Monday, 1 March 2021

Megrahi petition to be considered by Scottish Parliament Justice Committee

Justice for Megrahi's petition PE1307 is on the agenda for the virtual meeting of the Scottish Parliament's Justice Committee to be held tomorrow, Tuesday 02 March, at 10.30. The meeting will be broadcast on www.scottishparliament.tv. What follows is Justice for Megrahi's submission to the committee.

On 28th June 2011 the Public Petitions Committee referred the Justice for Megrahi (JfM) petition PE1370 to the Justice Committee for consideration. Its terms were as follows.

‘Calling on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988.’

On 6th June, 2013, as part of its consideration, the Justice Committee wrote to KennyMacAskill MSP, then Cabinet Secretary for Justice, asking for the Government’s comments on our request for a public enquiry. In his reply of 24th June 2013, while acknowledging, that under the Inquiries Act 2005, the Scottish Ministers had the power to establish an inquiry, he concluded:

‘Any conclusions reached by an inquiry would not have any effect on either upholding or overturning the conviction as it is appropriately a court of law that has this power. In addition to the matters noted above, we would also note that Lockerbie remains a live ongoing criminal investigation. In light of the above, the Scottish Government has no plans to institute an independent inquiry into the conviction of Mr Al-Megrahi.’

As you are aware the above petition was first heard by the Justice Committee on 8th November 2011 and has been kept open by the committee to allow various developments related to the Lockerbie case to be monitored.

On 6 March 2020 the Scottish Criminal Cases Review Commission (SCCRC),following a submission by the Megrahi family, referred the case back to the Court of Appeal.

On 15 January 2021 that court dismissed the appeal and upheld the originalconviction. Aamer Anwar, the Megrahi family lawyer, has stated that the family willnow appeal to the UK Supreme Court and will continue pressing for the UKgovernment to release a secret document thought to implicate Iran and a Palestinian terror group.

The Crown Office, Police Scotland and the American law enforcement authorities have all confirmed that the investigation into the bombing remains open and that leads are being actively pursued.

As the Cabinet Secretary for Justice stated on 24th June 2013, the decision whetheran independent inquiry should be held in Scotland depends on the criminalinvestigation being completed and matters having been fully determined judicially. Until this happens we believe it is vital that our petition remains under consideration in the Scottish Parliament.

Deep controversy still surrounds the whole circumstances behind the investigation of the Lockerbie bombing and the conviction of Abdelbaset Ali Mohmed al-Megrahi and until fully resolved this tragedy will continue to cast a shadow over the Scottish justice system nationally and internationally.

We greatly value the Justice Committee’s continuing scrutiny and political oversight, which we believe is very much in the public interest, and we would respectfully urge the Committee to allow Petition PE1370 to remain on the table.

Tuesday, 23 February 2021

From Lockerbie to the downing of Flight PS752

[This is the headline over an article by Dr Mohammed al-Sulami, head of the International Institute for Iranian Studies (Rasanah), that was published yesterday on the website of the Saudi Arabian newspaper Arab News. The following are excerpts:]

On Jan 8, 2020, Iran’s air defense system was on high alert after the military launched a barrage of missiles targeting Iraqi bases housing US troops. Iran feared US retaliation. A year later, there has been no proof of any foreign intrusion into its airspace at the time when two TOR rockets pierced the fuselage of Ukraine International Airlines Flight PS752. After initial denials, Iran admitted that the aircraft was shot down “mistakenly.”

If the downing was a mistake, then it exposes the unprofessionalism and recklessness of the Islamic Revolutionary Guard Corps (IRGC). However, there are other interpretations of the incident, linking it to a deliberate and calculated Iranian act intended to pin the blame on rival powers. But thanks to the almost immediate viral photographs and videos on social media, the IRGC had no room to blame hostile foreign forces.

Some 13 months later, a leaked audio of Iranian Foreign Minister Javad Zarif talking about the downing of Flight PS752 has stirred controversy inside Iran and abroad. In it, he can be heard saying that the incident was accidental, but later he says it is possible that two or three “infiltrators” deliberately downed the plane. In addition, he says a full investigation was not carried out and the truth of what happened will never be revealed by Iran’s Armed Forces and top leadership. He does not implicate his own government for hiding the facts, but seems to be scapegoating others by blaming “infiltrators” without providing details. Either way, Iran violated certain provisions of the 1944 Chicago Convention on International Civil Aviation and of the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation.

Iran had accused the US of doing the same in July 1988, when Iran Air Flight IR655 was shot down over the Arabian Gulf, killing all 290 people on board. Though the US agreed to pay Iran $131.8 million in compensation in February 1996, some mysteries still exist.

Five months after the tragic downing of the Iran Air flight, Pan Am flight PA103 exploded at 31,000 feet, with its debris scattering across an area of more than 2,000 sq km along the English-Scottish border. The crash over Lockerbie claimed 270 lives. Finding evidence for what caused the deadly blast that ripped the plane apart was comparable to searching for a needle in a haystack, but aviation experts termed it a terrorist act. The media then recalled Iran’s threat to retaliate for the downing of Flight IR655.

Years later, however, Libyan citizen Abdelbaset Ali Mohammed Al-Megrahi was convicted for causing PA103’s deadly end. He pleaded his innocence until his death in 2012. Owing to foreign pressure and political expediency, Libyan President Muammar Qaddafi admitted his country’s role in the bombing. [RB: Libya accepted responsibility for the acts of the official who had been convicted at the Zeist trial. It did not admit anything other than that.] Among others, the late Nelson Mandela, himself a lawyer, had cast doubt on the prosecution’s case and the resulting verdict. Three decades later, the Scottish courts admitted Al-Megrahi’s family’s plea for a third appeal, only to reject it on Jan 15.

If, as some claim, Libya did not down the Pan Am flight, then who did? The most obvious suspect since December 1988 has been Ahmed Jibril, head of a Palestinian-Syrian terrorist group — the Popular Front for the Liberation of Palestine-General Command — whose ties to Iran were no secret. Jibril, said to be living in Damascus, was allegedly paid ... for avenging the downing of Flight IR655. At the time, the George H W Bush administration preferred not to blame Syria or Iran as it was preparing to attack Iraq in 1991 and needed their support. It was also seeking to free some hostages. Hence, Libya was blamed via al-Megrahi.

