‘Deal in the desert’ put Abdul Baset Ali al-Megrahi on path to freedom

[This is the headline over a long article in The Times. It reads in part:]

Supported by a walking stick, and wearing clothes that hung off his clearly diminished frame, Abdul Baset Ali al-Megrahi did not look like the biggest mass murderer in British history as he boarded the flight yesterday that would take him home.

The Libyan known to the world as the Lockerbie bomber returned to his native country a free man after being granted compassionate release by the Scottish government, a decision that some believe has its roots in a deal made between Tony Blair and Colonel Muammar Gaddafi more than two years ago.

The notorious “deal in the desert” was a significant step towards Libya’s rehabilitation among world leaders after it was held responsible for the explosion of Pan Am Flight 103 in December 1988, and also helped to clear the way for BP to invest £450 million in exploring Libya’s vast untapped reserves of oil. The prisoner transfer arrangement that the leaders agreed was also the first indication that al-Megrahi could one day return home.

By the time the memorandum of understanding between the two countries was announced, Scotland’s first nationalist government had come into power and Alex Salmond, the SNP First Minister, was furious that he had not been consulted. The issue became the subject of the first serious cross-border row — in a letter to Mr Blair, the First Minister made it clear that he thought his behaviour “unacceptable”.

“This government is determined that decisions on any individual case will continue to be made following the due process of Scots law,” Mr Salmond said.

The storm subsided when Downing Street claimed that the agreement did not extend to al-Megrahi, but by the end of the year a deal that involved the Libyan was agreed, with Scottish ministers being given a veto over any future request.

At the time it seemed unlikely that a transfer deal would ever be pursued. In June 2007 the Scottish Criminal Cases Review Commission had referred al-Megrahi’s case back to court, highlighting six areas in his original trial that could have constituted a miscarriage of justice. A series of hearings, some of which were held behind closed doors, started at the High Court in Edinburgh (...)

In the following months rumours began to circulate that al-Megrahi’s health really was in terminal decline. Reports suggested that his cancer had spread to his bones, and supporters urged the courts to speed up his appeal against the conviction. In April the first block of hearings in his appeal began in Edinburgh.

As defence lawyers were preparing their submissions Westminster was laying the grounds for an alternative option, and on April 29 this year the controversial prisoner transfer treaty was ratified. A week later the Libyan Government created a diplomatic headache for Scottish ministers by formally applying for al-Megrahi’s repatriation.

Consideration of the request was the sole responsibility of Kenny MacAskill, the Scottish Justice Secretary and a lawyer by trade. As part of his deliberations he began to meet all “relevant parties”. Among those he spoke to were families of the British victims and relatives of the 11 Lockerbie residents who lost their lives when falling wreckage crashed on to the ground.

Not all of them held the same view, but many of the British relatives were in agreement: al-Megrahi, they said, should not be in jail. The families of American victims were also given a say. In an emotional video-conference call between Washington and Edinburgh relatives of the 189 American victims — including 35 young students from Syracuse University — delivered the directly opposite verdict, calling for the Libyan to remain behind bars. Extracts of their testimonies, released this week, reveal the strength of their feeling. (...)

Just as it seemed that Mr MacAskill was caught in a no-win situation, the stakes were raised even higher. On July 24 al-Megrahi lodged another application with the Scottish government, this time seeking to be freed on compassionate grounds.

Yesterday the text of this plea was made public for the first time. His letter states: “I am terminally ill. There is no prospect of my recovery. My continued incarceration in HMP Greenock is not conducive to my wellbeing as my life nears it end ... I have never publicly taken a stance which would seek to impugn your nation and its system of justice. I have behaved with respect to the due legal process which I am subject to. It is with the same respect that I make the application to you to enable me to return to my country and my family with what is left of my life, as a son, husband, father and grandfather.” (...)

The decison over the fate of the Lockerbie bomber is quasi-judicial in that the Scottish Justice Minister must act free from political considerations. The opposition parties in Scotland instinctively refrained from commenting on the issue for fear of appearing to undermine the judicial process.

The united front broke down, though, at the sight of the Justice Secretary’s car driving through the gates of HMP Greenock before he granted the mass murderer the kind of face-to-face meeting that any other killer would be denied.

Mr MacAskill said that he was duty bound to hold the meeting because under the prisoner transfer agreement al-Megrahi had the right to representation. The opposition argument was that representation from his defence team was sufficient under the terms of the agreement.

The charge levelled at Mr MacAskill that he struck a deal with al-Megrahi that day is likely to follow him despite fierce denials. The Scottish government says it was a coincidence that al-Megrahi went on to drop his appeal against conviction. Mr MacAskill faced further allegations of resorting to leaks in an unsubtle attempt to gauge reaction to the biggest decision taken by the nationalist government. (...)

Suspicions of a deal deepened when al-Megrahi’s defence team withdrew his appeal at the High Court in Edinburgh. The court was told that the Lockerbie bomber believed that the course of action would increase his chances of being sent home.

The Lord Advocate’s failure to withdraw the Crown’s outstanding appeal against al-Megrahi’s conviction rendered as inadmissable his application to be considered under the prisoner transfer agreement, with the legal process incomplete.

The only remaining option for the Scottish government was the one that it has long been suspected of favouring — release on compassionate grounds.

With medical reports making clear that the criteria for such a decision had been met, and a recommendation from the parole board in favour of release on his desk, Mr MacAskill was faced with making the lonely decision for which his post dictates he must take responsibility.

When Mr Salmond declared this week that “international power politics” would not play a part in the decision, the die was cast.

Mr MacAskill, who was little-known outside of Holyrood before the implications of the case became clear, had decided to ignore the will of the Obama Administration and instead adhere to what he believes to be a key Scottish virtue — compassion.

[Further coverage in The Times can be read here.]