Saturday, 31 May 2008

The procedural hearing: a Libyan perspective

Here is the report on the outcome of the procedural hearing which appears on the website of the Libyan Jamahiriya Broadcasting Corporation:

“Scotland's top Judge called on the British government to provide him with two documents related to bombing of the Pan Am plane over the Scottish town of Lockerbie in 1988, which the government says are secret.

“The call came within the Scotland's appeal court to review the previous verdict against the political hostage, the Libyan national Abdel Basset Al-Maghrahi.

“Scotland's top judge Lord Hamilton and two appeal court judges in Edinburgh, said the lawyer representing the British government should produce for the court the documents in question within a week, subject to appropriate security measures.

“He said the judges would consider the documents, which Foreign Secretary David Milliband has declared secret.

“Advocate General, representing the British government in the hearing, conceded that under Scottish law, which is different from the British, the final decision on whether the documents were produced in open court lay with the court of appeal.

“An open session of the appeal court will be held on 17-18 June to review the new documents.”

Libya to resolve claims with US

This is the headline over a report on the BBC News website. After talks held in London between Libya and the United States, a mechanism has been agreed for resolving outstanding compensation claims, including the final payment to the families of the Lockerbie victims. The report reads in part:

"The US and Libya have agreed to work together to resolve compensation claims from the Lockerbie bombing and other 1980s attacks blamed on Libyan agents.

"Libya has already paid out $8m (£4m) to each Lockerbie victim's family but has not made final payments of $2m amid a dispute over America's obligations.

"A US court ruling that Libya should pay billions of dollars to Americans killed by another bomb incensed the Libyans.

"They are hoping for an all-in-one deal to cover that and the other attacks."

ABC News's coverage of the story can be read here and the Daily Express's here.

Friday, 30 May 2008

Newspaper reports on day three of procedural hearing

The Herald has a lengthy report on the third day of the procedural hearing. The last three paragraphs read:

'The Advocate General has put forward a plan for a special security-vetted advocate to be appointed to replace the defence in the hearings which will address the issue of public interest immunity.

'He has also suggested that the special advocate could play a role in the appeal itself, a proposal which was criticised by the defence.

'Margaret Scott QC, for the defence, said: "It is a radical departure and an unprecedented use of special representatives. It involves the improper use of special advocates. The result would be... to deny the appellant to a fair hearing in his appeal."'

The full article can be seen here.

The Scotsman's very short report can be read here.

The mysterious document identified?

In his latest article in OhMyNews International, Dr Ludwig de Braeckeleer says that he is convinced that he has identified the document that is the subject of the UK Government's PII claim in the new Lockerbie appeal. He states:

"Very little is known about this document. We know that it was obtained from a foreign country, which is not the United States or one of its agencies. The document is rumored to obliterate the thesis of the bomb being activated by a MST-13 timer and the Thurman fragment. The government argues that the PII is needed, surprisingly not for National Security reasons, but to safeguard the good relation of the UK with the country that provided the document. Lastly, the document was passed to the UK in 1996.

"Yesterday, I was informed that the document was delivered on Sept. 13, 1996. The date leaves me with little doubt that the document is the testimony of Iranian defector Abolghasem Mesbahi who alleged that Tehran, not Tripoli, had ordered the bombing of Pan Am 103."

The complete article can be read here.

Thursday, 29 May 2008

Procedural hearing: third day

The only report that I have been able to find on the internet about day three of the procedural hearing comes from Reuters Africa. It reads in part:

“Scotland's top judge called on the British government on Thursday to provide him with two secret documents relating to the bombing of a Pan Am airliner over the Scottish town of Lockerbie in 1988.

“Lord [Justice General] Hamilton, sitting with two other appeal court judges in Edinburgh, said the lawyer representing the government should ‘produce for the court the documents in question ... subject to appropriate security measures being in place within seven days.’

“He said the judges would consider the documents, which British Foreign Secretary David Milliband has declared secret under a Public Interest Immunity (PII) order.

“Lord Hamilton said the judges would weigh up how important it was that the appeal be heard in a closed court, to which not even the defence team could be admitted for security reasons.”