Wednesday, 17 February 2021

The Lockerbie Bombing: A Father’s Search for Justice

[What follows is from 2021 Preview: History and Current Affairs on the website of Scottish publishers Birlinn:]

The Lockerbie Bombing: A Father’s Search for Justice, Jim Swire and Peter Biddulph (May)

The destruction of Pan Am Flight 103 over the Scottish town of Lockerbie in December 1988 was the largest attack on Britain since World War Two. 259 passengers and 11 townsfolk of Lockerbie were murdered. Libyan Abdelbaset al-Megrahi was convicted of the crime. He maintained his innocence until his death in 2012. Among the passengers was Flora, beloved daughter of Dr Jim Swire. Jim accepted American claims that Libya was responsible, but during the Lockerbie trial he began to distrust key witnesses and supposed firm evidence. Since then it has been revealed that the USA paid millions of dollars to two central identification witnesses, and the only forensic evidence central to the prosecution has been discredited. The book takes us along Dr Swire’s journey as his initial grief and loss becomes a campaign to uncover the truth behind not only a personal tragedy but one of the modern world’s most shocking events.

Saturday, 13 February 2021

"A spectacular miscarriage of justice”

[What follows is excerpted from a column by Stephen Blease headlined Denial and conspiracy theories need to meet defiance published today on the website of Cumbrian Newspapers Group's title the News & Star:] 

Piers Corbyn is a meteorologist and notorious climate change denier, and it seems he has now emerged as an equally outspoken vaccination denier. He is behind leaflets distributed in London that liken the anti-coronavirus vaccination campaign to the Nazi concentration camps. (...) 

Now I don’t say that no-one should be allowed to defy the conventional wisdom, nor that all conspiracy theories are baseless. We should be allowed to question everything we’re told. 

For instance I happen to think that Abdelbaset al-Megrahi, the man accused of the Lockerbie bombing, was the victim of a conspiracy himself, and was innocent. Dr Jim Swire, whose daughter Flora was one of the 270 people killed, doesn’t think Libya was even involved, and Hans Koechler, an observer at the trial, called al-Megrahi’s treatment “a spectacular miscarriage of justice”. 

The only witness who linked al-Megrahi to the incident was a Maltese shopkeeper who was later found to have been paid to testify against him. Many of those who have looked at it closely agree that al-Megrahi didn’t do it. 

But where events are shocking or unexpected or cause anxiety or just bafflement, conspiracy theories always thrive, as people feel a need for explanations.

Tuesday, 2 February 2021

Application for leave to appeal to Supreme Court lodged

On 29 January 2021 the lawyers for the Megrahi family lodged with the High Court of Justiciary an application for leave to appeal to the Supreme Court. They have until 8 February to lodge written submissions supporting these grounds. The Crown and the Advocate General for Scotland (representing the UK Government) then have until 22 February to lodge their responses in writing. The High Court may consider the matter based on written arguments, or it may call for a hearing. If the High Court refuses permission to appeal to the Supreme Court, the appellants can ask the Supreme Court itself to agree to consider the appeal.

In Scottish criminal appeal cases the UK Supreme Court cannot simply overturn a decision of the Scottish court; it only has jurisdiction to decide whether there might have been a breach of the appellant's rights under the European Convention on Human Rights. A decision that there had been such a breach would not by itself overturn the conviction but would result in the case being sent back to the Scottish court for it to consider the issue and apply the right test under the European Convention, which might or might not result in a different decision being reached in relation to the conviction. 

Permission to appeal to the Supreme Court will be granted only if the case raises an arguable point of law of general public importance which ought to be considered  by the Supreme Court. 

The grounds of appeal which the Megrahi legal team wish the Supreme Court to consider can be summarised as follows: 

1. The decision of the High Court not to allow all of the original grounds of appeal to form part of the appeal for the reasons it gave was in breach of Article 6 of the ECHR, the right to a fair trial. In August 2020 the High Court limited the grounds of appeal to the matters referred by the SCCRC in their 2020 referral (unreasonable verdict and non-disclosure of material relating to rewards and identification evidence) and also allowed in the issue of disclosure of the cables relating to the Crown witness Majid Giaka. The court expressly rejected the ground of appeal which argued that there was a systemic failure by the Crown to disclose material and also the particular instances of non-disclosure which the appellants argued demonstrated this systemic failure. The appellants contend that this is a matter which must be considered by the Supreme Court as it relates to the application of Article 6 and was wrongly decided. 

2. The decision of the High Court not to overturn the Public Interest Immunity Certificate and order disclosure of the Protectively Marked Documents, and not to allow the non-disclosure of the documents to form a ground of appeal, also constituted a breach of Article 6. The appellants submit that these documents related to the special defence of incrimination put forward at trial and so in order for the appellant to receive a fair trial they should have been disclosed, and that this should have formed part of the grounds of appeal the court allowed to be argued.

3. As regards matters which did form part of the appeal and were argued at the full appeal hearing, the appellants' position is that the High Court erred in its decision to refuse Ground of Appeal 2, which related to non-disclosure of rewards material and non-disclosure of documents relating to Crown witness Tony Gauci’s identification evidence. They contend that the court applied the appropriate test wrongly and too narrowly and therefore breached the appellant’s right to a fair trial. In relation to Ground of Appeal 1, unreasonable verdict, they submit that the High Court’s decision to refuse this ground of appeal was also wrong, in that they took into account evidence which the trial court had ruled out, namely the evidence of the former co-accused Fhimah’s diaries. They contend that the High Court erred in substituting its own assessment of whether the diaries were admissible, as this meant they were not considering the case on the same evidence as the trial court did; and by so doing the appeal court has not returned a reasoned judgment on the verdict of the trial court and therefore again the appellant’s article 6 right has been breached.

The Megrahi legal team conclude by submitting that all three points raised are of general public importance and therefore meet the test for an application to appeal to the Supreme Court.

Sunday, 31 January 2021

Lockerbie trial 'catastrophic' for Scottish justice

[This is the headline over a report in today's edition of Scotland on Sunday. It reads as follows:]

The trial of the only man ever convicted of the Lockerbie bombing has had a “catastrophic” effect on the Scottish criminal justice system, with the damage intensified by authorities’ “continuing avoidance” of a reexamination of the entirety of the evidence, according to the father of one of the victims.

