidence to the contrary. Far from providing such evidence, "operation Hades" has, if anything, contributed to the artificial creation of such a market. Indeed, for a market to develop, there must be buyers. But so far, the German authorities involved in "operation Hades" have been unable to name any client interested in buying the Plutonium other then their own agents.
We would like to recall some words from the German professor of law and political science, Jürgen Seifert ("The erosion of democracy through the predominance of the executive"; in FECL No.29, November 1994, pp.10-14):
"I would like to emphasise that security campaigns are staged not only by the government, political parties and the media. The present position of power of the bodies in charge of security enables them to stage such campaigns on their own.(...).
[These] secretly operating executive bodies are not only used as instruments for realising party-political interests. They have become separate powers safeguarding their very own interests and running their own policies."
Many questions about "operation Hades" still remain unanswered. It is unclear who within the BND, the Bavarian LKA, and, perhaps, the government, actually initiated and masterminded the operation, who authorised it, and when. Did the BND's local agency in Madrid or the BND's Section 11A start the operation on their own, perhaps behind the back of the BND's presidency? When and to what extent was the Federal Office of Criminal Investigation (BKA) involved? Are zealous under-cover agents, employed or temporarily hired by German intelligence, acting on their own initiative in order to influence German secret service policies?
Considering "Rafa's" background, did the BND entice him away from his Spanish employers, or were Spanish secret services cooperating with their German counterparts?
Which is Minister Schmidbauer's exact role in "operation Hades"? An answer to this question should interest the public not only in Germany, but in all other EU-member states as well. Indeed, ever since his nomination in December 1991 as a State Minister at the Chancellery, responsible for the coordination of all German secret services, Mr. Schmidbauer has put himself forward as a restless advocate of extended powers and new tasks for the police and the secret services. On a European level, he has stubbornly pressed for increased European police and secret service cooperation, both within the Schengen process and in the intergovernmental framework of the Third Pillar of the Maastricht Treaty. If things develop according to Bernd Schmidbauer's wishes, Europol is likely to soon carry out undercover operations inspired by "operation Hades".
Schmidbauer's European activities seem to be particularly appreciated in Spain, whose secret services, incidentally, are currently shaken by the revival of the GAL affair involving accusations of state terrorism. Indeed, the German Plutonium scandal did not prevent the Spanish government from awarding Schmidbauer with a honourary medal for his valuable services in preparing Spain's speedy integration into the Schengen Group.
None of the numerous protagonists of "operation Hades" are known to be particular friends of transparency. In spite of the end of the Cold War, the BND has continued to grow into an increasingly complex and multi-vocational mega-structure with ever more sections and field agencies out of reach of any serious control. The menacing Section 11A, for example, has specialised in finding new tasks for the BND. The field agency in Madrid is only one among 70 spread over the whole world.
Not either should we expect to learn much more through the trial in May of the dealers arrested in Munich. In the 23 page accusation before the 9th Criminal Chamber of the Land Court of Munich, the BND is not even mentioned.
In the late 70s, Robert Jungk predicted that the extremely complex and vulnerable high-tech "nuclear society" of the future would lead to the setting up of a pro-active police state, i.e to the gradual abolition of fundamental rights and freedoms. One should have Jungk's grim vision in mind when assessing the real significance of affairs such as "operation Hades".
Far from admitting any wrong-doing in the secret service operation, Mr. Schmidbauer is lecturing his critics by referring to the terrorist gas-attack in Tokyo: "A preventive operation is better than investigating with hindsight - see the poisonous gas attack in Tokyo", he remarks and claims that "it is always better to have a preventive operation that casts light on things and shows us the necessary consequences".
Events such as the recent dreadful bomb attack in Oklahoma City are likely to further benefit the pro-active policing objectives of Schmidbauer and his like-minded colleagues on both sides of the Atlantic: In the aftermath of the Vietnam debacle, the American FBI was denied the authority to spy on and infiltrate politically "suspect" groups for merely preventive purposes, after protests against the agency's massive "pro-active" surveillance of US anti-war groups. In the wake of the Oklahoma bomb attack, President Clinton has stated his intention to reintroduce the FBI's former authority. Legislation is likely to be adopted within weeks.
Both the German Plutonium scandal and the Oklahoma bombing are more than just deplorable incidents. They might soon prove to be mile-stones in making Robert Jungk's night-marish vision true.