There is, I am sure, no question of the appeal being heard behind closed doors. What is at issue is whether the question of disclosure of the documents should be decided in camera.

That this is, in fact, the position seems clear from the BBC News report that has just been posted. There will be a closed session after the documents have been produced to the judges, who will then decide what further disclosure (if any), and to whom, should be made.

Newspaper reports on day two of procedural hearing

The Herald's report on yesterday's proceedings at the procedural hearing contains the following passage: "Margaret Scott, QC, for the defence, told the court that she did not object in principle to a closed hearing nor to the appointment of a special advocate. The hearing continues today."

Similarly, the short report in The Scotsman states: "Lawyers for the Lockerbie bomber accepted yesterday that there could be a private hearing in his appeal, but voiced misgivings about a lack of detail."

This seeming acceptance of the possibility of a closed hearing and special counsel strikes me as mildly surprising. But I suspect that it is simply a very reluctant fall-back position from the defence's strong primary submission that disclosure of the document should be ordered by the court to Megrahi's legal team without restrictions.

The report in The Times makes no mention of the defence concession.

Wednesday, 28 May 2008

Former Iranian President blames Tehran for Lockerbie

This is the headline over a lengthy and detailed article today in OhMyNews International by Dr Ludwig de Braeckeleer. The President in question is Abolhassan Bani-Sadr and the statement about Iran's ordering the destruction of Pan Am 103 (in retaliation for the shooting down of an Iranian Airbus by the USS Vincennes) came during an interview with Dr De Braeckeleer on 16th May.

The full article can be read here.

Procedural hearing: second day

It appears that the Lord Advocate does not agree with the Advocate General’s suggestion that the solution to the impasse over the disclosure of the mysterious foreign document would be for it to be disclosed to special (security-vetted) counsel rather than to Megrahi’s regular legal team.

Ronnie Clancy QC, appearing for the Lord Advocate, suggested that the way forward might be for limited disclosure – perhaps by way of a summary of the document – to be made to Megrahi and his lawyers. He is reported as saying, “The principle about involving the defence to the maximum extent looms large here. The Lord Advocate is mindful of the difficulty that the petitioner [Megrahi] would have in bringing a ground of appeal without even limited disclosure." He acknowledged that the Advocate General, who represents the UK Government in legal matters north of the border, may be "less enthusiastic" about the idea. "I don't understand the Advocate General to have ruled out limited disclosure at this stage," he added.

As might be expected, Megrahi’s counsel are strongly opposed to the Advocate General’s proposal and to anything less than full disclosure of the document to Megrahi’s current legal representatives.

Maggie Scott QC, senior counsel for the Libyan, is reported as saying: "Megrahi's position here is that he wants disclosure of these documents in order to exercise his right of appeal. My main concern is any proposed procedure which determines the substance of the appeal taking part in the absence of Megrahi or his defence counsel."

The report on the BBC News website can be read here.

[Reports on the first day of the hearing by Scotland's two daily "heavies", The Herald and The Scotsman, can be seen here and here.]

Tuesday, 27 May 2008

Today's procedural hearing

The BBC News website reports today's procedural hearing under the headline "Lockerbie documents security plea" and indicates that, as anticipated, the Advocate General for Scotland representing the United Kingdom Government wishes the substantive issue to be argued behind closed doors, with specially vetted counsel (rather than Megrahi's regular legal representatives) being appointed to protect Megrahi's interests at the hearing.

The Sun has a somewhat longer report of the proceedings, which can be read here.

Megrahi's counsel have not yet been heard in reply to the Advocate General's proposals. The hearing is scheduled to continue on Wednesday and Thursday.

Zeist appeal must be seen to be fair

This is the heading over a letter from Dr Jim Swire in today's issue of The Herald, in reply to the recent letter from the Crown Office. It reads:

"The Crown Office is quite right in saying that the Westminster Government is responsible for the imposition of a Public Interest Immunity (PII) certificate over this "document from a Foreign Power".

"The Westminster decision over the PII certificate followed representations to it from Scotland's Advocate General, after discussions in the High Court in Edinburgh: that is what he is there for, rightly or wrongly, under the rules of devolution.