Dr Jim Swire, whose daughter, Flora, died in the atrocity, said that steps were required to ensure the better administration of justice of Scotland, but warned that such an overhaul would “have to be propelled by a force outwith Scotland.”

Today marks the twentieth anniversary of the conviction of the late Abdelbaset al-Megrahi, who was found guilty of mass murder unanimously at a specially-convened Scottish court in the Netherlands.

Two weeks ago, judges at the Court of Criminal Appeal rejected a third appeal on behalf of the Libyan national, who died in 2012.

However, his family and numerous campaigners, Swire included, have long maintained he was the victim of a miscarriage of justice.

Now, Swire has told Scotland on Sunday that the biggest mass murder trial in British history continues to cast a long shadow over Scotland’s judiciary.

Swire sat throughout the trial at Camp Zeist, and collapsed in court after the verdict was read out. It was held before three Scottish judges - Lord Sutherland, Lord Coulsfield and Lord MacLean - with no jury. The trial’s architect, Professor Robert Black QC, initially proposed it should have involved an international panel of judges, presided over and chaired by a Scottish judge.

Asked if he thought Megrahi would have been convicted on the evidence presented under such an arrangement, Swire said: “Answers about questions based on ‘what if’ carry little weight, but from what I know now, this would seem to have been a far safer solution than that allowed at Zeist.

“Nelson Mandela himself warned me that ‘No one country should be complainant, prosecutor, and judge’. History, to my sorrow, has proved him right, for Scotland became all three at Zeist.”

Swire, now 84, said the past two decades had been “torturous,” and accused the Crown Office and “certain leaders” in Scotland’s legal profession of following a “readily visible course” based on the premise that the Netherlands court was infallible.

“Appeals have managed to avoid or ignore many of the aspects of the Zeist evidence in which failures are self evident, and have never fully addressed some of the further pieces of evidence which have emerged since,” he added.

“From a layman’s point of view, this seems to have been skilfully achieved. If I were asked to answer, ‘Why would they do that?’, I would have to reply that the impression given to me a layman is that they wish to conceal the profound failings within their system and its dangerous opacity to criticism, in order that damage to its reputation shall be minimised.”

Asked to respond to Swire’s criticisms, a Crown Office spokesman said: “The conviction of Abdelbaset al-Megrahi for the murder of 270 people at Lockerbie in 1988 has been reviewed and appealed twice in accordance with the law over twenty years.

“His conviction stands and the investigation by Scottish prosecutors and police officers into the involvement of others with him in the plot to attack an American aircraft continues.”

Saturday, 30 January 2021

"Independent" Lockerbie commentator "instructed and paid by Iran"

[What follows is excerpted from a report in today's edition of The Scotsman headlined Academic who defended Tehran against Lockerbie allegations accused of secretly working for Iranian government:]

Authorities in the US allege Kaveh Afrasiabi, a political scientist and veteran commentator on Iranian issues, of acting and conspiring to act as an unregistered agent of the Iranian state for more than a decade, during which time he made media appearances rejecting any suggestions that Iran was involved in the 1988 atrocity.

A complaint filed against Afrasiabi in a federal court in New York alleges that he was instructed over what to say to journalists by Iranian government officials assigned to the country’s permanent mission to the United Nations, before advocating positions and policies “favoured” by Iran.

The interviews included Afrasiabi’s views on a 2014 Al Jazeera documentary, entitled ‘Lockerbie: What Really Happened?’, which claimed the bombing was ordered by Iran and carried out by the Syrian-based terror group, the Popular Front for the Liberation of Palestine-General Command.

The documentary, which was subsequently screened in the Scottish Parliament, included testimony from Abolghasem Mesbahi, a former high-ranking Iranian intelligence agent, who said Iran had sanctioned the attack in revenge for the destruction in July 1988 of an Iranian airbus mistakenly shot down by USS Vincennes.

Afrasiabi, a former visiting scholar at Harvard University, went on to appear on an Al Jazeera interview, refuting the documentary’s premise. However, the complaint against him alleges he was advised on what to say by a press secretary at the Iranian mission, and told to state that he was giving his views as an “independent expert.”

During a phone call with the Iranian official on 11 March 2014, the complaint goes on, Afrasiabi was instructed “in sum and substance to explain that both the US and Britain completed their investigations” into the incident.

It also alleges that the day after the interview, Afrasiabi advised the Iranian government to threaten a $500 million lawsuit against Al Jazeera,” stating that it “would act as a brake on their current plan and might put a stop.” He added: “Soft diplomacy does not answer this specific situation.”

Afrasiabi also sent Al Jazeera an article prepared by his Iranian government contacts refuting the documentary’s claims, according to the complaint.

It adds that since 2007, Afrasiabi has “surreptitiously derived a significant portion of his income from compensation for services performed at the direction and under the control of the government of the Islamic republic of Iran,” claiming he received more than $265,000 over the period, as well as health insurance benefits.

The complaint also alleges Afrasiabi contacted an official in the US State Department, asking for its “latest thinking” on the Iran nuclear issue, without revealing the nature of his relationship with Iranian authorities.

Afrasiabi has described the allegations against him as “lies,” while Iran’s foreign ministry said the accusations were “baseless,” and accused the US of “a clear hostage-taking of Iranian nationals.”

Wednesday, 20 January 2021

The house of cards that is the legal frame-up of Megrahi

[What follows is taken from an article by Steve James published today on the WSWS.org website:]

Five Scottish judges have upheld the 2001 verdict against Abdelbaset Ali Mohmed Al Megrahi, the only person convicted for the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland, which killed 270 people.

Last week's decision is the second time an appeal on Megrahi's behalf has been rejected by the courts amid the continued suppression of contradictory evidence.

In 2002, an initial appeal was thrown out. In 2009, Megrahi, already terminally ill, was tacitly offered release from Greenock prison on compassionate grounds if a contemporary appeal was dropped as part of rapprochement between the Libyan and British governments. The most recent appeal was launched by Megrahi's son, Ali Al-Megrahi, to clear his father's name posthumously.

The appeal hearing heard from Claire Mitchell QC that Megrahi's original conviction hinged on Maltese shopkeeper Tony Gauci’s uncorroborated identification of Megrahi. She pointed to contradictions in Gauci’s testimony and challenged the trial judges' decision that the clothing was purchased on 7 December 1988, rather than 23 November, which was supported by the evidence. Megrahi was not in Malta in November.

