Megrahi’s release: Kenny MacAskill was right

[This is the headline over a recent post on the blog of distinguished Scottish lawyer Jonathan Mitchell QC. The following are extracts:]

If Megrahi was indeed rightly convicted of mass murder, which I doubt, it is not in doubt that he acted on the orders of the Libyan government. He was a senior member of its intelligence service. Yet both the UK and US governments have for some years been on friendly terms with the people who, they say, ordered the desctruction of PanAm 103. They dine with them. They have cocktails with them when they meet at mutual friends. The week before Megrahi’s release, as reported in the Washington Post, a delegation of four American senators led by John McCain met with Colonel Gaddafi to discuss the sale by the US to Libya of military equipment. In April, Hilary Clinton welcomed another member of the Gaddafi family, the régime’s National Security Adviser, to Washington. She said “We deeply value the relationship between the United States and Libya. We have many opportunities to deepen and broaden our cooperation. And I’m very much looking forward to building on this relationship. So, Mr. Minister, welcome so much here.”

There is nothing wrong with prosecuting and jailing the foot-soldiers of terrorism. There is however something deeply wrong with claims that the foot-soldiers should die in prison, because their crimes are so serious, while their commanders should be forgiven, because the identical crimes have no continuing importance and because, as Republican senator Lugar says, “we need to ensure that more Americans are able to travel to Libya to do business“. The families are entitled to resent the release of Megrahi, while recognising that they can do nothing about the attitude of their governments. But British and American politicians are not. They sold this particular pass a long time ago.

When Tom Harris MP asks with such sickening sanctimoniousness “why was he considered for compassionate release when others whose crimes were, arguably, less (in quantative terms only; not in relation to the devastation caused to victims’ families) would almost certainly not be?” he might remember that his government, his party, believe that those whose criminality at least equal to Megrahi- those who gave Megrahi his orders- should be fêted.

When Iain Gray MSP claims, as he no doubt will again tomorrow at Holyrood, that if he’d been Justice Secretary he wouldn’t have released Megrahi*, a claim incidentally that is hard to believe of someone whose relationship with Westminster is that of glove-puppet to hand, he might ask himself how he distinguishes this particular murderer. “While one can have sympathy for the family of a gravely ill prisoner, on balance our duty is to honour and respect the victims of Lockerbie and have compassion for them.” ‘On balance’ indeed! Do we ‘honour and respect‘ them by wining and dining with those who ordered the bombing?

Historically, war criminals gaoled for their crimes have been held until the state holding them has moved on. Erhard Milch was responsible for tens (perhaps hundreds) of thousands of deaths. In 1947 he was sentenced to life imprisonment. In 1951 that was commuted to fifteen years. In 1954 he was released. A far more serious criminal than Megrahi, he was released because the British and American governments of the day had lost interest. He was not terminally ill; he lived another eighteen years. More recently, the Westminster government released seventy-eight murderers under the Good Friday agreement. Some served only weeks or months. There is no practice in Britain of treating such crimes as the Lockerbie bombing as uniquely disqualifying from compassionate release. In applying well-established principles to this particular prisoner, principles first introduced into our law by a Conservative government, Kenny MacAskill cannot be criticised for failing to follow tradition.

The attack on the release of Megrahi, made by people who turn a blind eye to the cosy UK/US relationship with his line managers, is deeply hypocritical. Thus the call to ‘boycott Scotland’; why not boycott Indiana, for Senator Lugar’s hard work, quoted above, to forge relationships between US and Libyan security? And much of it is just ignorant. FBI Director Robert Mueller, in his much-quoted open letter to MacAskill, obviously intended primarily for US domestic consumption, thought the Justice Secretary was a ‘prosecutor‘. Geoffrey Robertson QC, who ought to know better, writes “I have read the judgment of the Lockerbie court and the two appeal judgments upholding it…” . What second appeal judgment was that? He’s just inventing it; it was never written.

We return to the straightforward facts that Megrahi is terminally ill; he is going home to die. On the undisputed facts, he falls within policy, dating back to the McConnell administration, which provide for compassionate release following the 1993 Act. As Kenny MacAskill’s statement pointed out (and I haven’t seen this description challenged as inaccurate) “guidance from the Scottish Prison Service, who assess applications, suggests that it may be considered where a prisoner is suffering from a terminal illness and death is likely to occur soon. There are no fixed time limits but life expectancy of less than three months may be considered an appropriate period. The guidance makes it clear that all prisoners, irrespective of sentence length, are eligible to be considered for compassionate release. That guidance dates from 2005“. So he had a legitimate expectation that that policy would be followed. Should that have been lost because Jack McConnell’s buddies don’t want attention to be given to their palling-up to Libya? Can Cathy Jamieson or Jim Wallace, who as justice ministers granted between them over twenty compassionate release applications, point to a single case in which an application for a terminally-ill prisoner was refused on their watch? I doubt it. (...)

Kenny MacAskill has been a fine Justice Secretary. The case against him is a failure to participate in hypocrisy and dishonesty, and that may be evidence of a lack of political realism. But good for him. He did the right thing for the right reasons.

*In fact what Iain Gray seems to be saying is that if he were First Minister he would have given unconstitutional orders to the Justice Secretary not to do so.