"The information in the document, whether important or not to the case, appears to have influenced the Scottish Criminal Cases Review Commission (SCCRC) into declaring that the Zeist Lockerbie bombing trial might not have been fair. So long as that information continues to be available to the prosecution, but not the defence, the whole process will continue to be seen as unfairly biased towards the prosecution.

"The Crown Office does not mention that it is opposing, in the High Court, the defence request to widen the grounds for this appeal to include all material now available, rather than simply the grounds presented by the SCCRC. Nor does it mention that it opposes in the High Court the defence's request for full access to all the material from Zeist, for forensic and other purposes.

"Can any of these three issues be denied to the defence, if the appeal is to be seen as fair?

"There is no way that such obstruction from Westminster via a PII certificate can be seen as in the interests of the Scottish public, but the High Court will hold diets on all three issues, two out of the three are opposed by the Crown Office, not Westminster."

Sunday, 25 May 2008

Public interest immunity

The purpose of the hearing that is due to begin in the Criminal Appeal Court on Tuesday, 27 May is to decide whether to uphold or reject the United Kingdom Government’s assertion of public interest immunity (PII) in respect of a document, emanating from a foreign country (not the United States of America), that the Scottish Criminal Cases Review Commission regarded as of such significance that the Crown’s failure to disclose it at the Lockerbie trial may have given rise to a miscarriage of justice.

As a distinguished Scottish judge said in 1968 in a case in the House of Lords: “It is universally recognised that there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.”

What the court has to do is to assess the harm, if any, that would be done to the national interest through disclosure, and weigh that against the harm that would be done to the administration of justice (eg the likelihood, or the possibility, that an unjustified conviction might be upheld) if disclosure were denied. In this balancing exercise, the court must consider what aspects of the UK’s national interest would be harmed by disclosure (eg national security; relations with friendly foreign governments) and what the extent and gravity of that harm would be. Before the Government’s PII claim can succeed, this potential harm must outweigh the public interest in (and the European Convention on Human Rights requirement of) the fairness of criminal proceedings, which involves an accused person’s having access to all relevant material that might assist his defence.

In the past, PII claims have been relatively frequently been upheld in civil cases, but only rarely upheld in criminal cases, where the liberty of the accused person is at stake. And given that the document in question was already in the hands of the Crown at the time of the Lockerbie trial in 2000, I suspect that the court will take some convincing that serious harm would be done to the UK’s national interest by its disclosure today, some eight years later.

Friday, 23 May 2008

Crown Office response on PII issue

The Deputy Crown Agent has today a letter in The Herald making it clear that any attempt to have the PII issue discussed behind closed doors, or to propose that any disclosure should be to "special counsel" and not to Megrahi's regular lawyers, would be at the instigation of the UK Government and its Scottish representative, the Advocate General, and not at the instigation of the Scottish prosecutor, the Lord Advocate. It reads as follows:

“I am concerned your readers may have been misled as to the position of the Crown in a matter of considerable public importance (Bid to ban lawyers in secret hearings, and accompanying editorial, May 22).

“The Appeal Court has set three days aside next week to hear proposals from the Advocate General, representing the United Kingdom Government, the Crown and the representatives of Abdelbaset Ali Mohmed al Megrahi, on the procedure the court should follow when hearing arguments on the issue of Public Interest Immunity (PII) which has arisen in the appeal.

“The claim of PII in the Lockerbie appeal has been taken by the UK Government, not by the Lord Advocate. The UK Government is represented by the Advocate General.

“The court hearings next week will take place in public and it will be entirely a matter for the court to determine whether any future hearings in private are required.

“The Lord Advocate, as public prosecutor, has a responsibility to ensure that all criminal proceedings in Scotland, including appeals, are conducted fairly.

“It is the UK Government, and not the Crown, that has raised the issue of PII. Next week's hearing will enable the court to decide what further procedure is necessary, but there is no question of the Crown seeking to have next week's hearing in private, far less excluding the appellant's legal team from participating, as suggested in your editorial.

“The purpose and nature of next week's court hearing had already been discussed in open court, with journalists present, in February 2008.”