Mitchell noted that while the trial verdict "cherry picked" items from a mass of conflicting evidence, no evidence existed that the bomb started its journey from Malta.

The appeal was allowed to go forward following a decision by the Scottish Criminal Cases Review Commission (SCCRC), that a miscarriage of justice may only have occurred because of the manner in which Megrahi was identified by Gauci. Gauci first identified someone else, appeared confused, and was found to have been coached by police in expectation of a huge reward. $2 million was duly paid, a matter about which the trial defence was not informed.

The SCCRC did not consider (...) analysis of the metallurgical characteristics of the alleged bomb timer--proving it was not part of a batch sold to Libya--or devastating evidence of the bomb suitcase entering the luggage system at Heathrow Airport, London, as grounds for appeal.

The reason for the appeal being restricted to Megrahi's identification by Gauci is increasingly clear. Any broader querying of the original verdict threatens to bring down the house of cards that is the legal frame-up of Megrahi.

It is worth recalling some of the contradictions and unconfirmed assertions in the official version of events leading to PA103's destruction, upheld at the 2001 trial and again on two subsequent appeals.

Megrahi was found guilty of loading a suitcase, containing a bomb armed with a complex electronic timer, in Luqa airport, Malta, onto a flight to Frankfurt, Germany. No viable evidence has been presented confirming that such a suitcase existed. No explanation has been given of how Megrahi overcame Luqa's tight security. (...) No explanation has been offered of how Frankfurt airport's X-ray scanning missed a bomb in a cassette recorder when staff had been advised to look out for one.

From Frankfurt, the feeder flight travelled to London’s Heathrow airport, where the bomb was allegedly transferred to Pan Am 103. No such suitcase has been identified.

Not accounted for is the fact that a suitcase closely resembling the one containing the bomb appeared unexpectedly at Heathrow airport before the feeder flight from Frankfurt arrived and was reportedly inserted onto PA103 at Heathrow.

This suitcase was seen by witnesses on the floor of the luggage container in which the explosion later occurred. No explanation or significance has been attached to a break in at Heathrow airport, where security was poor, the night before, adjacent to the luggage loading area for PA103.

The explosion that destroyed the Boeing 747 took place 38 minutes after take-off from Heathrow. This is exactly the time at which a well-known design of barometric bomb, triggered by a fall in air pressure, would explode had one been loaded at Heathrow.

Barometric bombs of this design were, at the time, being manufactured in Germany by a Syrian backed Palestinian group the Popular Front for the Liberation of Palestine-General Command (PFLP-GC), a group with a history of aircraft bombing. Four of these bombs were seized by German police, a fifth went missing for unexplained reasons.

No explanation has been offered of why the stated design of electronic timer, an MST-13 manufactured by Swiss company MeBo-AG, would not be set to explode at a time much later, over the Atlantic, where any evidence would sink to the ocean floor.

Nor has an explanation been offered as to why evidence relating to the belated appearance of a fragment of MST-13 timer in the Lockerbie wreckage showed evidence of having been doctored, as had the records relating to its discovery. Or why this timer fragment has subsequently been proved NOT to be part of a consignment of timers admittedly sold to Libya by Mebo-AG.

Days before the appeal hearing, the judges ruled that documentation in the possession of the British government since shortly after PA103 was brought down should remain hidden, upholding a public interest immunity certificate signed by Foreign Secretary Dominic Raab in August this year. One of Raab's predecessors, Labour's David Miliband, signed a similar order in 2008 before Megrahi's previous appeal was dropped.

Carloway upheld Raab's view that the documentation was relevant but revealing it would "damage counter-terrorism liaison and intelligence gathering between the UK and other states".

The documentation is reportedly a letter from then Jordanian ruler, King Hussein, an ally of the Western powers and a CIA asset, implicating Jordanian intelligence agent and PFLP-GC supporter Marween Khreesat in making the bomb. King Hussein claimed the attack was revenge commissioned by the Iranian government for the US Vincennes' shoot-down of an Iran Airbus at the cost of 255 lives in July 1988. Khreesat was arrested as part of the group that was making bombs in Germany in 1988, but was quickly released. He died in Syria in 2016.

Another remarkable intervention on the eve of the appeal, which coincided with the December 21 anniversary of the disaster, came from outgoing US Justice Secretary William Barr.

Barr announced charges against the hitherto little-known Libyan, Abu Agela Mas’ud Kheir Al-Marimi (Masud), whom Barr accused of helping Megrahi make the bomb used in the attack and whose extradition to the US is now being sought. Barr claimed the then-Libyan leader Colonel Muammar Gaddafi personally thanked Masud for his efforts. Masud has been held in a Libyan jail since 2012. Gaddafi's government was violently overthrown by the US and European war machine, and Libya pitched into a catastrophic and ongoing civil war in 2011, but this claim of involvement only surfaced years later.

Barr has a history with the Lockerbie case. Prior to his installation by Donald Trump in 2019, he was known for a series of cover-ups arising from his first period as US Attorney General, between 1991 and 1993, during George H W Bush's term as US President, arising from the successive debacles of US foreign policy in the Middle East.

It was on Barr's watch that Bush handed out pardons to senior state officials involved in the Iran-Contra scandal of the 1980s, including former defence secretary Caspar Weinburger, who had been charged with crimes of perjury, lying to Congress and obstruction of justice.

Barr oversaw a fundamental shift in the focus of investigation into the destruction of Pan Am Flight 103 from the PFLP-GC and Iran to Libya, and announced the November 14, 1991 indictments against Megrahi, and his then co-accused, Al Amin Khalifa Fhimah.

The transition took place during US preparations for the assault on Iraq in the first Gulf War, launched earlier in 1991. Prior to the war, US officials shuttled around the various Arab regimes in the Middle East seeking support and acquiescence in the planned bloodbath. Then Secretary of State James Baker visited Syria repeatedly and extracted regime support for the assault on neighbouring Iraq. Iran remained neutral.

Speaking of Lockerbie when the war was over and days after the unexpected indictment of the two Libyans, Bush said, "A lot of people thought it was the Syrians. The Syrians took a bum rap on this."

None of this mattered to the Scottish judges. Instead, the 64-page verdict sought to strengthen the case against Megrahi by attributing sinister significance to entries in co-accused Fhimah's diary referring to "luggage tags". Fhimah, however, was acquitted in the original 2001 trial. Both men worked at the airport.