Thursday, 22 May 2008

Concern at Lockerbie lawyer claim

This is the heading over the BBC News website's coverage of the story that the UK Government is proposing that the PII issue be resolved by the Appeal Court behind closed doors and, perhaps, through the mechanism of disclosure to specially vetted counsel rather than to Megrahi's existing legal team. Megrahi's solicitor, Tony Kelly, is quoted, as is a spokesman for the UK Government's Scottish legal representative, The Advocate General for Scotland. The full article can be read here.

Fourth procedural hearing

A procedural hearing on whether to uphold or reject the United Kingdom Government’s claim of Public Interest Immunity (PII) in respect of the foreign document relating to timers (the non-disclosure and contents of which formed grounds on which the Scottish Criminal Cases Review Commission held that there might have been a miscarriage of justice in the Lockerbie trial) is to be held in the High Court of Justiciary in Edinburgh on Tuesday, 27 May 2008.

Informed observers anticipate that the Lord Advocate and the Advocate General for Scotland (representing the UK Government) will seek to argue that the hearing should be held behind closed doors because of the sensitivity of the material to be discussed; and that, if disclosure of the document is ordered by the court, it should not be to the appellant and his legal team, but to special counsel selected for the purpose and vetted in advance by the Crown. This is a form of disclosure that has been judicially recognised in England (and is sometimes – but not often – resorted to) in terrorism trials where the argument is that disclosure directly to the accused and his lawyers might prejudice on-going terrorism investigations. It is difficult to see how that rationale could apply to the Lockerbie appeal, where the crime was committed almost twenty years ago; the trial concluded over seven years ago; and, as far as anyone can tell, there are no continuing investigations being conducted into the affair since, the authorities confidently assure us, the Lockerbie trial established once and for all who was responsible for the crime.

Earlier posts on this blog on the PII issue can be found here and here and here.

Today's issue of The Herald has articles on the subject entitled "Bid to ban Lockerbie lawyers in secrets hearing" and "Another twist in controversy surrounding Lockerbie trial" and an editorial entitled "Lockerbie evidence".

The other major preliminary issue that remains to be decided is the fundamental one of the scope of the appeal. Are Megrahi’s grounds of appeal to be limited to those issues which the Scottish Criminal Cases Review Commission decided might have given rise to a miscarriage of justice; or can his grounds cover other issues as well, including those that were specifically not accepted by the SCCRC? A procedural hearing on this subject is to be held (before five judges, since the Crown is seeking to overturn an earlier case decided by three judges) at the end of June. Relevant posts on this blog can be found here and here.

Monday, 19 May 2008

In praise of the 'subversive' documentary

This is the title of a post earlier today on Kurt Rudder's blog. It deals with the importance of documentary films challenging the "official" version of events. One paragraph reads:

"There is a hunger among the public for documentaries because only documentaries, at their best, are fearless and show the unpalatable and make sense of the news. The extraordinary films of Allan Francovich achieved this. Francovich, who died in 1997, made The Maltese Double Cross - Lockerbie. THIS destroyed the official truth that Libya was responsible for the sabotage of Pan Am 103 over Lockerbie in 1988. Instead, an unwitting 'mule', with links to the CIA, was alleged to have carried the bomb on board the aircraft. (Paul Foot's parallel investigation for Private Eye came to a similar conclusion.) The Maltese Double Cross - Lockerbie has never been publicly screened in the United States. In this country, the threat of legal action from a US Government official prevented showings at the 1994 London Film Festival and the Institute of Contemporary Arts. In 1995, defying threats, Tam Dalyell showed it in the House of Commons, and Channel 4 broadcast it in May 1995."

The full text can be read here.

The post appears to be simply a reproduction of an article by John Pilger published on 16 September 2006, which can be read here.

Saturday, 17 May 2008

Lockerbie searcher reflects on a life of saving lives

This is the title of an article in The Royal Gazette (Bermuda) about David Whalley, who was one of the earliest on the scene of the Lockerbie disaster.

The full article can be read here.