Speaking outside the court, lawyer Aamer Anwar said Megrahi's family were heartbroken by the verdict and intend to take the case to the UK Supreme Court. Jim Swire, 84, whose daughter Flora died in the disaster said, "For a long time I have been persuaded that it isn’t likely the truth will come out during my time left on the planet."

[RB: Another recent article can be read here: Lockerbie 32 years on: imperialism, framings and cover-ups.]

Saturday, 16 January 2021

System cannot admit it made mistake with Lockerbie

[Yesterday's decision by the High Court of Justiciary dismissing the posthumous appeal on behalf of Abdelbaset Megrahi receives extensive coverage in UK and overseas media. A selection, courtesy of Google News, can be found here

What follows is excerpted from reports by Mike Wade here and here on the website of The Times:]

An attempt by the family of the only man convicted of the 1988 Lockerbie bombing posthumously to clear his name has been rejected by the Court of Criminal Appeal in Scotland.

The family of Abdul Ali Baset al-Megrahi had appealed his conviction after a ruling by the Scottish Criminal Cases Review Commission (SCCRC) that “it was in the interests of justice” that his case was reconsidered.

Mr Anwar said that Ali al-Megrahi, the convicted man’s son, said that his family had been “left heartbroken by the decision of the Scottish courts, (but) maintained his father’s innocence and is determined to fulfil the promise he made to clear his name and that of Libya”.

The family has instructed its legal team to appeal to the UK Supreme Court and an application will be lodged within two weeks. (...)

Megrahi previously lost an appeal against his conviction in 2002. Five years later the SCCRC recommended that he should be granted the second appeal, which he later dropped.

Al-Megrahi insisted in his authorised biography, published in the year of his death, that a Scottish government decision to agree his early release from prison was conditional on his decision to drop his second appeal.

He said that Kenny MacAskill, who was then the Scottish justice secretary, had suggested the deal to a Libyan government official.

In the latest appeal the court was not asked by the SCCRC to consider a tiny fragment of circuit board, believed to have been from the bomb’s timer. This, campaigners insist, was a key piece of evidence that could have cleared al-Megrahi’s name.

After this morning’s decision the al-Megrahi family demanded the release of secret evidence held by the UK government that they believe incriminates others such as Iran and a Syrian-Palestinian group. (...)

In December, on the 32nd anniversary of the bombing, William Barr, the US attorney-general, announced new criminal charges against an alleged bombmaker involved in the atrocity.

Abu Agila Masud, another former Libyan intelligence officer, allegedly admitted to assembling the bomb that blew up the plane as it passed over Lockerbie en route from London to New York. Masud was the third person to face charges in the attack after al-Megrahi and another Libyan, Lamin Khalifa Fhimah, were charged nearly 30 years ago. Fhimah was found not guilty in 2001.

It was Mr Barr who announced the charges against al-Megrahi and Fhimah in 1991, saying at the time: “This investigation is by no means over.” Al-Megrahi’s supporters claim that Mr Barr’s recent intervention weighed heavily on the appeal court judges.

A source said: “For the judges to overturn the conviction would be absolutely momentous and I don’t think they have the stomach for that. William Barr piled on the pressure by announcing new indictments. It was too much of a hot potato for them.”

Mr Anwar said the first ground for appeal — that “no reasonable jury properly directed could have convicted” — was built largely around the evidence of Tony Gauci, who died in 2016.

In the 2001 trial, Mr Gauci, a Maltese shopkeeper, identified al-Megrahi as the man who bought clothes from him that were later packed in a suitcase containing the bomb. After the trial it was disclosed that he had received $2 million from the US authorities.

In his judgment Lord Carloway said the original trial had given due consideration to Mr Gauci’s identification.

Mr Anwar said the second ground of appeal — the failure to disclose information to the defence — hinged on a “compatibility issue” arising from a question relating to a breach of human rights. This will be the basis for the application to the Supreme Court.

[A further article in The Times, headlined System cannot admit it made mistake with Lockerbie, says lawyer who designed first trial contains the following:]

The Scottish court system is unable to acknowledge that a mistake has been made, the lawyer who designed the 2001 Lockerbie trial has said.

Robert Black, emeritus professor of Scots Law at the University of Edinburgh, drew up plans to enable a Scottish court to sit on neutral territory in the Netherlands but when the trial ended he was convinced that he had witnessed a miscarriage of justice.

He said yesterday that the Scottish criminal justice system was unable to acknowledge “a mistake has been made” in the conviction of Abdul Baset al-Megrahi and it was “a matter of grave concern” that the most recent appeal had been so narrowly restricted to certain legal areas. The Scottish Criminal Case Review Committee allowed al-Megrahi’s posthumous appeal on only two grounds: that the verdict had been unreasonable and that some evidence had not been disclosed to the defence.

Four other grounds for appeal were rejected by the committee, including evidence about a fragment from a circuit board and a theory that the suitcase that contained the bomb had not been loaded onto an aircraft in Malta.

The Crown argued that the circuit board, part of a timing device, was one of many sold to the Libyan government by Mebo, a Swiss company. It was found in the remains of a shirt collar, which in turn led to a shop in Malta owned by Tony Gauci. Campaigners for al-Megrahi say forensic analysis has shown the circuit board was coated in pure tin and not in a tin-lead alloy, the only kind supplied by Mebo. Independent scientists, consulted by the Crown, had noticed the difference but maintained the tin fragment and the tin-lead amalgam were “similar in all respects”.

Professor Black also cited evidence the bomb suitcase was put on at Heathrow before luggage from Malta arrived.

Friday, 15 January 2021

Megrahi appeal dismissed

The High Court has dismissed the posthumous appeal brought on behalf of Abdelbaset Megrahi. The 64-page opinion of the court can be read here. [RB: In the version originally issued, the date of the disaster was stated by the court to be 22 December 1988, the same blunder as was made in the trial court's judgement. This has since been corrected to 21 December. Careless.] A summary can be found here

As regards the first ground of appeal, the court concludes in paragraph 87 that, notwithstanding evidence challenging 7 December 1988 as the date of purchase of the items from Tony Gauci's shop, and notwithstanding concerns about the evidence supporting Gauci's "identification" of Megrahi, "... the contention that the trial court reached a verdict that no reasonable court could have reached is rejected. On the evidence at trial, a reasonable jury, properly directed, would have been entitled to return a guilty verdict."