Thursday, 15 May 2008

The Benghazi trial and the Lockerbie trial

Here is an excerpt from an article on the trial of Bulgarian medical personnel in Libya on charges of deliberately infecting children with the HIV virus, from a blog entitled Clean Postings:

"The trial has been lampooned by Amnesty International, Lawyers Without Borders, the UN High Commissioner for Human Rights, the EU, Germany, the US and Bulgaria. However, without hearing from the Libyans, I am unable to come to a definitive conclusion. I have to rely on the credibility of the media, scientists, the governments of the West, international NGOs and the UN.The scientists are, to my mind, the most believable of the lot. Their consensus points to the innocence of the accused. However, the scientific evidence has to be subjected to the rules and procedures of the court (remember the OJ Simpson case?) and I am ignorant of those.How about the governments and international NGOs? The Benghazi case mirrors the trial and conviction of alleged Lockerbie bomber Abdelbaset Ali Mohmed Al Megrahi. That trial too was denounced by Professor Hans Köchler, who was appointed as UN observer by UN Secretary-General Kofi Annan, as a politically motivated show trial and a spectacular miscarriage of justice. None other than Lord Fraser of Carmyllie, who drew up the 1991 indictment against the two accused Libyans and issued warrants for their arrest, has cast doubt upon the reliability of the main prosecution witness, Tony Gauci. Lord Fraser criticised the Maltese shopkeeper for being not quite the full shilling and an apple short of a picnic.In fact, evidence points to the framing of Libya as a scapegoat in that incident where 270 people lost their lives after a bomb exploded on board Pan Am Flight 103 as it overflew the Scottish town of Lockerbie. In 2005, a retired senior Scottish police chief gave defence lawyers a signed statement, which confirmed the claims made in 2003 by a former CIA agent that his CIA bosses actually wrote the script to incriminate Libya. He accused American intelligence agents of planting a circuit board fragment, identified as part of a sophisticated explosive timing device made by Swiss firm Mebo and only supplied to Libya and the East German Stasi. In an interview with Al Jazeera, Tam Dalyell, the former Labour MP who played a crucial role in organising the trial at Camp Zeist in the Netherlands, declared that Libya had nothing to do with the bombing. He accuses Iran of contracting the Popoular Front for the Liberation of Palestine - General Command (PFLP-GC) to carry out the atrocity, in retaliation for the downing of an Iranian civilian airliner by a US Navy warship. On July 3, 1998 Iran Air Flight 655 was shot down by the U.S.S. Vincennes killing all 290 passengers and crew as the plane flew over the Strait of Hormuz in the Persian Gulf. In spite of the fact that the US ship was at the time of the shooting operating illegally in Iranian territorial waters, the plane was flying within an internationally recognised air corridor, and the US military issuing a statement holding the crew accountable for the shooting, the US refused to apologize and to accept responsibility and liability for the incident. At a news conference on 2 August 1988, then-Vice President George H. W. Bush declared, I will never apologize for the United States of America."

The full article can be read here.

Friday, 9 May 2008

Iranian resistance group claims Iran responsible for Pan Am 103

In a further article on the OhMyNews International website, Dr Ludwig de Braeckeleer reports that the National Council of Resistance of Iran (NCRI) claims that Iran was responsible for the destruction of Pan Am 103 over Lockerbie. The article reads in part:

'The NCRI unambiguously blames Tehran for the bombing of Pan Am 103 over the town of Lockerbie. On their official Web site one can read the following.

'"The policy of kowtowing to the Iranians goes back a long way. It started in the late 1980s when Sir Geoffrey Howe, the then foreign secretary, attempted to establish a constructive dialogue with the mullahs in what proved a futile attempt to persuade Teheran to free British hostages in Lebanon.

'As part of this policy, the British government took the shameful decision to drop its claim that the Iranians had masterminded the Lockerbie bombing that killed 270 people in December 1988, even though British intelligence uncovered significant evidence of Iranian involvement."'

The full text of the article can be read here.

Wednesday, 7 May 2008

Lockerbie: the doctor's strange story

This is the title of another article by the indefatigable Dr Ludwig de Braeckeleer on the OhMyNews International website. In it he tells of the experiences of police surgeon Dr David Fieldhouse at Lockerbie during the hours immediately following the destruction of Pan Am 103 and in the months and years that followed and, in particular, of his identification of the body of US intelligence officer, Chuck McKee; and of (fortunately unsuccessful) attempts by the Scottish police and the Scottish Crown Office to discredit him.