As regards the ground of appeal founding upon failure by the Crown to disclose material that would have been helpful to the defence the court concludes that even if the material had been disclosed it would not have made a difference to the guilty verdict. Paragraph 135 of the opinion reads: "The contention that the Crown failed to disclose material which would have created a real prospect of a different verdict is rejected."

The outcome of the appeal is a cogent illustration of just how difficult it is to have the Scottish criminal justice system acknowledge that a mistake has been made, as I continue to believe has happened here. It is, I contend, a matter of grave public concern, that the appeal was so narrowly confined and that issues such as the metallurgy of the circuit board fragment and Dr Morag Kerr's findings regarding the loading of the bomb suitcase at Heathrow were not ventilated.

The Herald's report on the dismissal of the appeal contains the following statement from the Megrahi family's solicitor, Aamer Anwar:

"Ali Al-Megrahi the son of the only man convicted of the Lockerbie bombing said his family were left heart broken by the decision of the Scottish courts, he maintained his father’s innocence and is determined to fulfil the promise he made to clear his name and that of Libya.

"As of this morning the Megrahi family have instructed our legal team to appeal to the UK Supreme Court [and] we will lodge an application within 14 days.

"The family demand the release of secret evidence held by the UK Government, which they believe incriminates others such as Iran and the Syrian-Palestinian group, the Foreign Secretary had refused to do so, this must happen for the truth to emerge."

[What follows is excerpted from a press release issued today by Aamer Anwar:]

Significant material has been received by the Legal team over the last several months, but especially since the announcement by Donald Trump’s former Attorney General William Barr on 21 December 2020, where he stated that the USA wished to extradite a former Libyan Intelligence Officer, Abu Agila Mohammad Masud for the Lockerbie bombing, 32 years later.

Masud’s confession to being involved in the conspiracy with Al-Megrahi to blow up Pan Am Flight 103, was supposedly ‘extracted’ by a ‘Libyan law enforcement agent’ in 2012, whilst in custody in a Libyan Prison. No new information appeared to be presented by Attorney General Barr.

What was significant in the US criminal complaint against Masud was his claim that he bought the clothes to put into the Samsonite suitcase that is claimed went on to blow up Pan Am Flight 103.

Of course, the problem for the US Department of Justice is that the case against Megrahi is still based on the eye-witness testimony of Toni Gauci stating that Megrahi bought the clothes. How can both men be held responsible?

The al-Megrahi family believe that if the conviction against their father were to be overturned then the US case against Masud would be non-existent.

Undoubtedly there will now be huge pressure on Libya and the GNA, the Government of National Accord based in Tripoli to extradite Abu Agila Masud to the US, but of course the American authorities will be also aware that if the Megrahi’s were to be successful at the Supreme Court, then so called case against Abu Masud would crumble. 

A reversal of the verdict would have meant that the governments of the United States and the United Kingdom stand exposed as having lived a monumental lie for 32 years, imprisoning a man they knew to be innocent and punishing the Libyan people for a crime which they did not commit.

All the Megrahi family want for Scotland is peace and justice, but as Ali stated today their journey is not over, Libya has suffered enough, as has family for the crime of Lockerbie, they remain determined to fight for justice.

They are grateful to their legal team for their unwavering commitment and also to the British families for their compassion and search for justice.

Ali said God willing, he will visit his father's grave one day to tell him that justice was done and that he fulfilled his promise to clear his name and that of Libya.

In this appeal the legal arguments related to two distinct challenges to the conviction. The first was that it was contended that no reasonable jury properly directed could have convicted Mr Megrahi on the evidence led, focusing in particular on the evidence of Maltese shopkeeper Tony Gauci stating that Megrahi bought clothes from him that were ultimately placed into a suitcase containing the bomb planted on the plane.

The second ground was that the failure to disclose information to the defence, led to the trial being unfair and thus a miscarriage of justice, these related to the reliability of Mr Gauci’s identification of Megrahi as the person who bought the clothes, as well as the content of CIA cables.  

In relation to the second ground of appeal, the failure to disclose information to the defence, the decision of the Appeal Court is the determination of a “compatibility issue” – an issue arising from a question relating to the breach of human rights, in this case article 6 the right to a fair trial.   

Where the Appeal Court in Scotland determines a compatibility issue, it is competent to seek leave to appeal from the Appeal Court of the determination of that issue to the UK Supreme Court in London.  If leave to appeal by the Scottish courts is refused, it is competent to seek leave to appeal directly from the Supreme Court in London. 

... the Megrahi family have instructed us to make an application to the UK Supreme Court.  We must now lodge an application within 14 days. Today’s decision will be carefully considered and intimated to the Crown and the UK Advocate General and lodged with the Justiciary Clerk with 14 days of the opinion of the court which is dated 15th January  2021.

The Justiciary Clerk will then ask for written submissions.  The Crown is allowed to lodge  submissions to object. Written submissions are always required even if there is an oral hearing.  It may be that the court will advise that the matter will be considered on paper submissions only. 

The time for a decision on that application is difficult to estimate, however we would expect the al-Megrahi case to progress relatively quickly and no longer than 2-3 months.

When the decision of the High Court of Justiciary is known - if it is an adverse decision then within 28 days an application for 'permission to appeal' can be lodged with the UKSC Registrar to directly appeal to the Supreme Court. One would hope that if such a process were followed then the appeal would be heard before the end of 2021.

Thursday, 14 January 2021

Megrahi appeal decision to be delivered on Friday 15 January

[What follows is the text of a press release issued by Aamer Anwar & Co:]

On Friday 15th January at 09.30 GMT the opinion of the Scottish Appeal Court will be issued to the family as delivered by Lord Carloway, The Lord Justice General in the appeal against conviction by the representative of The Late Abdelbaset Ali Mohmed Al Megrahi (Appellant) against Her Majesty’s Advocate (Respondent).

The non-appearance advising will be available online (https://www.scotcourts.gov.uk/search-judgments/high-court) at 12 noon.

A full statement at 10.00 GMT will be issued on behalf of the family of the late Abdelbaset Al-Megrahi by their lawyer Aamer Anwar, embargoed until 12 noon GMT.