Monday, 5 May 2008

Proposed US-Libya deal angers Pan Am Flight 103 families

The following article appeared on the CNN website late yesterday evening:

Nearly 20 years after the terror bombing aboard Pan Am Flight 103 killed 189 Americans, the Bush administration is trying to resolve a bitter dispute between U.S. terror victims and Libya -- while still boosting oil supplies.

The victims' families say Libya, which admitted its involvement in the attack, hasn't fully compensated them for the bombing. [Note by RB: Libya has never, in fact, admitted involvement in the attack. What it has done is to accept responsibility for the acts of Libyan state employees, whatever those acts may have been. If Abdelbaset Megrahi's current appeal succeeds, there will be no extant Libyan admission of responsibility for the Lockerbie tragedy.]

And the relatives accuse the administration of letting the north African nation off the hook by trying to ease limits on investment in Libya before the full payments are made.

The Bush administration wants to give Libya a waiver on a law that allows terror victims to sue the country as well as the U.S. companies that are eager to do business with Libya. The law has halted billions of dollars in contracts between U.S. companies and Libya and slowed exploration for new oil supplies because of questions about liability.

"Are we willing to trade the blood of Americans for oil?" Kara Weipz, president of Victims of Pan Am Flight 103, told CNN. "If Libya is really serious about their commitments to the victims, why don't they just do what they are supposed to do?"

Americans made up the majority of the 270 people killed when the Pan Am flight exploded over the Scottish town of Lockerbie on December 21, 1988. Libya has accepted responsibility for the involvement of its intelligence officials, one of whom was convicted of masterminding the bombing. A second official was acquitted.

Libya agreed to pay each family $10 million and has paid $8 million to each already. But Weipz says the families will keep fighting for the rest. "We are not ready to back down," she said.

Secretary of State Condoleezza Rice and Defense Secretary Robert Gates have told congressional leaders that the waiver would benefit U.S. national security, economy and foreign policy interests.

The administration says it sympathizes with the families, but Rice contends that U.S. interests could be hurt if the government doesn't fulfill rewards it promised to Libyan leader Moammar Gadhafi for giving up weapons of mass destruction. "Obviously, when you have a major strategic shift of the kind that Libya has made, you want some affirmation," Rice told reporters earlier this year.

That position differs significantly from the one the administration took six years ago, when it promised the families that the United States would not resume any kind of ties with Libya until it accepted responsibility for the Lockerbie bombing and paid appropriate compensation.

The oil companies are letting the U.S. Chamber of Commerce take the lead in lobbying for the exemption from the law. "It's an horrific incident, and Libya should pay up," said Bruce Josten, executive vice president of the U.S. Chamber of Commerce. "That's very different from what this provision in law now provides -- it actually puts American companies on the hook for that claimant's interests and payment."

Meanwhile, Libya is spending millions of dollars hiring The Livingston Group, a Washington lobbying firm headed by former Republican congressman Robert Livingston, to make its case on Capitol Hill.

Libyan Ambassador Ali Aujali told CNN in a written statement that his government relies "on the good faith of the United States not to create impediments that could delay a positive result."

The State Department says it's working with Libya to strike a final deal to settle all victims' claims, as oil companies and Libya are lobbying Congress for waivers.

Thursday, 1 May 2008

Justice and the SNP Government

In today's issue of The Herald, the paper's Scottish political editor, Douglas Fraser, has an article entitled "Honeymoon seems far from over". It is effectively a report card on the SNP Government's first year in office in Scotland. Under the heading "Justice" he writes: "While the Lockerbie bomber provided a platform on which to mount a defence of Scots law's distinctiveness, a successful appeal by Abdelbaset al Magrahi [sic] could spark a crisis of confidence."

This is certainly, in some respects, true. If Megrahi's appeal succeeds (as it manifestly should) and particularly if it is decided that, on the evidence at the trial, he should never have been convicted, then serious questions about Scotland's criminal justice system will need to be urgently addressed. There are those who will say that this is not before time. On the other hand, if the appeal is allowed, it will also show that high-profile miscarriages of justice can be rectified within the system.

The full article can be read here.