Should you require to carry out an interview, Mr Anwar will be available in Glasgow for face to face interviews (Covid compliant) from 11am onwards or alternatively should you require a zoom, facetime or radio interview please contact our office on 0141 429 7090.

BACKGROUND NOTES:

https://www.nytimes.com/2020/11/24/world/europe/lockerbie-bombing-megrahi-appeal-scotland.html

https://www.aljazeera.com/news/2020/11/24/lockerbie-bomber-appeal-begins-at-scotlands-high-court

https://www.theguardian.com/uk-news/2020/nov/24/lockerbie-bombing-facts-cherrypicked-to-convict-megrahi-court-told

https://www.arabnews.com/node/1767706/world

https://www.bbc.co.uk/news/world-us-canada-55399551

https://www.thenational.scot/news/18953301.lockerbie-appeal-lawyer-raises-questions-timing-us-suspect-announcement/ 

Sunday, 10 January 2021

Private Eye on the Masud charges

[What follows is the text of an article that appears in the latest edition of Private Eye:]

Late charges 

The parting shot by US attorney-general William Barr just before Christmas that another Libyan, Abu Agila Masud, was to be charged over the Lockerbie bombing will have delighted Scotland's prosecutors. The Crown Office is nervously awaiting the outcome of a posthumous appeal against the copviction of Abdelbaset al-Megrahi, the only man convicted of the 1988 atrocity, which killed 270 people. 

The case against Megrahi was always riddled with holes, and since his 2001 conviction more evidence - some withheld from his trial - has emerged to cast further doubt (Eyes passim). Last March the Scottish Criminal Cases Review Commission referred his case back to the appeal court on the basis that no reasonable court could have reached a guilty verdict "beyond all reasonable doubt" and significant non-disclosure of evidence. 

Both grounds related to the damning evidence of the key prosecution witness, Maltese shopkeeper Tony Gauci, who said Megrahi resembled a man who bought the clothes found wrapped around the bomb. It subsequently emerged that Gauci was paid $2m by the US Department of Justice (DoJ). But other troubling evidence was excluded from the appeal. That included forensic material suggesting that a circuit board fragment found at the scene could not have originated from the batch of timers said to incriminate Libya and Megrahi, and new evidence indicating that the bomb almost certainly originated from Heathrow rather than Malta (adding to the fact of a break-in at Heathrow the night before the flight).  

Masud, the third Libyan to be charged (Lamin Fhimah who stood trial alongside Megrahi, was acquitted), is now said to be the Lockerbie bombmaker. He is also alleged to have made the bomb for the 1986 La Belle Disco attack in Berlin, which killed two US servicemen and a Turkish woman.  

The new charges are based on an investigation by American film-maker Ken Dornstein,  who lost his brother m the Lockerbie bombing, and on an affidavit by an FBI agent, which describes a confession allegedly made by Masud to "a Libyan law enforcement officer". That "confession" names Megrahi, a fellow intelligence officer, as a co-conspirator. It dates from 2012, when Masud was in prison awaiting trial for making booby-trapped bombs for use against opponents of the Gaddafi regime, which fell in 2011. As it came during a time of revenge and score-settling, key questions will be what side the Libyan law officer was on and under what circumstances the confession was made. 

US prosecutors might also seek to rely on a key witness in Dornstein's documentary, Musbah Eter, a Libyan former diplomat who was convicted in 2001 of the La Belle bombing. He claims Masud told him he was involved in Lockerbie. However, as declassified East German Stasi documents revealed, Eter has a credibility problem - not least because he was a CIA "asset" who had never previously claimed any knowledge of Lockerbie. 

Nevertheless, the news has received a guarded welcome by those convinced of Megrahi's innocence. Dr Jim Swire, whose daughter Flora died in the blast, would like any evidence properly tested in open court to try to get to the truth about Lockerbie and what US and UK investigators knew. But he tells the Eye that if the case is linked to Megrahi and Malta it is already fatally flawed. 

The DoJ has been sitting on Masud's damning confession and evidence gathered by Dornstein for years, so why did it wait until last month before charging Masud? Might the answer be, as Swire suggests, that it is Barr's attempt to salvage his own credibility? Or, as those representing Megrahi's family believe, a timely attempt to add to the already considerable pressure on the Scottish appeal judges to uphold the only conviction? 

Monday, 4 January 2021

Crown Office not happy for US to take lead on new Lockerbie trial

[The following article has been contributed by Marcello Mega and expands upon his report in The Mail on Sunday yesterday:]

Scotland will argue that any future trial relating to the Lockerbie bombing should be conducted under Scots Law before Scottish judges. 

Outgoing US Attorney General William Barr appeared to stake his country’s claim by announcing, just before he left office last month, that efforts would be made to extradite and try two more Libyans. 

But well-placed sources in law enforcement have revealed that Lord Advocate James Wolffe QC believes that while both Scotland and the US can claim jurisdiction as both countries lost many citizens, Scotland has the greater claim. 

Abu Agila Mohammad Masud, allegedly bomb-maker for the late Libyan leader Muammar Gaddafi, and Abdullah al-Senussi, former intelligence chief and Gaddafi’s brother-in-law, are the untried suspects. 

Mr Barr was Attorney General in 1991 when the blame for the Lockerbie bombing, which claimed 270 lives on 21 December 1988, was first shifted from Iran to Libya.  

In virtually his final act in his final stint as Attorney General, he again put the spotlight on Libya, and appeared to presume the US would lead efforts to prosecute either or both of the suspects. 

One source said: “It’s early days but already there have been discussions among senior figures in the Crown Office and the Lord Advocate seems to have arrived at a position where he would not be happy to see the US lead on this. 

“Both countries lost many citizens, but the crime happened over Scottish soil. Primacy has to be decided, but our argument should be the stronger.” 

He added that it was unlikely a Scottish trial would involve a jury and would be more likely to follow the precedent established by the trial of the late Abdelbaset Ali Mohmed Al Megrahi, the only man convicted of the atrocity. 

He and his co-accused, Lamen Khalifa Fhimah, who was acquitted, were tried under Scots law in the Netherlands, a neutral third country, by a panel of three Scottish judges without a jury. 

The source said: “Lockerbie was a unique event in Scottish criminal history, and the extraordinary measures taken were partly out of necessity to persuade the accused they would have a fair trial. 

“If there were to be a second trial, it would be very unlikely that ordinary people would be put under pressure to decide a trial involving international terrorism.” 

He added that only two of Scotland’s current crop of High Court judges had no prior involvement with Lockerbie – five are currently considering a posthumous appeal brought by Megrahi’s family – but more judges could be appointed. 

Robert Black QC, Professor Emeritus of Scots Law at Edinburgh University and the architect of the first trial in a neutral country, said that Libya would be far more likely to co-operate with Scotland than the US. 

He said: “There is no way Libya could be seen to send one or more of its citizens to be tried abroad in a country that has the death penalty. 

“There would also be an absolute certainty among Libyans that America would find a way to convict. 

“We did not cover ourselves in glory with the conduct of Megrahi’s trial, with so much evidence that would have helped his case being withheld from the defence, but I still think Libya is more likely to trust Scotland than the US.” 

Dr Jim Swire, who lost his daughter Flora on Pan Am 103 a day short of her 24th birthday, marked the 32nd anniversary last month by saying he was sick of the ‘charade’ of blaming Libya. 

He said: “I have already written to William Barr warning him that if the US persists on pursuing a second trial against Libya for Lockerbie, he’d be as well building a palace on the slopes of Mount Vesuvius. It will crumble soon enough.” 

He argued that the International Criminal Court would be the only tribunal that could guarantee a fair trial.  

He added: “Any future prosecution certainly should not be in the hands of US prosecutors. The accused would not get a fair trial, and you cannot have that when the death penalty is likely to follow. 

“The prosecution of Megrahi was a disgrace, but at least he was treated humanely and when diagnosed with advanced cancer, he and his family were shown compassion and he was allowed to go home to his loved ones. 

“The Americans would not have allowed that. 

“Scottish and American prosecutors need to stop posturing. None of the evidence they used against Libya stands up to scrutiny, yet they persist when there is a much stronger case against Iran.” 

The Crown Office said it had no comment to make ‘given that the Scottish criminal investigation is ongoing and there is an appeal before the court in relation to this crime’. 

Sunday, 3 January 2021

Embellishing intelligence reporting to fit a preconceived outcome

[What follows is excerpted from an article by John Holt published today in The Blogs section of the website of The Times of Israel:]

As a former CIA operations officer, I am breaking 20 years of silence about one of the most heinous plane bombings on record, Pan Am flight 103 over Lockerbie, Scotland on December 21, 1988. I can now tell you, as I have been telling the CIA and FBI since being interviewed by them in early 2000, that I and many other intelligence officers do not believe that Libya is responsible for the bombing. Iran, as the original evidence clearly showed, is the true perpetrator of this deadly attack and should be brought to justice.

Two weeks ago, just before stepping down as US attorney general, William Barr, who was also AG in 1992 and oversaw the investigation and indictment of the case, announced new charges against a Libyan man known as Masud for supposedly constructing the bomb that detonated on the plane. I believe Barr and the Justice Department announced this new indictment purely for the purpose of shoring up Barr’s original, faulty 1991 indictments.

The evidence and logic in the current case against Mr Masud are as flimsy as the cases were two decades ago when Barr steered focus away from the obvious culprit, Iran.

I know Libya is not behind the bombing because I was the long-time handler for the principal US government witness Abdul Majid Giaka, a Libyan agent who never provided any evidence pointing to Libya or any indication of knowing anything about that nation’s involvement in the two years after the bombing. Yet years later, he testified against the convicted Libyan intelligence officer, Abdel Basset al-Megrahi, at the Lockerbie bombing (Pan Am 103) trial conducted at The Hague in 2000.

The US Government prevented my testimony and hid from evidence the cables I wrote that proved Giaka knew nothing. When my cables were finally released to the trial at the demand of the defense, the court dismissed Giaka along with the two CIA operations officers sent to the trial to testify to his credibility.

Yet today, the charade continues. The FBI acknowledges they have not even interviewed Mr Masud themselves and are entirely dependent on an 8-year-old statement by an unnamed Libyan police officer from a country in the midst of a devastating civil war. Moreover, Masud had no history or signature for making the type of bomb that brought down Pan Am 103 nor for concealing bombs in Toshiba radios. The PFLP-GC (Popular Front for the Liberation of Palestine-General Command) did.

We just observed the 32nd anniversary of the bombing of Pan Am 103. It is time to drop the routine CIA procedure of embellishing intelligence reporting to fit a preconceived outcome rather than following the facts. The families of Pan Am flight 103 victims have suffered long enough and deserve to now be able to rest assured that the real perpetrators of this act of terrorism, Iranian actors, are brought to justice.

I am asking that the case be reexamined due to the availability of evidence against Iran and irregularities in the US government presentation of evidence at the first trial. The son of the man convicted made a similar request. He recently appealed the conviction of his father to the High Court in Scotland. The panel of five judges is currently reviewing the appeal, which was presented in late November 2020.

Now is the time for former Attorney General Barr, who signed the original warrants against Megrahi, and former FBI Director Robert Mueller, who led the DOJ investigation, to answer some questions: If Libya is truly the culprit, why did the US not indict Libyan intelligence chief Sanussi, who has reportedly been sitting in a Libyan jail since that nation’s revolution in 2011, and would have been in charge of any such high profile operation at the time of the bombing? And why was credible evidence pointing toward Iran ignored, given Iran’s clear motive for the attack as retaliation for the downing of a civilian Iran Air Airbus and its proven capacity to carry out attacks similar to the bombing over Lockerbie? (...) 

A second Scottish Lockerbie trial?

The following short piece by Marcello Mega appears in today's Scottish edition of The Mail on Sunday.
 
click on image for increased legibility

I am sceptical about the likelihood of another Scottish Lockerbie trial. In the first place, extradition of the suspects from Libya is highly unlikely. Secondly the evidential value of the alleged confession by Abu Agila Masud to making the bomb is highly questionable. Before relying upon it in support of an indictment and presenting it in evidence to a court the Scottish prosecutors would require to be satisfied (a) that it was in fact made and (b) that it was not obtained through torture or undue pressure or inducement. The cautionary experience of relying at the Zeist trial on a witness -- Majid Giaka -- supplied and vouched for by the US Department of Justice might indicate to the Lord Advocate and the Crown Office the wisdom of proceeding with great circumspection.